Black, et al v. Boston Scientific Corporation
Filing
42
ORDER granting in part and denying in part 8 Defendant's Motion to Dismiss; granting in part and denying in part 32 Plaintiffs' Motion for Leave to Amend. Plaintiffs negligence, strict liability, breach of express warranty, breach of im plied warranties, and loss of consortium claims survive. Plaintiffs claims for violation of the Tennessee Consumer Protection Act, res ipsa loquitur, and punitive damages are dismissed. Signed by Judge Samuel H. Mays, Jr on 07-16-2018. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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JAMES L. BLACK and,
CATHLEEN J. BLACK
Plaintiffs,
v.
BOSTON SCIENTIFIC CORPORATION,
Defendant.
No. 2:17-cv-02638-SHM
ORDER
This action arises from injuries that Plaintiffs James L.
Black
(“Mr.
Black”)
and
his
wife,
Cathleen
J.
Black
(“Ms.
Black”), allegedly sustained because of Defendant Boston Scientific Corporation’s defective product.
Before the Court are two motions.
The first is Defendant’s
Motion to Dismiss, filed on September 8, 2017.
also ECF No. 8-1.)
(ECF No. 28.)
(ECF No. 8; see
Plaintiffs responded on November 30, 2017.
Defendant replied on December 4, 2017.
The second is Plaintiffs’ Motion for Leave to File First
Amended Complaint (“Motion to Amend”), filed on March 2, 2018.
(ECF No. 32.)
34.)
Defendant responded on March 16, 2018.
Plaintiffs replied on March 27, 2018.
(ECF No.
(ECF No. 37.)
For
the
reasons
below,
Plaintiffs’
Motion
to
Amend
is
GRANTED IN PART and DENIED IN PART, and Defendant’s Motion to
Dismiss is GRANTED IN PART and DENIED IN PART.
I.
BACKGROUND
In
mid-2016,
Mr.
Black
was
prostatectomy stress incontinence.
condition
(stress)
causes
on
the
“unintentional
bladder
with
(ECF No. 1-2 at 11.)1
loss
increases
diagnosed
of
urine
suddenly,
sneezing, running or heavy lifting.”
(Id.)
when
as
in
postHis
pressure
coughing,
Post-prostatectomy
stress incontinence can also “involve difficulty in voiding and
retention of urine.”
(Id.)
Seeking to help his condition, Mr. Black had Defendant’s
male
transobturator
sling
(the
“BSX
sling”),
mesh device, implanted around his urethra.
a
polypropylene
(Id.)
2016, Dr. Paul R. Eber implanted the BSX sling.
On June 2,
(Id.)
The BSX sling did not improve Mr. Black’s condition.
deed, Mr. Black’s condition worsened.
In-
On June 3, 2016, Mr.
Black returned to Dr. Eber for “a post-surgical trial void (assessment of the ability of the bladder to empty).”
Black was unable to empty his bladder.
(Id.)
(Id.)
Mr.
Dr. Eber inserted
“a Foley catheter (a tube to drain urine from the bladder).”
(Id.)
1
Unless otherwise noted, all pin cites for record citations are to the “PageID” page number.
2
On June 6, 2016, Mr. Black returned to see Dr. Eber.
at 11-12.)
was removed.
(Id.
Mr. Black “had a bladder spasm,” and the catheter
(Id. at 12.)
Dr. Eber told Mr. Black “to drink
fluids at home and return if he was still unable to void.”
(Id.)
On June 7, 2016, Mr. Black returned to Dr. Eber.
(Id.)
alleges he was “unable to void and in great discomfort.”
He
(Id.)
Dr. Eber inserted another catheter and removed it on June 13,
2016.
(Id.)
On June 15, 2016, Mr. Black again returned to Dr. Eber.
(Id.)
Dr. Eber instructed Mr. Black to perform “intermittent
self-catheterization . . . four times daily.”
(Id.)
