Taylor v. Smith & Nephew, Inc.

Filing 82

ORDER granting in part and moot in part 54 Motion to Dismiss; granting in part and denying in part 57 Motion for Leave to File; granting in part and denying in part 59 Motion to Amend/Correct as set out in the Order. Signed by Chief District Judge Daniel P. Jordan III on December 5, 2019. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JOHN RANDOLPH TAYLOR

PLAINTIFF

V.

CIVIL ACTION NO. 3:18-CV-234-DPJ-JCG

SMITH & NEPHEW, INC.

DEFENDANT
ORDER

In this product-liability action, Defendant Smith & Nephew, Inc. (“S&N”) moved to
dismiss the Complaint under Federal Rules of Civil Procedure 8 and 12(b)(6). Plaintiff John
Randolph Taylor subsequently sought leave to file a Fourth Amended Complaint. For the
following reasons, Defendant’s motion [54] is granted in part and moot in part, Plaintiff’s
motions [57, 59] are granted in part and denied in part, and Plaintiff is directed to file an
amended complaint consistent with this Order.
I.

Background
This case arises from a hip-replacement surgery gone awry. Taylor received a hip

implant, the components of which were “designed, manufactured, distributed, sold and/or placed
into the stream of commerce” by S&N. Pl.’s Third Am. Compl. [23] ¶ 8. The implant only
caused him more pain, so Taylor underwent a second surgery. Id. ¶ 9. As a result of these
operations, Taylor filed suit against S&N alleging several product-liability claims. See id. ¶¶ 11–
18.
Taylor now seeks to amend his complaint to clarify those claims. S&N concedes that the
Proposed Fourth Amended Complaint “cure[s] some deficiencies in [Taylor’s] pleadings, and the
issues have been narrowed,” but challenges the amendment as to Taylor’s manufacturing-defect
and implied-warranty claims. Def.’s Resp. [65] at 4; see also Def.’s Reply [70] at 2–3.

II.

Standard
Federal Rule of Civil Procedure 15(a)(1)(A) allows a party to amend a pleading as a

matter of course within 21 days of serving the pleading. A party may amend a pleading outside
this three-week window “only with the opposing party’s written consent or the court’s leave.”
Fed. R. Civ. P. 15(a)(2). The rule instructs that “[t]he court should freely give leave when justice
so requires.” Id. Indeed, “Rule 15(a) evinces a bias in favor of granting leave to amend.”
Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016) (quoting Herrmann Holdings,
Ltd v. Lucent Techs., Inc., 302 F.3d 552, 566 (5th Cir. 2002)) (internal quotation marks omitted).
“It is settled that the grant of leave to amend the pleadings pursuant to Rule 15(a) is
within the discretion of the trial court.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S.
321, 330 (1971). But “it is by no means automatic.” Wimm v. Jack Eckerd Corp., 3 F.3d 137,
139 (5th Cir. 1993) (quoting Addington v. Farmer’s Elevator Mut. Ins. Co., 650 F.2d 663, 666
(5th Cir. 1981)) (internal quotation marks omitted). Accordingly, “the district court may
consider such factors as undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party, and futility of amendment.” Id.
A futility analysis is “identical, in practice, to the standard used for reviewing a dismissal
under Rule 12(b)(6).” Thomas, 832 F.3d at 590 (quoting City of Clinton v. Pilgrim’s Pride
Corp., 632 F.3d 148, 152 (5th Cir. 2010)). That is, the Fifth Circuit has interpreted “futility” to
mean that “the amended complaint would fail to state a claim upon which relief could be
granted.” Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000). Under the
well-known Rule 12(b)(6) standard, “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,

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678 (2009) (quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is
facially plausible if the complaint ‘allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
III.

Analysis
S&N’s motion to dismiss originally challenged Taylor’s Third Amended Complaint.

Although Taylor seeks to amend the Third Amended Complaint, the Proposed Fourth Amended
Complaint contains the same previously-challenged claims, just with more detail, and S&N’s
arguments rest on the same grounds. Accordingly, they will be addressed collectively.
A.

