Kelley v. Howard Berger Company, Inc. et al

Filing 47

MEMORANDUM AND ORDER denying Defendant Apria Healthcare's 28 Motion to Dismiss. Defendant Apria Healthcare, Inc. shall file its answer on or before 8/26/13. Signed by District Judge David L Bunning on 8/6/13. (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
CIVIL ACTION NO. 13-96-DLB-HBG
KENNETH KELLEY,
as the son, next of kin, and heir at law of
JIMMY L. KELLEY, deceased,

VS.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

HOWARD BERGER COMPANY, INC., et al.

DEFENDANTS

* * * * * * * * *
This matter is currently before the Court on Defendant Apria Healthcare, Inc.’s
Motion to Dismiss (Doc. # 28). Plaintiff having filed his response (see Doc. # 42), and no
reply having been filed, and the time for such reply having now expired, the motion is ripe
for review. For the reasons set forth below, the Court will deny the motion.
I.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are derived from the Complaint and are assumed to be true for
the purposes of the instant motion. Jimmy L. Kelley was killed when a fire erupted in a
travel camper in which he was residing. His son, Plaintiff Kenneth Kelley, initiated the
instant case with the filing of a Complaint on February 20, 2013, alleging several causes
of action against (among others) Defendant Apria Healthcare, Inc., the supplier of various
oxygen tanks, regulators, conserving regulators, and an oxygen communicator, used by
the decedent to deliver the oxygen he needed to breathe. (See Doc. # 1). Plaintiff alleges
that the devices supplied by Defendant leaked oxygen and that “this oxygen caused,
contributed to, or intensified the fire that killed the Decedent.” (Doc. # 42, at 1). He also
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alleges several causes of action against Defendants Howard Berger Company, Inc. and/or
Howard Berger Company, LLC, the manufacturer of a space heater that decedent used to
heat his camper. (See Doc. # 1).
Plaintiff brings claims against Defendant Apria Healthcare, Inc. for violation of the
Tennessee Product Liability Act, breach of express warranty, breach of implied warranty
of merchantability, breach of implied warranty for fitness for a particular purpose, common
law negligence, res ipsa locquitur, strict liability, failure to warn, and seller liability. (See
id.). All of Plaintiff’s claims are based on design defect and failure to warn theories of
liability.
Defendant April Healthcare, Inc. has filed the instant Motion to Dismiss (Doc. # 28)
seeking dismissal of all counts pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim upon which relief can be granted. Analysis of that motion follows
below.
II.
A.

ANALYSIS

Standard of Review

Federal Rule of Civil Procedure 8(a) requires only a “short and plain statement of
the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus,
551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In reviewing a Rule 12(b)(6) motion to dismiss, this Court “must construe the complaint in
a light most favorable to the plaintiff, and accept all of [his] factual allegations as true.
When an allegation is capable of more than one inference, it must be construed in the
plaintiff’s favor.” Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998) (citations omitted). The
Court, however, is not bound to accept as true unwarranted factual inferences, Morgan v.
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Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987), or legal conclusions unsupported
by well-pleaded facts. Teagardener v. Republic-Franklin Inc. Pension Plan, 909 F.2d 947,
950 (6th Cir. 1990).
To survive a motion to dismiss, the complaint “does not need detailed factual
allegations,” Twombly, 550 U.S. at 555, but it must present “enough facts to state a claim
to relief that is plausible on its face.” Id. at 570. To satisfy this standard, the complaint
must provide “more than labels and conclusions [or] a formulaic recitation of the elements
of a cause of action.” Id. at 555. The “[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Id.
B.

