BECKER et al v. SMITH & NEPHEW, INC. et al

Filing 10

OPINION. Signed by Judge William H. Walls on 1/20/2015. (anr)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DEBORAH A. BECKER and RAYMOND
BECKER,
Plaintiffs,

OPINION

V.

SMITH & NEPHEW, INC., ABC CORP. IX, JOHN DOE I-X, AND JANE DOE I-X
(said names being fictitious and unknown),

Civ. No. 14-5452 (WHW)(CLW)

Defendants.

Walls. Senior District Judgç
Plaintiffs Deborah Becker and Raymond Becker bring this products liability case,
involving a hip implant, against Defendant Smith & Nephew, Inc. Defendant removed the case
from New Jersey Superior Court and now moves to dismiss. Defendant argues that the
complaint’s allegations are too vague to meet federal pleading standards, and that New Jersey
law bars several causes of action. Decided without oral argument under Fed. R. Civ. P. 78,
Defendant’s motion is granted. Plaintiffs are granted leave to file an amended complaint within
90 days from the date of this Opinion.

BACKGROUND
Plaintiffs filed a complaint in New Jersey Superior Court on May 20, 2014. ECF No. 1-1.
The factual allegations of the complaint are that “Defendants, Smith & Nephew, Inc. and/or
ABC Corp. I-X.

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owned, designed, manufactured, assembled, packaged, repaired, modified,

marketed, sold and/or distributed or otherwise placed in the stream of commerce a certain

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product more particularly known as a hip implant.” Compi.

¶ I. “On or about June 1, 2012, the

Smith & Nephew, Inc. hip implant was voluntarily recalled.” Id.

¶ 3. “Plaintiff, Deborah A.

Becker, only received notification of the voluntary recall on or about April 2013.” Id.

¶ 4. “On or

about August 16, 2007, plaintiff, Deborah A. Becker, underwent hip surgery at which time a
Nephew & Smith, Inc. [sic 3 hip implant was implanted.” Id.

¶ 5. “On or about September 6,

2013, plaintiff, Deborah A. Becker, was caused to undergo surgery to remove and replace the
defective Smith & Nephew, Inc. hip implant as blood work results revealed high levels of cobalt
toxicity in her system..

.“

Id, ¶6. The hip implant caused Deborah Becker to suffer injuries. Id.

¶7.
The complaint lists six counts. Though none of the headings is expressly labeled with a
cause of action, the Court interprets the complaint as sounding in negligence (First Count), loss
of consortium (Second Count), strict liability under the New Jersey Products Liability Act (Third
Count), breach of express and/or implied warranties (Fourth Count), failure to warn (Fifth
Count), and punitive damages (Sixth Count).
Defendant removed the action to this Court on August 29, 2014, ECF No. 1, and now
moves to dismiss. ECF No. 4. Defendant

argues that the complaint does not allege facts

sufficient to support the products liability and breach of express warranty claims; that the New
Jersey Products Liability Act bars the claims for negligence, breach of implied warranty, and
common law failure to warn;

and that the claims for loss of consortium and punitive damages are

derivative and must be dismissed along with the others.
Plaintiffs did not timely respond to the motion. On December 3, 2014, after their
response to the motion was due, Plaintiffs mailed the Court a short letter asking the Court to
deny the motion. Citing no case or other authority, the letter attached what it alleged were

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medical records of Deborah Becker and an earlier letter from Plaintiffs’ counsel to Defendant’s
counsel describing those records. Plaintiffs later filed the letter and attachments on ECF. ECF
No. 9.

STANDARD OF’ REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “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.” Ashcrofl v. Iqbal, 556 US. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible
on its face “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. “A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.
Nor does a complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (internal quotations and alterations omitted). “{W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘shown’—that the pleader is entitled to relief.” Id. at 679.
DISCUSSION
The New Jersey Products Liability Act Does Not Permit Plaintiffs’ Causes of Action for
Negligence and Breach of Implied Warranty
The New Jersey Product Liability Act, N.J.S.A. 2A:58C-l to -11 (“PLA”) is the
exclusive remedy for personal injury claims arising out of product use. See, e.g., Koruba v.
American Honda Motor Co., Inc., 935 A.2d 787, 795 (N.J. App. Div. 2007). The PLA “governs
any claim or action for harm caused by a product, irrespective of the theory underlying the claim,
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except actions for breach of an express warranty.” Id. (citing N.J.S.A. 2A:58C-l(b)(3) and
cases). The PLA “no longer recognizes negligence or breach of warranty (with the exception of
an express warranty) as a viable separate claim for harm, including personal injury, caused by a
defective product or an inadequate warning.” Id,; see also Fidelity and Guar. Ins. Underwriters,
Inc. v. Omega Flex, Inc., 936 F.Supp.2d 441,447 (D.N.J. 2013). Plaintiffs’ causes of action for
negligence and breach of implied warranty must be dismissed.