Manufacturing-Defect Claim

In his Proposed Fourth Amended Complaint, Taylor alleges that the components in his
hip implant “were defective in design and/or manufacture.” Pl.’s Proposed Fourth Am. Compl.
[59-1] ¶¶ 12, 15. S&N argues that the proposed complaint “does not identify which components
deviated from specification” or “describe the alleged deviation[.]” Def.’s Resp. [65] at 4. Taylor
replies that the complaint is sufficient, and he should be allowed to proceed to discovery to be
more specific. Pl.’s Reply [71] at 3.
In Mississippi, the Mississippi Products Liability Act (“MPLA”) “provides the exclusive
remedy for products-liability claims[.]” Elliot v. El Paso Corp., 181 So. 3d 263, 268 (Miss.
2015) (footnote and internal quotation marks omitted). The MPLA applies “in any action for
damages caused by a product, including, but not limited to, any action based on a theory of strict
liability in tort, negligence or breach of implied warranty, except for commercial damage to the
product itself[.]” Miss. Code Ann. § 11-1-63. For manufacturing-defect claims, the statute
provides that the plaintiff must show that, “at the time the product left the control of the
manufacturer,”

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(i) . . . The product was defective because it deviated in a material way from the
manufacturer’s or designer’s specifications or from otherwise identical units
manufactured to the same manufacturing specifications[;] . . .
(ii) The defective condition rendered the product unreasonably dangerous to the
user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product
proximately caused the damages for which recovery is sought.
Id. § 11-1-63(a). In other words, “manufacturing defect claims involve allegations not that the
entire product line in question was defectively designed, but rather that the specific product
purchased by the consumer was manufactured in a way which deviated from the design
specifications.” Hickory Springs Mfg. Co. v. Star Pipe Prods., Ltd., 991 F. Supp. 2d 778, 780
(N.D. Miss. 2014). Accordingly, “a plaintiff must ‘allege how the subject product(s) deviated
from the manufacturers’ specifications or other units.’” Little v. Smith & Nephew, Inc., No.
1:15-CV-00028-GHD-DAS, 2015 WL 3651769, at *8 (N.D. Miss. June 11, 2015) (quoting
Adams v. Energizer Holdings, Inc., No. 3:12-CV-797-TSL-JMR, 2013 WL 1791373, at *3 (S.D.
Miss. Apr. 19, 2013)).
Taylor’s manufacturing-defect claim does not survive a Rule 12(b)(6) analysis.
Crucially, there is no allegation of a deviation. The Proposed Fourth Amended Complaint
merely alleges that the “components were defective in . . . manufacture” without any further
explanation of what the defect was. See Pl.’s Proposed Fourth Am. Compl. [59-1] ¶¶ 12, 15.
Taylor likewise fails to allege that the defect was due to a material deviation “from the
manufacturer’s or designer’s specifications or from otherwise identical units manufactured to the
same manufacturing specifications[.]” Miss. Code Ann. § 11-1-63(a)(i)(1). That is, the
Proposed Fourth Amended Complaint does not even allege the elements of a manufacturingdefect claim, much less facts to plausibly support those elements. The Third Amended
Complaint suffers the same flaws. Thus, S&N’s motion to dismiss is granted as to Taylor’s
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manufacturing-defect claim contained in the Third Amended Complaint. Taylor’s motions for
leave to amend are denied as to this claim.
B.

