Flournoy et al v. Johnson & Johnson et al
Filing
50
ORDER AND REASONS GRANTING IN PART AND DENYING IN PART 38 Motion to Dismiss for Failure to State a Claim as set forth in document. Signed by Judge Ivan L.R. Lemelle on 11/1/2016. (mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NANCY FLOURNOY, ET AL.
CIVIL ACTION
VERSUS
NO. 15-5000
JOHNSON & JOHNSON, ET AL.
SECTION “B”(2)
ORDER AND REASONS
Before the Court is Depuy Synthes Sales, Inc. and Synthes USA
Products,
LLC’s
(collectively
referred
to
as
“Synthes”
or
“Defendants”) motion for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c). Rec. Doc. 38. Plaintiffs
Nancy and David Flournoy (collectively referred to as “Plaintiffs”
or “the Flournoys”) timely filed an opposition memorandum. Rec.
Doc. 42. Thereafter, the Court granted Defendants leave to file a
reply memorandum. Rec. Doc. 46. For the reasons outlined below,
IT IS ORDERED that the motion is GRANTED in part and DENIED
in part.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of a surgical procedure performed on
Nancy Flournoy at LSU Interim Public Hospital in which a “DHS/DCS
Dynamic Hip and Condular Screw System” was implanted in her left
hip. Rec. Doc. 28 at 3-4. Less than one year after the surgery, xrays showed that that “the screws from the compression plate were
broken and the plate separated from the femoral shaft.”
Id.
Plaintiff’s physicians were thus required to remove the implanted
1
devices. Id. at 4. Plaintiffs allege that, upon removal, it was
discovered that the devices failed due to inherent defects. Id.
Plaintiffs filed suit in this Court on October 6, 2016 seeking
damages for a range of injuries, including but not limited to
physical
injuries,
pain
and
suffering,
disability,
medical
expenses, loss of earning capacity, and loss of enjoyment and
quality of life. Rec. Doc. 1 at 20-21.
On March 4, 2016, Plaintiffs filed a First Amended Complaint
naming only two defendants: Depuy Synthes Sales, Inc. and Synthes
USA Products, LLC. Rec. Doc. 28 at 2. They alleged violations of
the Louisiana Products Liability Act (“LPLA”), the warranty of
redhibition, and the Louisiana Unfair Trade Practices Act and
Consumer
Protection
negligence,
failure
Law
to
(“LUTPA”),
warn,
unjust
as
well
as
enrichment,
consortium. Id. at 5-18. The parties then
claims
and
loss
for
of
stipulated to the
dismissal of the following claims: breach of implied warranty,
negligence, unjust enrichment, violation of the LUTPA, and the
Plaintiffs’ prayer for exemplary damages. Rec. Docs. 36, 37.
Defendants then filed the present motion seeking dismissal of all
of Plaintiffs’ remaining claims.
II.
THE PARTIES’ CONTENTIONS
The Defendants’ primary argument is that the entire complaint
should be dismissed for failure to state a claim under the Supreme
Court’s pleading standards outlined in Bell Atlantic Corporation
2
v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.
662 (2009). Rec. Doc. 38-1 at 1. In the alternative, Defendants
contend that several individual claims should still be dismissed:
(1) either Count I or Count V as duplicative failure-to-warn
claims; (2) the redhibition claim as an improper claim for personal
injury; and (3) the loss of consortium claim as derivative of Nancy
Flournoy’s primary claims. Id.
In opposition, Plaintiffs argue that the pleadings are not
closed and thus it would be premature to grant judgment on the
pleadings under Rule 12(c). Rec. Doc. 41 at 1. Further, Plaintiffs
maintain
that
their
factual
allegations
are
sufficient
to
withstand scrutiny under Twombly and Iqbal. Id. Finally, if the
Court finds their allegations insufficient, they request time to
permit discovery so that they can once again amend their complaint.
Id. at 2. Accordingly, Plaintiffs urge this Court to deny the
motion.1
In reply, Defendants reassert that their motion is ripe
because pleadings are closed. Rec. Doc. 46 at 2. They also counter
Plaintiffs’ argument concerning the sufficiency of the allegations
We note also that, throughout their response memorandum, Plaintiffs attempt
to distract from the issues at hand by making vague allegations about Defendants
misleading them and failing to cooperate in discovery. They also seek sanctions
on these grounds. This Court will not consider such arguments in this context.
If Plaintiffs had an issue with Defendants’ compliance on discovery matters,
they should have filed a motion to compel or some other form of discovery motion
with the Magistrate Judge. Further, Plaintiffs’ request for Rule 11 sanctions
is procedurally deficient and thus not properly before the Court. See FED. R.
