BEYERLE v. WRIGHT MEDICAL TECHNOLOGY, INC. et al

Filing 36

OPINION. Signed by Judge Renee Marie Bumb on 12/23/2014. (dmr)

NOT FOR PUBLICATION

[Docket No. 19]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

RAYMOND BEYERLE, JR.,
Plaintiff,
Civil No. 14-2128 RMB/KMW
v.
OPINION
WRIGHT MEDICAL TECHNOLOGY INC.,
Defendant.
APPEARANCES:
Michael Katz
Paul & Katz P.C.,
1103 Laurel Oak Road, Suite 105C
Voorhees, NJ 08043
Attorneys for Plaintiff
Stephen Finley
Gibbons P.C.
1700 Two Logan Square
Philadelphia, PA 19103
Attorneys for Defendants
BUMB, United States District Judge:
This matter comes before the Court upon a Motion by
Defendant, Wright Medical Technology Inc., to dismiss Counts
Three (Breach of Express Warranty), Four (New Jersey Consumer
Fraud Act) and Five (Magnuson-Moss warranty) of the Complaint in
the above-captioned matter.

Pursuant to the Plaintiff’s

opposition papers, Plaintiff has agreed to dismiss Counts Three
and Five. [Docket No. 23 at 3].

Therefore, those Counts are not

analyzed below as they shall be dismissed from the Complaint
pursuant to the agreement of the parties.

With respect to the

remaining Count at issue, Count Four, this Court finds that
Defendant’s motion shall be denied.
Background 1

I.

In his Complaint, Plaintiff Raymond Beyerle avers that was
injured by the ProFemur hip stem system (“ProFemur”), a
orthopedic hip implant, that was designed, manufactured, marketed
by Defendant.

Compl. at ¶¶ 6-7.

Plaintiff had the ProFemur

Plasma Z implanted at Cooper University Hospital during a Total
Hip Arthroplasty (THA) and a revision surgery.
45, 71.

Id. at ¶¶ 14-18,

Plaintiff contends that, prior to his surgeries,

Defendant was “aware of defects and unreasonably high rates of
problems with the ProFemur Plasma Z . . . .”

Id. at ¶ 71.

Following his surgery, Plaintiff experienced a “catastrophic
failure of his . . . implant [when the] ProFemur System

1

This Court will accept the Plaintiff’s well-pled
allegations as true for purposes of this motion to dismiss.
Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012).
2

See

inexplicably fractured.”

Id. at ¶ 90.

experienced intense and agonizing pain.”

As a result, “Plaintiff
Id. at 89.

Count Four of Plaintiff’s Complaint alleges a breach of the
New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-1 (“NJCFA”).
Pursuant to this Count, Plaintiff avers that the Defendant
advertised that the ProFemur system was safe and effective and
had, inter alia, a clinical history of safety, structural
reliability, and no reported failures.

Id. at ¶ 119.

Plaintiff

further avers that “Defendant[] knew these advertised qualities
were unproven and untrue . . .

[and that] ProFemur components

were not safe, effective or structurally reliable as evidenced by
the catastrophic failure of Plaintiff’s components.”

Id. at ¶

122.
Plaintiff further contends that Defendant “affirmatively
misrepresented the safety and efficacy of the ProFemur System
and, as a result, the ProFemur components were worthless for
their intended purpose.

Finally, Plaintiff states that he

“expended a substantial sum of money he otherwise would not have
expended to purchase a replacement for the product and undergo
surgery to implant the replacement product, in addition to the
loss of income and other economic harm Plaintiff suffered due to
Defendant[’s] violation of the [CFA].”
3

Id. at ¶ 128.

II.

Standard

To withstand a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), “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)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Id. at 663.

“[A]n unadorned, the-

defendant-unlawfully harmed-me accusation” does not suffice to
survive a motion to dismiss.