The Complaint Does Not State Sufficient Facts to Support a Claim under the PLA
The PLA adopts a strict liability standard that focuses on “the actual condition of the
product” rather than on the reasonableness of the manufacturer’s conduct. Caffman v. Keene
Corp., 628 A.2d 710 (N.J. 1993). In order to state a claim for strict liability under the PLA, a
plaintiff must demonstrate that “the product was not reasonably fit, suitable or safe for its
intended purpose because it either contained a manufacturing defect, failed to contain adequate
warnings or instructions, or was designed in a defective manner.” Koruba, 935 A.2d at 795,
citing N.J.S.A. 2A:58C—2; see also Cornett v. Johnson & Johnson, 998 A.2d 543, 561-62 (N.J.
App. Div. 2010) aff’d as modified, 48 A.3d 1041 (N.J. 2012). A product liability claim requires
proof that (1) the product was defective, (2) the defect existed when the product left the
manufacturer’s control, (3) the defect proximately caused injuries to the plaintiff, and (4) the
plaintiff was a reasonably foreseeable or intended user. Sinclair v. Merck & Co., 948 A.2d 587,
595 (N.J. 2008) (citing Myrlak v. Port Auth. ofN.Y. & N.J., 723 A.2d 45 (N.J. 1999)). “The mere
occurrence of an accident and the mere fact that someone was injured are not sufficient to
demonstrate the existence of a defect.” Myrlak, 723 A.2d at 52 (citation omitted).
The barebones factual allegations of the present complaint are insufficient to support any
theory under the PLA.
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Manufacturing Defect
A manufacturing defect is a deviation “from the design specifications, formulae, or
performance standards of the manufacturer or from otherwise identical units manufactured to the
same manufacturing specifications or formulae.” N.J.S,A. 2A:58C-2a; see also Myrlak, 723 A.2d
at 51.
Plaintiffs do not allege facts to indicate that this particular implant deviated from the
manufacturer’s specifications or otherwise identical units. The complaint does not allege that a
defect existed when the product left the manufacturer’s control, specify how the defect
proximately caused injuries to Deborah Becker, or identify her as a reasonably foreseeable end
user of this particular device. The specific name of the implant does not appear in the complaint,
nor does the medical condition which it was intended to treat. Though alleging “high levels of
cobalt toxicity in [Deborah Becker’s] system,” the complaint does not allege that the product was
the proximate cause of this condition, or that the high levels caused a specific injury. Compi.

¶ 6.

Apart from labeling the product a “Smith & Nephew hip implant,” Plaintiffs do not expressly
identify Defendant’s relationship to the product or role in the chain of commerce, vaguely stating
that either Smith & Nephew or a fictitious defendant did one of a number of activities, including
and potentially limited to “own[ingj” or “packag[ing]” the product. Id.

¶f 1-2.

Design Defect
A design defect is something that renders a product not reasonably fit, suitable or safe for
its intended purpose. NJ.S.A. 2A:58C-2; see Paredes v. Ford Motor Co., 2008 WL 5156473, at
*4 (N.J. App. Div. 2008). The PLA further defines a design defect as a danger inherent in a

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product that has been manufactured as intended, when that danger, as a public policy matter, is
greater than can be justified by the product’s utility. Id, To evaluate whether the design was
defective, New Jersey courts perform a risk-utility analysis that considers seven factors:
1. The usefulness and desirability of the product—its utility to the user and to the
public as a whole.
2, The safety aspects of the product—the likelihood that it will cause injury, and
the probable seriousness of the injury.
3. The availability of a substitute product that would meet the need and not be as
unsafe.
4. The manufacturer’s ability to eliminate the unsafe character of the product
without impairing its usefulness or making it too expensive to maintain its utility.
5. The user’s ability to avoid danger by the exercise of care in the use of the
product.
6. The user’s anticipated awareness of the dangers inherent in the product and
their avoidability, because of general public knowledge of the obvious condition
of the product or of the existence of suitable warnings or instructions.
7. The feasibility, on the part of the manufacturer, of spreading the loss by setting
the price of the product or carrying liability insurance.
See Sampson v. Glock, Inc., 2014 WL 1225581, at *2..3 (D.N.J. 2014) (citing Johansen v. Makita
US.A., Inc., 607 A.2d 637, 642-43 (N.J. 1992).
The complaint contains no factual allegations that would satisfy these elements. It neither
addresses the seven factors above nor specifies a defect in the product’s design. As with a
manufacturing defect theory, a design defect theory cannot be maintained without allegations
that the defect existed when the product left the manufacturer’s control, the particular defect was
the proximate cause of injuries to Deborah Becker, and Deborah Becker was a reasonably
foreseeable or intended user.