CIV. P. 11(c)(2).
1
3
by pointing to outdated law cited in Plaintiffs’ brief. Id. at 24. Further, Defendants argue that Plaintiffs’ allegation of a screw
fracture, standing alone, is insufficient to survive a Rule 12(c)
motion. Id. at 4-6. Lastly, they claim that discovery is irrelevant
to the present motion, meaning Plaintiffs’ request for further
discovery should be dismissed. Id. at 6-9.
III. LAW AND ANALYSIS
a. Legal Standard
Rule 12(c) of the Federal Rules of Civil Procedure permits a
party to move for judgment on the pleadings after the pleadings
are closed but early enough so as not to delay trial. The standard
for deciding a motion for judgment on the pleadings under Federal
Rule of Civil Procedure 12(c) is the same as that for a motion to
dismiss
under
Rule
12(b)(6).
In
re
Katrina
Canal
Breaches
Litigation, 495 F.3d 191, 205 (5th Cir. 2007). Accordingly, this
Court must accept all well-pleaded facts as true and view them in
the light most favorable to the non-moving party. See Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996). “To survive a motion to
dismiss,
a
complaint
must
contain
sufficient
factual
matter,
accepted as true, to state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
that
the
defendant
4
is
liable
for
the
misconduct alleged.” Iqbal, 556 U.S. at 678. “Factual allegations
must be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Bell Atl. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted). However, “[a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
b. Plaintiff’s LPLA Claims
Defendants
move
to
dismiss
Plaintiff’s
LPLA
claims
for
failure to plead sufficient facts to survive analysis under Twombly
and
Iqbal.
Defendants
claim
that
Plaintiffs
only
provide
a
recitation of the elements of the causes of action without any
factual support other than the allegation of a screw fracture.
Plaintiffs erroneously cite abrogated law to argue that Defendants
must demonstrate that Plaintiffs cannot prevail under “any set of
facts” to succeed on their motion to dismiss. See Rec. Doc. 42 at
9; Twombly, 550 U.S. at 561-63. Plaintiffs further argue that the
“defectiveness of the product is apparent [sic] reflected by the
screws from the composition plate physically breaking and in turn,
causing the entire plate to separate from the femoral shaft.” Rec.
Doc. 42 at 11.2
The Court acknowledges Plaintiffs’ argument that pleadings are not closed so
as to make Rule 12(c) applicable, but we find this argument clearly meritless.
See Beall Legacy Partner, L.P. v. City of Waxahachie, Tex., No. 05-1942, 2006
2
5
To state a claim under the LPLA, a plaintiff must allege that:
(1) the defendant is the manufacturer of a product; (2) the product
has a characteristic that renders it unreasonably dangerous; (3)
the plaintiff’s damage was proximately caused by that unreasonably
dangerous characteristic; and (4) the damage rose from a reasonably
anticipated use of the product by the claimant or another person
or entity. LA. STAT. ANN. § 9:2800.54(A). A product qualifies as
unreasonably dangerous if and only if:
(1) The product is unreasonably dangerous in
construction or composition as provided in R.S.
9:2800.55;
(2)
The
product
is
unreasonably
dangerous in design as provided in R.S. 9:2800.56;
(3) The product is unreasonably dangerous because
an adequate warning about the product has not been
provided as provided in R.S. 9:2800.57; or (4) The
product is unreasonably dangerous because it does
not conform to an express warranty of the
manufacturer about the product as provided in R.S
9:2800.58.
Id. at § 2800.54(B). The primary issues with Plaintiffs’ LPLA claim
is
that
it
fails
to
allege
sufficient
facts
to
support
the
unreasonably dangerous element.
With respect to Plaintiffs’ defective construction claim, the
Amended Complaint includes no factual allegations as to how the
product at issue deviated from the manufacturer’s specifications
WL 353471, at * 1 (N.D. Tex. Feb. 16, 2006) (“Rule 7(a) provides that the
pleadings are closed upon the filing of a complaint and an answer (absent a
court-ordered reply), unless a counterclaim, cross-claim, or third-party claim
is interposed, in which event the filing of a reply to a counterclaim, crossclaim answer, or third-party answer normally will mark the close of the
pleadings.”).
6
or
performance
standards.
The
defective
construction
or
composition claim is therefore insufficiently pled. See LA. STAT.
ANN. § 9:2800.55; Watson v. Bayer Healthcare Pharmaceuticals, Inc.,
No. 13-212, 2013 WL 1558328, at *4 (E.D. La. Apr. 11, 2013)
(finding that allegations of defective construction must include
facts about the condition or suggest how it deviated from its
intended design). With respect to the defective design claim, the
Amended
Complaint
does
not
include
sufficient
allegations
concerning an alternative design that could have prevented the
damage. Instead, Plaintiffs only summarily conclude that “[t]here
existed an alternate design for the product that was capable of
preventing the Plaintiff’s damages.” Rec. Doc. 28 at 5. It is thus
insufficient as only a formulaic recitation of the elements of the
cause of action. See LA. STAT. ANN. § 9:2800.56; Watson, 2013 WL
15558328 at *4-5 (finding that a claim of defective design must
include factual allegations as to how the design is defective and
what aspect of the design caused injury).
