Knoth v. Keith et al

Filing 29

ORDER finding as moot 9 Motion to Dismiss; finding as moot 18 Motion to Dismiss; granting 23 Motion to Amend/Correct Signed by Honorable David C. Bramlette, III on 12/27/2018 (DW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
STEPHANIE S. KNOTH

PLAINTIFF

V.

CAUSE NO. 5:18-CV-49-DCB-MTP

DR. STEPHEN P. KEITH, SOUTHWEST
MISSISSIPPI REGIONAL MEDICAL CENTER,
GASTROENTEROLOGY ASSOCIATES, and
APOLLO ENDOSURGERY US, INC.

DEFENDANTS
ORDER

This cause having come before the Court on Plaintiff’s Motion
[Doc. 23] for Leave to File an Amended Complaint; Plaintiff’s
Motion [Doc. 18] to Dismiss her claims against Defendant Apollo
Endosurgery US, Inc. (“Apollo”) without prejudice, which the Court
construes as a Motion for Voluntary Dismissal pursuant to FED. R.
CIV. PRO. 41; and Defendant Apollo’s Motion [Doc. 9] to Dismiss.
For

the

following

Amend/Correct

reasons,

Complaint

Plaintiff’s

[Doc.

1]

is

Motion

[Doc.

GRANTED.

23]

to

Therefore,

Plaintiff’s Motion [Doc. 18] and Defendant’s Motion [Doc. 9] are
DENIED as moot.
Background
This is a medical malpractice and products liability dispute.
Plaintiff Stephanie S. Knoth (“Knoth”) alleges that on November

29, 2016, Knoth was admitted to Southwest Mississippi Regional
Medical Center for an outpatient procedure, the insertion of an
ORBERA Intragastric Balloon (“the Balloon”) for weight loss. Doc.
1, p.5, ¶13. Dr. Stephen Keith performed the procedure. Doc. 1,
p.5, ¶15. Knoth was discharged home after the procedure. Id. Knoth
states that on December 1, 2016, an esophagogastroduodenoscopy
(“EGD”) was performed as a planned removal of the Balloon per
Knoth’s request. Id. Knoth states, “Dr. Keith noted the [B]alloon
was obstructing the pyloric valve with suction removal of three to
four liters of fluid from the stomach.” Id. The Court presumes she
meant the Balloon was obstructing the pyloric valve, which required
suction from the stomach. Dr. Keith allegedly kept the Balloon
intact and only repositioned the Balloon. Id. Knoth contends that
she then experienced damage to the fundus of her stomach, which
eventually led to the perforation of the gastric fundus. Doc. 1,
p.6,

¶18.

Knoth

states

she

aspirated

massive

amounts

of

GI

(gastrointestinal) content reading to a life–threatening infection
and

stiffening

of

lungs

known

as

Acute

Respiratory

Distress

Syndrome (“ARDS”). Id. Knoth was treated for ARDS, involving months
of ventilator dependence, a tracheostomy tube and chest tubes.
Doc. 1, p.6, ¶19. According to Knoth, Dr. Dany Haddad performed an
abdominal assessment, noted issues, made diagnoses, and advised
Dr. Keith that Knoth wanted the Balloon removed. Doc. 1, p.6,
¶¶18-21. Eventually, the Balloon was removed. Doc. 1, p.6, ¶22.
2

Knoth

allegedly

suffered

considerable

injuries,

including

respiratory failure requiring long-term ventilator support and a
tracheostomy. Doc. 1, p.7, ¶26. Knoth contends that she also
experienced septic shock, pneumonia, peritonitis, and surgeries to
treat the abdominal infection. Doc. 1, p.7, ¶¶26–27. Defendants
Apollo and Southwest Mississippi Regional Medical Center generally
deny most of Knoth’s allegations in their Answers. Docs. 8 & 13.
The other defendants have not responded.
Analysis
Former pro se Plaintiff Knoth makes several claims against
Apollo,

including

fraudulent

marketing,

misrepresentation,

marketing a defective product. Doc. 1, p.8, ¶31. In its Motion to
Dismiss [Doc. 9], Apollo argues that Knoth’s state law claims
against Apollo and its FDA–approved Balloon are preempted by
federal law. Doc. 11, pp.3–6. After securing counsel, see Doc. 17
and Doc. 24, p.3, Plaintiff moved to Dismiss its claims against
Defendant

Apollo

Endosurgery

US,

Inc.

(“Apollo”)

without

prejudice. Doc. 18. The Court notes, however, that the proper
procedural mechanism for Knoth’s request is a Motion for Voluntary
Dismissal pursuant to FED. R. CIV. PRO. 41.
Knoth now moves to amend her Complaint pursuant to FED. R.
CIV. PRO. 15(a)(2) and 15(c). FED. R. CIV. PRO. 15(a)(2) provides
that “a party may amend its pleading only with the opposing party’s
3

written consent or the court’s leave. The court should freely give
leave when justice so requires.” In the absence of undue delay,
bad faith, undue prejudice on the opposing parties, etc., the leave
sought should “be freely given.” Forman v. Davis, 371 U.S. 178,
182 (1962)(declaring that “leave to amend ‘shall be freely given
when justice so requires’” is a “mandate … to be heeded.”)(internal
quotations omitted). Knoth argues that she would be prejudiced if
not afforded the right to have counsel amend the complaint and
move forward based on the merits of the claims. Doc. 24, p.3. Knoth
contends that Defendants will not suffer undue prejudice from the
filing of her Amended Complaint because no discovery has occurred
among the parties, and the Court has not entered a Case Management
Order. Id. Knoth also contends that no reason listed in Forman
exists as cause to deny her request.
In this action, Knoth’s Motion [Doc. 23] is unopposed. See
Docs. 26, 28. The Court finds that allowing former pro se Plaintiff
to amend her Complaint would assist the Court and opposing parties
by

narrowing

the

scope

of

the

issues

and

appropriate

Court

remedies. Doc. 24, p.2. Therefore, it is appropriate to grant
Knoth’s request. Granting this Motion [Doc. 23] renders moot
Knoth’s Motion to Dismiss [Doc. 18] and Apollo’s Motion to Dismiss
[Doc. 9].
Accordingly,
4

IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff’s Motion
[Doc. 23] for Leave to File an Amended Complaint is GRANTED;
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff’s Motion
[Doc.

18]

to

Dismiss

its

claims

against

Defendant

Apollo

Endosurgery US, Inc. (“Apollo”) without prejudice, which the Court
construes as a Motion for Voluntary Dismissal pursuant to FED. R.
CIV. PRO. 41 is DENIED as moot; and
IT IS FURTHER ORDERED AND ADJUDGED that Defendant Apollo’s
Motion [Doc. 9] to Dismiss is DENIED as moot.
SO ORDERED, this the 27th day of December, 2018.

_/s/ David Bramlette________
UNITED STATES DISTRICT JUDGE

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