Id., 566 U.S. at 678. “[A]

plaintiff's obligation to provide the 'grounds' of his
'entitle[ment] to relief' requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S. at 555 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
In reviewing a plaintiff’s allegations, the district court
“must accept as true all well-pled factual allegations as well as
all reasonable inferences that can be drawn from them, and
construe those allegations in the light most favorable to the
plaintiff.” Bistrian v. Levi, 696 F.3d 352 n.1 (3d Cir. 2012).
4

Only the allegations in the complaint, and “matters of public
record, orders, exhibits attached to the complaint and items
appearing in the record of the case” are taken into
consideration. Oshiver v. Levin, Fishbein, Sedran & Berman, 38
F.3d 1380, 1384 n.2 (3d Cir. 1994)(citing Chester County
Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812
(3d Cir. 1990)).

III. Analysis
The Defendant argues that Plaintiff’s NJCFA claim is
preempted by the New Jersey Products Liability Act (“PLA”).

More

specifically, Defendant contends that the New Jersey Supreme
Court made clear in Sinclair v. Merck & Co., Inc., 195 N.J. 51
(2008), that the PLA is the “sole source of remedy in a products
liability action.”

See id. at 66 (“The heart of plaintiffs’ case

is the potential for harm caused by Merck’s drug.

It is

obviously a product liability claim. Plaintiffs’ [Consumer Fraud
Act] claim does not fall within an exception to the PLA, but
rather clearly falls within its scope. Consequently, plaintiffs
may not maintain a CFA claim.”).

Based on the holding in

Sinclair, Defendant contends that New Jersey courts have
routinely applied the PLA broadly to the exclusion of other
5

claims, including the CFA.

See e.g., Arlandson v. Hartz Mountain

Corp., 792 F. Supp. 2d 691, 703 (D.N.J. 2011)(dismissing
plaintiff’s consumer fraud claims where the court found the core
issue was the product’s harmfulness, which could only be asserted
pursuant to the PLA); McDonough v. Bayer Healthcare, LLC, 2011
U.S. Dist. LEXIS 56511, *8 (D.N.J. May 26, 2011)(dismissing
claims for consumer fraud because the NJPLA “effectively creates
an exclusive statutory cause of action for claims falling within
its purview.”).
In response, Plaintiff contends that his CFA claim fits
within an exception to the PLA, which excludes claims for damage
to the product itself.

In other words, Plaintiff argues that

while the PLA is generally the exclusive remedy for claims based
on harm caused by a product, there is an exception for damage
caused to the product itself – i.e., economic damages for
destruction of the product.

Pl.’s Opp. Br. at 10.

In the

Complaint, Plaintiff states he “expended a substantial sum of
money he otherwise would not have expended to purchase a
replacement for the product and undergo surgery to implant the
replacement product. . . [and] [s]uch expenditure is an
ascertainable loss of money . . . .”

6

Compl. at ¶¶ 128-129.

Other Courts have deemed similar pleading sufficient at the
motion to dismiss stage of the proceedings.

For example, in

Shannon v. Howmedica Ostenonics Corp., No. 09-4171, 2010 U.S.
Dist. LEXIS 36716 (D.N.J. Apr. 14, 2010), the plaintiff’s
complaint contained nearly identical allegations regarding a
defective tibial insert that was inserted into the plaintiff’s
knee: e.g., “[p]laintiff expended a substantial sum of money he
otherwise would not have expended to purchase a replacement for
the product . . . which expenditure is an ascertainable loss of
moneys. . . .”

Id. at *3.

When faced with the same preemption argument presented by
the Defendant in the instant matter, the Shannon court held that
“where there are damages being sought that are specifically
excluded from overage by the PLA, a separate claim for those
damages may be sought,” even though it is generally true that
“where the essential nature of a claim is a products liability
claim, all other claims are subsumed by the PLA claim[]”

Id. at

*7 (citing Estate of Knoster, 2008 U.S. Dist. Lexis 103342, at
*25, n.4.) 2

2

The Knoster court noted that the Sinclair decision did
not “alter the Third Circuit’s previous unpublished ruling in
that case that the plaintiffs could separately bring a claim
under the CFA for economic damages for destruction of the product
7

Ultimately, in reviewing the plaintiff’s nearly identical
pleading to that presented in the instant matter, the Shannon
court declined to dismiss the plaintiff’s CFA claim, finding that
“Mr. Shannon’s CFA damage claim appears to be focused on harm to
the product itself—damages not encompassed within the PLA’s
definition of harm.”

