Jeffries v. Boston Scientific et.al. et al

Filing 21

MEMORANDUM OPINION. Signed by Judge Roger W Titus on 8/10/2016. (c/m 8/10/2016 aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
*
*
*
*
*
*
*
*
*
*
*

MONICA JEFFRIES,
Plaintiff,
v.
BOSTON SCIENTIFIC
CORPORATION, ET AL.,
Defendants.

Case No. RWT 15-cv-3480

MEMORANDUM OPINION
On November 16, 2015, Plaintiff Monica Jeffries, proceeding pro se, filed this
product liability action, alleging she had been harmed by a Greenfield Inferior Vena Cava
Filter (“IVC filter”) “designed, manufactured, prepared, compounded, assembling [sic],
processed, labeled, marketed, distributed, and sold by” the Defendants “Boston Scientific
et.al. [sic]” and “Boston Scientific/Ray Elliott,” hereafter “BSC.” ECF No. 1. On
February 29, 2016, BSC moved to dismiss for lack of jurisdiction, lack of standing, and
failure to state a claim. ECF Nos. 12, 13. The issues have been briefed, and no hearing is
necessary. Local Rule 105.6. Because Jeffries’ Complaint suffers from multiple fatal
flaws, the Motion to Dismiss shall be granted, but Jeffries shall have thirty (30) days in
which to file an Amended Complaint that complies with the Federal Rules of Civil
Procedure and addresses the problems the Court outlines.
BACKGROUND
BSC “is a Delaware corporation with its principal place of business in
Massachusetts.” ECF No. 13, at 9. Jeffries is a Maryland resident, ECF No. 1, at 1, who
alleges that she was implanted with an IVC filter on March 29, 1995, ECF No. 17, at 5.
1

Jeffries asserts that this filter was the Greenfield IVC Filter made by BSC. ECF No. 16,
at 4. Jeffries bases this belief on “expert medical doctors, interventions, x-rays and
various scans, and finally the operative report 3/29/1995.” ECF No. 19, at 2. Jeffries
alleges that in March 2004, there was a recall on Stainless Steel Greenfield Vena Cava
Filter with 12Fr Femoral Introducer Systems manufactured prior to March 10, 2004.
ECF No. 1, at 5.
Jeffries alleges that the IVC filter has failed to work as intended and has caused
her “serious an[d] ongoing physical, emotional, and economic damages, heart issues,
migration and perforations.”

Id. at 2.

She filed this diversity action seeking

compensatory damages and punitive damages for the cost of all past current and future
medical expenses, as well as pain and suffering incurred as a result of the implantation of
the IVC filter. Id. at 24; ECF No. 16, at 18. The Complaint lists roughly1 seven causes
of action: (1)  negligence, (2) strict liability–failure to warn; (3) strict liability–design
defect; (4) strict liability–manufacturing defect; (5) breach of implied warranty of
merchantability; (6) negligent misrepresentation; and (7) loss of consortium for Jeffries’
grandchildren. ECF No. 1, at 16–23.
DISCUSSION
A federal district court is charged with liberally construing a complaint filed by a
pro se litigant to allow the development of a potentially meritorious case. Hughes v.
Rowe, 449 U.S. 5, 9 (1980). Nonetheless, liberal construction does not mean that a court
can ignore a clear failure in the pleading to allege facts that set forth a claim cognizable
in a federal district court. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir.

1

Not all of the claims are numbered.

2

1990). A district court may not rewrite a complaint in order for it to survive a motion to
dismiss. See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Although afforded more leeway than represented parties, pro se litigants must still
conform their filings to the requirements of the Federal Rules of Civil Procedure,
including Rule 8 and Rule 11. Rule 8 requires that “[a] pleading that states a claim for
relief must contain: (1) a short and plain statement of the grounds for the court’s
jurisdiction, . . . ; [and] (2) a short and plain statement of the claim showing that the
pleader is entitled to relief.” (emphasis added).
Rule 11 governs pleadings, motions and other papers, as well as representations to
the court and sanctions for misconduct. Notable for this case, Rule 11(b) states that an
unrepresented party, by presenting a pleading to the court, “certifies that to the best of the
person’s knowledge, information, and belief, formed after an inquiry reasonable under
the circumstances . . . (3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery.” Failure to abide by Rule 11 can result
in monetary sanctions and/or dismissal.
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the sufficiency of
the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). In
considering a motion to dismiss, the Court analyzes all the requirements listed above, as
well as whether the “complaint . . . contain[s] 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) (quotation omitted). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is

3

liable for the misconduct alleged.” Id. A court must construe factual allegations in the
light most favorable to the plaintiff. See Lambeth v. Bd. of Comm’rs of Davidson Cnty.,
407 F.3d 266, 268 (4th Cir. 2005). Nevertheless, a court is not required to accept as true
“a legal conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265,
286 (1986), or “allegations that are merely conclusory, unwarranted deductions of fact or
unreasonable inferences.” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (internal
quotation marks omitted). Put simply, a complaint must “raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
I.

