Wibley v. Medtronic, Inc.
OPINION AND ORDER granting 36 Plaintiff's Motion to Dismiss and finding as moot 26 Defendant's Motion to Dismiss for Failure to State a Claim and 33 Motion for Protective Order. Signed by Judge George C. Smith on 8/17/2017. (er)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
ROSA L. WIBLEY,
Case No.: 2:16-CV-1081
Magistrate Judge Deavers
OPINION AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff’s Amended
Complaint (Doc. 26). Plaintiff opposed Defendant’s Motion (Doc. 31) and Defendant replied in
support (Doc. 32). However, since Defendant’s reply, Plaintiff has filed her own Motion to
Dismiss the Amended Complaint (Doc. 36). Defendant opposed Plaintiff’s Motion for Leave
(Doc. 39) and Plaintiff replied in support (Doc. 40). These motions are now ripe for review. For
the following reasons, Plaintiff’s Motion is GRANTED and Defendant’s Motion is DENIED as
This case arises from Plaintiff’s receipt and use of a pain pump manufactured by
Medtronic. Plaintiff suffered from chronic pain in her back and used the Medtronic pump to
help control the pain via daily morphine injections. (Doc. 21, Am. Compl. at ¶¶ 45–46). The
pump was installed by Dr. Bruce Massau. (Id. at ¶ 45). The Medtronic pump installed in
Plaintiff was eventually recalled by Medtronic because the pumps were allegedly defective. (Id.
at ¶¶ 54–57).
Despite having the pain pump installed, Plaintiff continued to experience chronic pain
and saw Dr. Massau to determine the cause of the pain. (Id. at ¶¶ 84–85). In February 2016,
Massau found that a Medtronic catheter attached to the pump had failed. (Id. at ¶¶ 87–90). He
replaced the catheter, and restarted the pump. (Id.). Plaintiff continued to experience chronic
pain, over-dosing, under-dosing, and drug withdrawal symptoms while using the pump. (Id. at
¶ 92). Massau removed the pump in October 2016 because the pump failed to provide consistent
morphine dosage. (Id. at ¶¶ 93–94). Plaintiff then filed suit in this case.
However, since the filing of the Amended Complaint, Plaintiff alleges that although
Massau originally told her that he installed a new pump in February 2016, there is no evidence
he actually installed a new pump at that time. (Doc. 36, Pl.’s Mot. at 3). Plaintiff also now
alleges that Medtronic representatives were present for at least one of Plaintiff’s medical
procedures—an August 26, 2016, procedure.
Plaintiff argues that Massau and the others
responsible for her care at that time are necessary and indispensable parties. Her Motion to
Dismiss asks this Court to either join these parties and remand the case to state court or to
dismiss this case without prejudice. Defendant argues that the Court should rule on its Motion to
Dismiss. The Court will first address Plaintiff’s Motion.
Plaintiff moves this Court to dismiss her case in its entirety, or to grant joinder of new
parties and remand the case back to state court. Defendant argues that joinder is unnecessary and
inappropriate and that Plaintiff’s Amended Complaint should be dismissed with prejudice for the
reasons stated in Defendant’s Motion to Dismiss. Because Plaintiff has moved for voluntary
dismissal or joinder in the alternative, meaning that Plaintiff need not meet the explicit rules for
joinder if dismissal is otherwise appropriate under Rule 41(a)(2).
A motion for voluntary dismissal should be granted unless “‘the defendant would suffer
“plain legal prejudice” as a result of a dismissal without prejudice, as opposed to facing the mere
prospect of a second lawsuit.’” Bridgeport Music, Inc. v. Universal-MCA Music Pub., Inc., 583
F.3d 948, 953 (6th Cir. 2009) (quoting Grover by Grover v. Eli Lilly and Co., 33 F.3d 716, 718
(6th Cir. 1994)). “In determining whether such prejudice would result, courts typically consider
‘the defendant’s effort and expense of preparation for trial, excessive delay and lack of diligence
on the part of the plaintiff in prosecuting the action, insufficient explanation for the need to take
a dismissal, and whether a motion for summary judgment has been filed by the defendant.’”
Bridgeport Music, 583 F.3d at 953 (quoting Grover, 33 F.3d at 718).
Almost all of the factors weigh against a finding of legal prejudice. Although the Court
understands that Defendant has expended costs in filing two separate motions to dismiss, the
Court also notes that the legal arguments for dismissal in both of Defendant’s Motions are nearly
identical. (Compare Doc. 7, Def.’s 1st Mot. Dismiss with Doc. 26, Def.’s 2d Mot. Dismiss).
The remaining factors weigh in favor of dismissal. Most of the deadlines in this case have been
either stayed or extended and Defendant has not alleged that it has expended extensive discovery
costs that would need to be repeated if this case is refiled. This means the effort and expense
exerted by Defendant so far in this case is limited.
Although Plaintiff waited until after
Defendant filed two Motions to Dismiss, the delay in filing this motion is not excessive. Further,
it appears Plaintiff has been diligent because she stated that she recently discovered evidence of
medical malpractice on the part of Defendant and Dr. Massau through the use of subpoenas.
Regarding Plaintiff’s explanation for requesting dismissal, she has sufficiently explained that she
wishes to bring a medical malpractice claim against Medtronic and Dr. Massau. Last, Defendant
has not filed a motion for summary judgment. The Court finds that voluntary dismissal under
Rule 41(a)(2) is appropriate.
Based on the foregoing, this action is DISMISSED without prejudice. Defendant’s
Motion to Dismiss and Motion for Protective Order and Stay Discover are DENIED as moot.
The Clerk shall REMOVE Documents 26, 33, and 36 from the Court’s pending motions list and
close the case.
IT IS SO ORDERED.
__/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
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