Plaintiffs’
inadequate
warning
claim
is
also
deficient
because it includes no allegations suggesting how the lack of
warning caused or led to Mrs. Flournoy’s injuries.3 See LA. STAT.
ANN. § 9:2800.57. See also Kennedy v. Pfizer, Inc., No. 12-1858,
For this same reason, we also
duplicative failure to warn claim
Defendants’ argument for dismissal
does not merit further discussion.
3
find it necessary to dismiss Plaintiff’s
under Count V. Plaintiffs’ response to the
of this duplicative claim is nonsensical and
See Rec. Doc. 42 at 19-20.
7
2013 WL 4590331, at *5 (W.D. La. Aug. 28, 2013) (noting that
plaintiffs must articulate a causal connection and that the court
will not presume such facts). Finally, Plaintiff’s breach of
express warranty claim is insufficient because it does not identify
the contents of any warranty or identify how that warranty induced
the Plaintiff to use the product.4 See LA. STAT. ANN. § 9:2800.58.
See also Aucoin v. Amneal Pharmaceuticals, LLC, No. 11-1275, 2012
WL 2990697, at *11 (E.D. La. July 20, 2012).
Plaintiffs’ LPLA claims are a prime example of the sort of
conclusory pleadings that Twombly and Iqbal sought to prohibit.
The only true factual allegations are: (1) that the Defendants
designed, manufactured, and sold the implant; (2) that an October
14, 2015 x-ray revealed that the screws from the compression plate
were broken and that the plate separated from the femoral shaft;
and (3) the physicians were forced to remove the implant devices.
Rec. Doc. 28 at 3-4. All other “factual allegations” are fairly
described as bare legal conclusions that are presented so as to
provide “a formulaic recitation” of the elements of the invoked
cause of action. Plaintiffs expect this Court to presume the facts
based upon their recitation of the relevant elements. This we
cannot do. See Kennedy, 2013 WL 4590331, at *5. The Flournoys LPLA
The Court notes that Plaintiffs also pled breach of implied warranty under
the LPLA. Rec. Doc. 28 at 10. However, such a claim is not cognizable under the
LPLA. See LA. STAT. ANN. § 9:2800.54. See also Jefferson v. Lead Industries Ass’n,
Inc., 106 F.3d 1245, 1251 (5th Cir. 1997); Ingram v. Bayer Corp., No. 02-0352,
2002 WL 1163613, at *2 (E.D. La. May 30, 2002).
4
8
claims therefore fail to meet the requisite pleading standards and
must be dismissed.
Plaintiffs alternatively request time to conduct discovery
and subsequent leave to amend or supplement their first amended
complaint. Rec. Doc. 42 at 12, 14, 16, 17. “Ordinarily, Rule 15(a)
of the Federal Rules of Civil Procedure governs the amendment of
pleadings . . . but it does not apply if an amendment would require
the
modification
of
a
previously
entered
scheduling
order.
Instead, Rule 16(b) governs the amendment of pleadings ‘after a
scheduling order’s deadline to amend has expired.’” Filgueira v.
United States Bank Nat’l Ass’n, 734 F.3d 420, 422 (5th Cir. 2013)
(internal citations omitted). Here, the deadline for amending
pleadings was February 15, 2016. Rec. Doc. 24. Thus, under Rule
16(b)(4), a “schedule may be modified only for good cause and with
the judge’s consent.” FED. R. CIV. P. 16(b)(4); see also Gentilello
v. Rege, 627 F.3d 540, 546 (5th Cir. 2010). “It requires a party
‘to show that the deadlines cannot reasonably be met despite the
diligence of the party needing the extension.’” Fahim v. Marriott
Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008) (citing S&W
Enters., LLC v. Southtrust Bank of Ala., NA, 315 F.3d 533, 535
(5th Cir. 2003)). “Four factors are relevant to good cause:
‘(1)
the explanation for the failure to timely move for leave to amend;
(2) the importance of the amendment; (3) potential prejudice in
allowing the amendment; and (4) the availability of a continuance
9
to cure such prejudice.’” Id. (quoting Southwestern Bell Tel. Co.
v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003)).
Here, Plaintiffs do not show good cause or even address the
Fifth Circuit’s four-part test. See O’Quin v. Gautreaux, No. 1498, 2016 WL 3538377, at *4 (M.D. La. June 22, 2016) (citing
Wachovia Bank, Nat’l Ass’n v. Schlegel, No. 09-1322, 2010 WL
2671316, at *3 (N.D. Tex. June 30, 2010)). Plaintiffs do argue
that Defendants misled them about the proper defendants. Rec. Doc.