Failure to Warn
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The Court interprets Plaintiffs’ Fifth Count for failure to warn as arising under the PLA, rather
than common law. Absent a “contractual obligation to warn” that is “materially more rigorous
than the duty imposed by statute or when a person other than the manufacturer or seller of the
product assumes a duty to warn,” the PLA subsumes common law claims for failure to warn. See
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“A plaintiff asserting a cause of action based on failure to warn must establish all the
same elements required for an action based on a defective product.” London v. Lederle
Labs., 675 A.2d 1133 (App. Div. 1996), affd as inodfled by Batson v. Lederle Labs., 702 A.2d
471 (N.J. 1997). In a failure to warn claim, “the defect is the absence of a warning to
unsuspecting users that the product can potentially cause injury.” Toms v. J.C, Penney Co., 304
F. App’x 121, 126 (3d Cir. 2008) (citing Coffman v. Keene Corp., 628 A.2d 710, 716 (N.J.
1993)). The manufacturer has a duty to warn of “dangers” that it knew, or that it “should have
known on the basis of reasonably obtainable or available knowledge.” Feldman v. Lederle Labs.,
479 A.2d 374 (N.J. 1984). It satisfies that duty by giving “an adequate warning or instruction.”
N.J.S.A. 2A:58C-4; see Cornett, 998 A.2d 543 at 563. The adequacy of the warning is
determined in part by “taking into account the characteristics of, and the ordinary knowledge
common to, the persons by whom the product is intended to be used.” N.J.S.A.

2A:58C—4;

PortAuth. ofN.Y. and NJ v. Arcadian Corp., 189 F.3d 305, 319 (3d Cir. 1999).
“{B]efore reaching the question of whether the product contained an adequate warning,
plaintiff must first establish that there was a latent danger of which the manufacturer had a duty
to warn.” Toms, 304 F. App’x at 127 (citing Mathews v. University Loft Co., 903 A.2d 1120,
1125 (N.J. 2006)). A manufacturer must have “sufficient knowledge to trigger the duty to
provide a warning of the harmful effects of its product.” Toms, 304 F. App’x at 127 (citing
James v. Bessemer Processing Co., Inc., 714 A.2d 898, 908 (N.J. 1998)). There is no duty to
warn if the danger is obvious. Mathews, 903 A.2d at 1128-29.
The complaint does not state specific facts regarding the alleged inadequate warning.

Repola v. Morbark Industries, Inc., 934 F.2d 483, 489-94 (3d Cir. 1991) (interpreting N.J.S.A.
2A:58C—1(b)(2)).
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There is no identification of the latent danger, assertion that the danger is not obvious, or
allegation that Defendant knew or should have known about it at a particular time. The complaint
is silent as to whether Defendant gave a warning that did not reveal a particular danger, gave a
warning that was untimely, or gave no warning at all. Plaintiffs do not assert that the inadequacy
of the warning was the proximate cause of Deborah Becker’s injuries. The complaint does not
identify Deborah Becker as an intended user of the product, or state how the warning was
inadequate in light of the ordinary knowledge common to intended users.
As Plaintiffs do not plead facts sufficient to support a reasonable inference that
Defendant is liable under any theory set forth in the PLA, the Third and Fifth Counts are
dismissed.

Breach of Express Warranty
New Jersey law establishes three ways to create an express warranty:
(a) Any affirmation of fact or promise made by the seller to the buyer which
relates to the goods and becomes part of the basis of the bargain creates an
express warranty that the goods shall conform to the affirmation or promise;
(b) Any description of the goods which is made part of the basis of the bargain
creates an express warranty that the goods shall conform to the description;
(c) Any sample or model which is made part of the basis of the bargain creates an
express warranty that the whole of the goods shall conform to the sample or
model.
N.J.S.A.