Id.

Notably, the Court went on to state:

“[i]f, after discovery, it is clear that all of the harm for
which Mr. Shannon seeks redress is covered by his PLA claim, then
[defendant] may move for summary judgment on the CFA claim.”
Similar to the Court’s decision in Shannon, and based on the
facts as plead in the Complaint, this Court will not dismiss
Plaintiff’s CFA claim as preempted at this time.

This Court

finds that what Plaintiff has plead in Count Four is a claim for
harm to the product itself – i.e., the cost of having to buy a
replacement because the product broke.

Again, under the PLA,

“‘harm’ means (a) physical damage to the property, other than to
the product itself . . . .” N.J.S.A. § 2A:58C-1(b)(2)(emphasis
added).

At this stage in the litigation, it appears that

Plaintiff’s CFA claim seeks economic damages resulting from harm
to the product itself, and, as such, is not subsumed by the PLA.

itself.”
8

See Arlandson v. Hartz Mountain Corp., 792 F. Supp. 2d 691
(D.N.J. 2011)(noting that other courts have found that the PLA
does not subsume claims for economic damages where the harm is to
the product itself); Knoster v. Ford Motor Co., No. 01-3168, 2008
U.S. Dist. LEXIS 103342, at *26 n.4 (D.N.J. Dec. 22,
2008)(“economic damages for destruction of the product are not
recoverable under the PLA.”).
While the Court will not dismiss Plaintiff’s CFA claim as
subsumed by the PLA at this time, it notes, like the court in
Shannon, that if discovery reveals that the “heart” of
Plaintiff’s case is the harm caused by the product, rather than
the harm caused to the product itself, Defendants may move for
summary judgment on the CFA claim. 3

If, after discovery, the

undisputed facts demonstrate the nature of Plaintiff’s claim is
truly one for product liability, a motion for summary judgment on

3

The Court notes that this case demonstrates the difficulty
of managing the distinction between harm caused to a product and
harm caused by a product in the implanted medical device realm,
as the harm to the product necessarily causes the harm by the
product. This Court expects, consistent with the obligations
under Federal Rule of Civil Procedure 11, that Plaintiff will
only continue to pursue claims having a good faith basis and
grounded in evidentiary support. If the course of discovery
reveals that the heart of Plaintiff’s claim is the harm caused by
the product, Rule 11 would seem to mandate the dismissal of the
CFA claim.
9

the CFA claim may be granted.

See e.g., Arlandson, 792 F. Supp.

2d at 703 (“regardless of how a claim is pleaded, where the core
issue is the harmfulness of the product’s chemicals, the claim
must be pleaded as an NJPLA claim.”); Kury v. Abbott Labs., No.
11-803, 2012 U.S. Dist. LEXIS 4862, at *13 (D.N.J. Jan. 17
2012)(“even the claim of lost value in this case is not
sufficiently distinguishable from the broad harm encompassed by
the NJPLA.”); Fellner v. Tri-Union Seafoods, No. 06-688, 2010
U.S. Dist. LEXIS 36195, at *15 (D.N.J. Apr. 13, 2010)(“The fact
that Plaintiff here seeks economic damages to reimburse her for
the cost of the product (in addition to personal injury damages)
does not change the fact that this is, in essence, a product
liabilities claim.”); Vercellono v. Gerber Prods. Co., Civ. No.
09-2350, 2010 U.S. Dist. LEXIS 9477, at *20 (D.N.J. Feb. 3,
2010)(“[l]imiting a claim to economic injury and the remedy
sought to economic loss cannot be used to obviate the PLA.)

IV.

Conclusion

For the reasons discussed above, Defendant’s motion to
dismiss will be granted as to Counts Three and Five and denied as

10

to Count Four.

An appropriate Order will issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

Dated:

December 23, 2014

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