42 at 4-5. Specifically, Plaintiffs claim that Defendants told
them prior to filing their amended complaint that those parties
named in the amended complaint were the proper parties. Id. at 5.
However, in their Rule 12(c) motion, Defendants admitted that a
different entity was responsible and noted that the parties were
working on a joint stipulation to substitute the appropriate
entity. Rec. Doc. 38-1 at 5-6, n. 1. Nonetheless, Plaintiffs do
not explain how this “apparent misrepresentation” has interfered
with their ability to state a valid cause of action under the LPLA.
The deadline for amending pleadings was five and a half months
before Defendant filed this Rule 12(c) motion for judgment on the
pleadings. Rec. Doc. 24. Despite the February 15, 2016 deadline
for amending pleadings, this Court granted Plaintiffs leave to
file an amended complaint on March 4, 2016. Rec. Doc. 27. The
amended complaint fails to state sufficient factual allegations to
survive Defendants’ Rule 12(c) motion. In their opposition to
10
Defendants’ motion, Plaintiffs “failed to apprise [this Court] of
the facts that [they] would plead in an amended complaint, if
necessary,
Moreover,
to
cure
any
[Plaintiffs]
deficiencies
failed
to
in
tender
[their]
a
pleadings.
proposed
Amended
Complaint setting forth these facts.” Gentilello, 627 F.3d at 546.
“At some point a court must decide that a plaintiff has had a fair
opportunity to make his case; if, after that time, a cause of
action has not been established, the court should finally dismiss
the suit.” Id. (quoting Jacquez v. Procunier, 801 F.2d 789, 792
(5th Cir. 1986)).
c. Plaintiff’s Redhibition Claim
While redhibition is not available as a theory of recovery
for personal injury against a manufacturer, it is still a viable
action against the manufacturer to recover for pecuniary loss.
Jefferson, 106 F.3d at 1251. Defendants contend that Plaintiffs’
Amended Complaint fails to properly state a claim for redhibition
because it does not allege the first required element: “that the
alleged defect rendered the subject device absolutely useless or
its use so inconvenient that it must be supposed that Ms. Flournoy
would not have bought it had she known of the defect.” Rec. Doc.
38-1 at 13-14 (internal alterations and quotation marks omitted).
Alternatively, if the Court finds the claim adequately pled,
Defendants urge the Court to dismiss it to the extent it seeks to
11
recover for personal injuries. Id. at 14. Plaintiffs maintain that
their redhibition claim is adequately pled.
We find the Amended Complaint minimally sufficient to state
a claim for redhibition. While Defendants argue that the first
element
is
not
sufficiently
pled,
Plaintiffs’
Complaint
specifically states that: “Had Plaintiff been aware of the defects
contained in the subject implant devices, she would not have
purchased
or
allowed
characteristics
implanting
rendered
the
said
implant
implant
devices
devices.
unfit
for
Said
their
intended purpose.” Rec. Doc. 28 at 14. Previously, Plaintiffs
identified
constitute
the
the
broken
screws,
defective
which
they
characteristic
apparently
in
the
deem
to
device.
Accordingly, the Amended Complaint just barely includes sufficient
factual allegations to support the first element of redhibition by
claiming that the implant was so inconvenient due to the defective
screws that Mrs. Flournoy would not have purchased it if she had
known of the defect. However, Defendants correctly argue that the
claim must be dismissed to the extent it seeks relief for personal
injuries. Plaintiffs’ redhibition claim is only cognizable insofar
as it seeks to recover for pecuniary loss. See Jefferson, 106 F.3d
at 1251.
d. Plaintiffs’ Loss of Consortium Claim
Defendants also seek dismissal of Mr. Flournoy’s loss of
consortium claim because it is derivative of Mrs. Flournoy’s
12
injury. Rec. Doc. 38-1 at 16. They argue that because all other
claims must be dismissed, so must the derivative loss of consortium
claim. However, we have already found that Plaintiffs’ Amended
Complaint has met the minimum pleading requirements with respect
to the redhibition claim. Accordingly, Mr. Flournoy’s loss of
consortium claim remains pending to the extent it is consistent
with the redhibition claim seeking pecuniary damages.
IV.
CONCLUSION
For the reasons outlined above,
IT IS ORDERED that the motion is DENIED with respect to
Plaintiffs’ redhibition claim to the extent it seeks relief for
pecuniary loss and with respect to the loss of consortium claim to
the extent it is consistent with the redhibition claim. However,
the motion is GRANTED in all other respects.
New Orleans, Louisiana, this 1st day of November, 2016.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?