Jeffries fails to assert a colorable, factual basis for her claim that her IVC
filter is affiliated with BSC
Jeffries’ Complaint fails to “raise a right to relief above the speculative level,” id.,

and shall be dismissed under Fed. R. Civ. P. 12(b)(6). Jeffries’ voluminous Complaint
and Responses contain entirely too much extraneous information detailing the history of
the IVC recall and Jeffries’ seemingly unrelated medical issues,2 and not enough
information detailing whether her IVC filter was produced and distributed by BSC. To
the extent the Court was able to tease out Jeffries’ allegations from the jumbled pages,
there appears to be no good-faith basis to allege BSC produced Jeffries’ IVC filter.
Jeffries alleges the filter was implanted and that BSC made a certain type of filter, but
does not allege with any factual support that her filter was produced by BSC. At best,
Jeffries has produced an operative report dated March 29, 1995 indicating she had an
IVC filter inserted. See ECF No. 17, at 5. Nowhere on the report does it indicate what
type of IVC filter was inserted or who manufactured it. Jeffries admits that she does not

2

Jeffries is strongly cautioned that the filings in this case are public records. As such, she has
revealed her private medical information to the public. The Court has ordered the records sealed. If the
case continues, Jeffries is instructed to file such information with a motion to seal so that the records are
not accessible to the general public.

4

have the document identifying which type of IVC filter she has and that removing the
filter may be the only way to determine who made it. ECF No. 16, at 5; ECF No. 19,
at 4.
This is insufficient.

There is no indication that Jeffries, prior to filing her

Complaint, made a “reasonable” inquiry or that her “factual contentions have evidentiary
support . . . [or] will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery.” Fed. R. Civ. P. 11(b). Rather, it appears Jeffries
simply filed her Complaint based on a hunch. Such pure speculation fails to nudge her
claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. For
this reason alone,3 Jeffries’ Complaint must be dismissed.
II.

Jeffries’ consortium claim fails as a matter of law
Jeffries’ seventh cause of action is entitled “Loss of Consortium Claim.” ECF

No. 1, at 23. In Maryland, it is well-settled law that loss of consortium is a joint claim of
a husband and wife that encompasses “the loss of society, affection, assistance and
conjugal fellowship[, meaning] . . . the loss or impairment of sexual relations.” Deems v.
W. Maryland Ry. Co., 247 Md. 95, 100, 231 A.2d 514, 517 (1967). It is a claim that must
be brought by both spouses and not merely by the injured party. See id. Jeffries has not
alleged that she has a spouse and no spouse is a party to the suit.4 Accordingly, she has
not stated a claim for consortium and this claim shall be dismissed with prejudice.

3

The Court, therefore, declines to decide whether it has personal jurisdiction over BSC. Proper
pleading of the causes of action would necessitate pleading sufficient facts to support the assertion that
BSC produced Jeffries’ IVC filter. Personal jurisdiction might then be satisfied.
4
Construed liberally, Jeffries appears to be asserting a claim for solatium, but such a claim is only
available to the child of an injured person, not the grandchild, and the injured person must have the
misfortune of being deceased. See Md. Code Ann., Cts. & Jud. Proc. § 3-904 (2016).

5

III.

Jeffries’ punitive damages claim is deficient as a matter of law
Jeffries has also failed to adequately plead that she is entitled to punitive damages.