Implied-Warranty Claims

As to Taylor’s implied-warranty claims, S&N contends that “[i]mplied warranty is not a
recognized cause of action under the MPLA.” Def.’s Resp. [65] at 5. Taylor responds that the
MPLA expressly authorizes such claims.
As noted, the MPLA is “the exclusive remedy for products-liability claims,” Elliot, 181
So. 3d at 268, and it applies “in any action for damages caused by a product, including . . . any
action based on a theory of . . . breach of implied warranty,” Miss. Code Ann. § 11-1-63. Based
on the statutory language, “in a case involving a product defect, . . . a claim for breach of an
implied warranty would seem to be subsumed by the MPLA.” Elliot, 181 So. 3d at 269 n.24.
But “[t]he fact that the MPLA provides the exclusive remedy for suits against a
manufacturer, does not mean that common law . . . breach of warranty claims are disallowed.
Instead, they must be evaluated under the framework of the MPLA.” Knoth v. Apollo
Endosurgery US, Inc., No. 5:18-CV-49 DCB-MTP, 2019 WL 5865563, at *5 (S.D. Miss. Nov. 8,
2019) (internal citations omitted). Whether a breach-of-implied-warranty claim is cognizable is
therefore a question of how the complaint is pleaded:
Practically, where a common law claim is subsumed by the MPLA and is brought
alongside products liability claims based on the same theory of recovery, the
proper course is to dismiss the common law claim to the extent it is duplicative of
the parallel products liability counts. To the extent a subsumed common law
count is asserted as an independent tort claim outside the scope of the MPLA, the
count must be dismissed for failure to state a claim.
Young v. Bristol-Myers Squibb Co., No. 4:16-cv-00108-DMB-JMV, 2017 WL 706320, at *4
(N.D. Miss. Feb. 22, 2017) (internal quotation marks and citations omitted). In other words, if
implied-warranty claims are “duplicative of already-pleaded products liability claims, they
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should be dismissed.” Finch v. Pepperidge Farms, Inc., No. 1:18-cv-152-GHD-DAS, 2019 WL
302506, at *1 (N.D. Miss. Jan. 23, 2019) (citing Young, 2017 WL 706320, at *4).
In Counts I and II of the Proposed Fourth Amended Complaint, Taylor alleges designdefect and failure-to-warn claims. Taylor’s implied-warranty claims are based on the same
theories. For example, Taylor alleges that “[d]ue to the defective and unreasonably dangerous
aforementioned hip components, it was [sic] neither of merchantable quality nor fit for the
particular purposes for which it was [sic] sold[.]” Pl.’s Proposed Fourth Am. Compl. [59-1]
¶ 26. The “defective and unreasonably dangerous” quality of the products mirrors Taylor’s
theory of relief for his design-defect claim. See, e.g., id. ¶ 15 (“Said hip components failed
because they were defective in design and/or manufacture. These design and/or manufacture
defects rendered the product unreasonably dangerous.”). Additionally, Taylor alleges that S&N
“never warned patients or physicians that its material selection . . . significantly increased the
risk” of injury, but it “expressly and impliedly warranted the opposite[.]” Id. ¶ 29. These
“aforementioned actions,” Taylor says, “demonstrate a breach of the applicable implied and
express warranties, including warranties of merchantability and fitness for a particular purpose.”
Id. ¶ 30. This theory of liability parrots Taylor’s failure-to-warn claim.
Because Taylor’s implied-warranty claims are “based on the same theory of recovery” as
his products-liability claims, “the proper course is to dismiss the [implied-warranty] claim[s] to
the extent” they are “duplicative of the parallel products liability counts.” Young, 2017 WL
706320, at *4. S&N’s motion to dismiss is granted as to Taylor’s implied-warranty claims
contained in the Third Amended Complaint. Taylor’s motions for leave to amend are denied as
to these claims.

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C.

Remaining Claims

In the Proposed Fourth Amended Complaint, Taylor also raises MPLA claims under
design-defect, failure-to-warn, and express-warranty theories. S&N concedes that the Proposed
Fourth Amended Complaint cures the deficiencies as to these claims. Def.’s Reply [70] at 2–3.
Therefore, as to these claims, S&N’s motion is moot, and Taylor’s motions are granted.
IV.

Conclusion
The Court has considered all arguments. Those not addressed would not change the

outcome. For the reasons stated, Defendant’s motion to dismiss [54] is granted in part and moot
in part. Plaintiff’s motions for leave to file a Fourth Amended Compliant [57, 59] are granted in
part and denied in part. Taylor is directed to file a Fourth Amended Complaint that omits the
manufacturing-defect and breach-of-implied-warranty claims and allegations contained in the
Proposed Fourth Amended Compliant. The Fourth Amended Complaint may include the same
design-defect, failure-to-warn, and express-warranty claims and allegations that are contained in
the Proposed Fourth Amended Complaint [59-1].
SO ORDERED AND ADJUDGED this the 5th day of December, 2019.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE

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