Defendant’s Motion To Dismiss

Although Plaintiff has asserted various claims against Defendant, each of them fall
under the Tennessee Product Liability Act of 1978, T.C.A. §§ 29-28-101, et seq. As this
Court has previously explained:
[I]t makes no difference whether the complaint is couched in terms of
negligence, strict liability or breach of warranty, it has generally been held in
the State of Tennessee that in order for a plaintiff to recover under any theory
of product liability, the plaintiff must establish that the product was defective
and unreasonably dangerous at the time the product left the control of the
manufacturer.
Maness v. Boston Scientific, 751 F.Supp.2d 962, 967 (E.D. Tenn. 2010) (citation omitted).
To survive a Rule 12(b)(6) motion to dismiss to his claims, Plaintiff must assert facts
showing “(1) the product was defective and/or unreasonably dangerous, (2) the defect
existed at the time the product left the manufacturer's control, and (3) the plaintiff's injury
was proximately caused by the defective product.” Id. at 968 (citation omitted).
Defendant argues that Plaintiff has not met this pleading burden as to the first and
third elements because he has not identified a specific defect or design flaw in the
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equipment it supplied to the decedent, and because he fails to connect the decedent’s
death to the equipment. According to Defendant, Plaintiff merely asserts in conclusory
fashion that the equipment was defective and/or unreasonably dangerous, and that the
decedent was subsequently harmed.
Defendant attempts to analogize this case to Maness. In that case, the plaintiff
brought a product liability action under the Tennessee Product Liablity Act against the
product manufacturer for injuries she sustained after having a spinal cord simulation
system device implanted. Id. at 964-65. Her complaint alleged that the “defective medical
device [the Device] was not fit for the purpose intended and was defective and therefore
caused the plaintiff harm.” Id. at 969. She alleged no facts demonstrating that the device
caused her injuries. In considering the defendants’ motion to dismiss, the court noted that
it was insufficient for the plaintiff to merely allege that she had been injured; rather, it
explained that the plaintiff’s burden was to “trace the injury to some specific error in
construction or design of the [product]” and to allege facts showing that the specific defect
caused her pain. Id. at 970-71 (quotation omitted). The court granted the motion to
dismiss because it found that the plaintiff had failed to offer any facts from which the court
could infer that the device was defective or unreasonably dangerous, and proximately
caused the plaintiff’s injuries. Id. at 969-972. Defendant argues that Plaintiff’s Complaint
suffers from the same deficiencies. The Court disagrees.
Plaintiff specifically alleges that the equipment supplied by Defendant was defective
or unreasonably dangerous because it leaked oxygen and because Defendant failed to
outfit the equipment with “proper safety mechanisms, including, but not limited to,
mechanisms that would prevent oxygen from leaking and/or mechanisms that would have
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prevented the creation of a fire and/or prevented the intensity of the fire from increasing.”
(Doc. # 1, at ¶¶ 25, 70). Unlike the plaintiff in Maness, therefore, Plaintiff identifies a
specific product defect. His Complaint is thus more similar to the one at issue in Friedman
v. Intervet Inc., No. 3:09CV2945, 2010 WL 2817257 (S.D. Ohio July 16, 2010), which this
Court cited in Maness as an example of an adequately pleaded product liability complaint.
In Friedman, the plaintiff alleged “specific problems with the product [a veterinary
pharmaceutical used to treat diabetes in animals]; namely, that test results showed the
product was out of specification with regard to its primary compound, and that this was a
deviation from the product's intended characteristics.” Maness, 751 F. Supp. 2d at 970
(quoting Friedman, 2010 WL 2817257, at *3). The Court held that these allegations
sufficiently identified a product defect so as to withstand the defendant’s Rule 12(b)(6)
motion. Id. So too here, because Plaintiff adequately identifies a product defect in the
oxygen equipment, he has met his pleading burden as to the first element of his product
liability claims.
As to the third element—proximate causation—the Court agrees with Defendant that
Plaintiff’s Complaint is rather vague. It mentions that a fire erupted in the camper, that the
oxygen equipment leaked oxygen, that the equipment lacked safety mechanisms to prevent
it from creating or contributing to a fire, and that the space heater posed a serious danger
of malfunctioning and causing a fire. Missing from these allegations is a coherent theory
of causation. How did the fire start? What role, if any, did the oxygen equipment play?
The Complaint does not clearly answer these questions.
Nevertheless, the Court finds that Plaintiff adequately remedies the confusion in his
response brief (Doc. # 42). There, Plaintiff clarifies that “[o]xygen is flammable and the
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presence of oxygen is extremely dangerous and likely to cause a fire or increase the
intensity of any fire that is started.” (Id. at 2). He further explains that “the products
provided by Apria Healthcare were defective because these devices leaked oxygen and
this defective state caused the plaintiff’s injuries in that it caused, contributed to, or
intensified the fire that killed Mr. Kelley.” (Id. at 3). These statements, in conjunction with
the allegations in the Complaint, sufficently allege a causal link between the alleged product
defect—leaking oxygen—and the decedent’s death: namely, that the leaking oxygen either
caused the fire that killed decedent, or intesified a pre-existing fire. See generally, Pegram
v. Hendrich, 530 U.S. 211, 229 n.10 (2000) (a pleader’s statement in a legal memorandum
may be used to “clarify allegations in her complaint whose meaning is unclear”).
Plaintiff has thus satisfied his burden by giving Defendant “fair notice of what the .
. . claim is and the grounds upon which it rests,” Erickson, 551 U.S. at 93 (citation omitted),
and by providing “more than labels and conclusions [or] a formulaic recitation of the
elements of a cause of action.” Twombly, 550 U.S. at 555. The Court will therefore deny
Defendant’s motion to dismiss.
III.

CONCLUSION

Accordingly, for the reasons stated herein, IT IS ORDERED as follows:
(1)

Defendant Apria Healthcare, Inc.’s Motion to Dismiss (Doc. # 28) is hereby

DENIED; and
(2)

Defendant Apria Healthcare, Inc. shall file its Answer on or before August 26,

2013.

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This 5th day of August, 2013.

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