“[F]or a plaintiff to recover punitive damages, the complaint must contain a specific
claim for punitive damages and ‘must set forth facts that, if proven true, would entitle the
plaintiff to punitive damages.’” Bowden v. Caldor, Inc., 350 Md. 4, 22, 710 A.2d 267,
276 (1998) (quoting Scott v. Jenkins, 345 Md. 21, 25, 690 A.2d 1000, 1001 (1997)). “In
a non-intentional tort action, the trier of facts may not award punitive damages unless the
plaintiff has established that the defendant’s conduct was characterized by evil motive,
intent to injure, ill will, or fraud, i.e., ‘actual malice.’” Owens-Illinois, Inc. v. Zenobia,
325 Md. 420, 460, 601 A.2d 633, 652 (1992). “[I]n order for actual malice to be found in
a products liability case, regardless of whether the cause of action for compensatory
damages is based on negligence or strict liability, the plaintiff must [allege and] prove (1)
actual knowledge of the defect on the part of the defendant, and (2) the defendant’s
conscious or deliberate disregard of the foreseeable harm resulting from the defect.” Id.
at 462, 601 A.2d at 653. Negligence only will not suffice. ACandS, Inc. v. Godwin,
340 Md. 334, 361, 667 A.2d 116, 128 (1995). Jeffries’ punitive damages claim contains
nothing but a recitation of the malice standard. There are no factual allegations that
would demonstrate actual malice if proven. Therefore, the punitive damages claims shall
be dismissed.
IV.

Jeffries has not adequately addressed whether her claim is barred by the
statute of limitations
In Maryland, products liability claims are limited by the standard three-year

statute of limitations. Md. Code Ann., Cts. & Jud. Proc. § 5-101 (2016) (setting the
general standard unless stated otherwise in another provision); see also Md. Code Ann.,
6

Cts. & Jud. Proc. § 5-115 (2016) (containing no separate statute of limitations for
products liability actions). However, “application of the discovery rule in a product
liability action requires that the statute of limitations should not begin to run until the
plaintiff knows or through the exercise of due diligence should know of injury, its
probable cause, and either manufacturer wrongdoing or product defect.” Pennwalt Corp.
v. Nasios, 314 Md. 433, 452, 550 A.2d 1155, 1165 (1988) (emphasis added). A court
may dismiss an action if it is facially clear from the Complaint that a claim is barred by
the statute of limitations. See Litz v. Maryland Dep’t of Env’t, 434 Md. 623, 641, 76
A.3d 1076, 1086 (2013).
Jeffries had her IVC filter implanted in 1995 and did not file her Complaint until
twenty years later. Jeffries implies that the statute of limitations should not begin to run
until September 2015 when she was notified that her IVC filter had migrated. ECF No.
1, at 8. She further asserts that “Defendants are estopped from relying on the statute of
limitations defense because defendants failed to timely disclose, among other things,
facts evidencing the defective and unreasonably dangerous nature of the Greenfield IVC
filter.” Id. at 15.
Jeffries’ assertions regarding limitations suffer from a fatal conflict: in the same
document in which she argues for the statute of limitations to be tolled until 2015, she
asserts that BSC publicized a recall in 2005. Id. at 3, 15. She does not provide any
reason why she should not have known about the dangers of the IVC filter in 2005. If
Jeffries chooses to file an Amended Complaint, she must allege specific facts
demonstrating that her claims are not time-barred.

7

V.

Jeffries shall be given leave to amend her Complaint
In the interest of fairness to a pro se litigant, Jeffries shall be given leave to file an

amended Complaint, absent the consortium claim, within thirty (30) days of the date of
this opinion. Jeffries is reminded that her Complaint must comply with the Federal Rules
of Civil Procedure, including, but not limited to, “short and plain statements” of
jurisdiction and facts asserted in good-faith. See Fed. R. Civ. P. 8 and 11. In the same
manner, Jeffries must also address whether her action is barred by the statute of
limitations. Jeffries should not include unnecessary recitations of the history of the IVC
recall, federal regulations, or medical problems unrelated to her IVC filter.
CONCLUSION
For the reasons discussed above, BSC’s Motion to Dismiss [ECF No. 12] will be
granted and Jeffries’ Complaint [ECF No. 1] will be dismissed with leave to file an
amended Complaint, absent the consortium claim, within thirty (30) days of the date of
this order. If Jeffries fails to file a proper Amended Complaint within thirty days, the
dismissal shall be with prejudice. Jeffries’ consortium claim will be dismissed with
prejudice. Jeffries’ Motion to Deny Defendants’ Motion to Dismiss [ECF No. 16] will be
denied. Jeffries’ Motion for Extension of Time to File Response/Answer [ECF No. 15]
will be granted. A separate Order follows.

Date: August 10, 2016

/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE

8