§ 12A:2—313; see also Kuzian v. Electrolux Home Products, Inc., 937 F.Supp.2d 599,

612 (D.N.J. 2013). Courts have dismissed claims for breach of an express warranty where
plaintiffs fail to specify any factual support as to the specific language or source of the alleged
warranty. See, e.g., Schraeder v. Demilec (USA) LLC, 2013 WL 3654093, at *6 (D.N.J. 2013).
“To prevail on a claim of breach of express warranty, a plaintiff must [also] show.

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that the

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warranty was relied upon.” See Kuzian v. Electrolux Home Products, Inc., 937 F.Supp.2d 599,
617 (D.N.J, 2013) (citations omitted).
Here the complaint contains no factual allegations regarding an express warranty. It
mentions neither an affirmation of fact by the Defendant, nor a description of the goods, nor a
sample or model which was the basis of a bargain. The complaint does not specify how the
device did not function as warranted or how Plaintiffs relied on the warranty. This cause of
action must be dismissed.

Loss of Consortium and Punitive Damages Are Derivative Claims
“Loss of consortium is a derivative claim which depends for its sustenance upon a viable
tort claim of the spouse.” Finley v. NCR Corp., 964 F.Supp. 882, 889 (D.N.J. 1996); see also
Banks v. International Rental and Leasing Corp., 680 F,3d 296, 300 n.8 (3d Cir. 2012).
Likewise, there can be no claim for punitive damages in a products liability case where there is
no viable underlying cause of action. See Oliver v. Raymark Industries, Inc., 799 F.2d 95, 97-98
(3d Cir. 1986) (citing Restatement (Second) of Torts
punitive damages “[ijt is essential.

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.

§ 908, comment c (1979) (in awarding

that facts be established that, apart from punitive damages,

are sufficient to maintain a cause of action.”)). Because all other causes of action are dismissed,
Plaintiffs’ claims for loss of consortium and punitive damages are dismissed as well.

Plaintiffs’ Submissions in Response to this Motion Are Unavailing
Regarding the attachments Plaintiffs submitted with their letter of December 3, 2014, the
Court first reminds Plaintiffs’ counsel of Local Rule 7.1 (b)(2), which requires that all papers in
support or opposition to a motion be filed electronically. The Court not only rejects these
materials as untimely and improperly submitted, but need not consider them in response to this

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motion. A court is generally confined to the four corners of the complaint when evaluating its
sufficiency. See Tri3 Enterprises, LLC v. Aetna, Inc., 535 F. App’x 192, 195 (3d Cir. 2013). A
trial court does have discretion to accept materials beyond the pleadings. See In re Kiwi Intern,
Air Lines, Inc., 344 F.3d 311, 315 n.3 (3d Cir. 2003). If a court accepts such materials, it must
convert the motion into one for summary judgment. Fed. R. Civ. P. 12(d). With too much
discovery required to properly evaluate a claim such as this one, the Court declines to convert the
motion into one for summary judgment and declines to accept Plaintiffs’ supplemental materials.

Plaintiffs Are Granted Leave to Amend
Leave to amend a pleading “shall be freely given when justice so requires.” Fed. R. Civ.
P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182 (1962). There has been no prior dismissal
of the complaint, Plaintiffs have not previously amended their pleadings, and Defendant has not
demonstrated that it would be prejudicial, futile, or otherwise unfair for Plaintiffs to be given
leave to amend. Because the complaint was drafted as part of a state court filing, but is now
subject to the higher pleading standards applicable in federal court, it is consistent with
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principles of fairness and justice to afford Plaintiffs an opportunity to file an amended complaint
within 90 days of the date of this Opinion.

CONCLUSION

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Compare New Jersey’s pleading standard: “In considering a motion to dismiss under Rule 4:62(e), courts search the allegations of the pleading in depth and with liberality to determine
whether a cause of action is ‘suggested’ by the facts. They must ascertain whether the fundament
of a cause of action may be gleaned even from an obscure statement of claim, opportunity being
given to amend if necessary,” Printing Mart-Morristown v. Sharp Electronics Corp., 563 A.2d
31, 34 (N.J. 1989) (citations omitted).
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Defendants motion is wanted The Complaint is dismissed

Without

prejudjc Plaintiffs

may file an amended Complaint Within 90 days of the date of this Opinion

wt

?OI
William I-I. Walls
ior United States District Judge
Sen
Ofl,

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