On June
17, 2016, Mr. Black returned to Dr. Eber because Mr. Black was
“unable to get urine flowing from self-catheterization.”
On July 1, 2016, Mr. Black returned to Dr. Eber.
(Id.)
Dr. Eber
told Mr. Black that he was “having a very tough time postoperatively” and that his urine looked infected.
(Id.)
When Mr.
Black visited Dr. Eber the following week, Dr. Eber told Mr.
Black that he “had as many problems as you could possibly have,”
“[was] completely incontinent,” and that his urine was “still
grossly infected appearing.”
(Id.)
Mr. Black received oral an-
tibiotics for what Dr. Eber described as “a highly resistant
urinary tract infection.”
(Id.)
3
On August 2, 2016, Dr. Eber performed “a cystoscopy (examination of the bladder and urethra with a lighted scope)” on Mr.
Black.
(Id.)
“Upon getting to the area where the BSX sling had
been placed, the access was blocked by some unknown material.”
(Id.)
The same procedure was performed on August 5, 2016, but
access to Mr. Black’s bladder was again blocked by unknown material.
(Id.)
On August 16, 2016, “the eroded, failed BSX sling, which
had
perforated
[Mr.]
Black’s
urethra,
was
from [Mr.] Black by Dr. Charles Seacrest.”
surgically
(Id. at 13.)
removed
Plain-
tiffs allege that, as a result of the eroded BSX sling and the
surgery, Mr. Black was hospitalized for several days.
(Id.)
They allege that “[t]he implantation of an artificial urinary
sphincter was considered but ruled out because of the possibility of infection resulting from scar tissue caused by the eroded, failed BSX sling and the increased possibility of surgical
removal of the artificial sphincter becoming necessary as a result of such infection.”
(Id.)
Following the August 16, 2016
surgery, Mr. Black “is totally incontinent and unable to work.”
(Id.)
On July 31, 2017, Plaintiffs filed this complaint in the
Circuit Court of Tennessee for the Thirtieth Judicial District
at Memphis.
(Id.)
Plaintiffs bring
claims for negligence,
strict liability, breach of express warranty, breach of implied
4
warranties, violation of the Tennessee Consumer Protection Act
and Treble Damages, and Punitive Damages.
(Id. at 14-17.)
On
September 1, 2017, Defendant filed a Notice of Removal to this
Court.
(ECF No. 1.)
On September 8, 2017, Defendant filed the Motion to Dismiss
(ECF No. 8.)
On March 2, 2018, Plaintiffs filed the Motion to Amend.
(ECF No. 32.)
The Motion to Amend seeks to dismiss Plaintiffs’
claim for violation of the Tennessee Consumer Protection Act and
Treble Damages, and to add claims for res ipsa loquitur and loss
of consortium.
II.
(Id. at 169.)
JURISDICTION
Under 28 U.S.C. § 1332(a), this Court has original juris-
diction
of
all
civil
actions
between
citizens
of
different
states “where the matter in controversy exceeds the sum or value
of
$75,000,
exclusive
of
interest
and
costs.”
28
U.S.C.
§
1332(a)(1).
Plaintiffs are citizens of Tennessee.
(ECF No. 1-2 at 10.)
Defendant is a Delaware corporation with its principal place of
business in Massachusetts.
(ECF No. 1 at 3.)
Plaintiffs seek,
among other things, “compensatory damages in the amount of One
Million Dollars ($1,000,000).”
(ECF No. 1-2 at 17.)
The par-
ties are completely diverse, and the amount-in-controversy requirement is satisfied.
5
III. CHOICE OF LAW
In a diversity action, state substantive law governs.
See
Brocklehurst v. PPG Indus., Inc., 123 F.3d 890, 894 (6th Cir.
1997) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938)).
Where, as here, there is no dispute that a certain
state’s substantive law applies, the court will not conduct a
“choice of law” analysis sua sponte.
See GBJ Corp. v. E. Ohio
Paving Co., 139 F.3d 1080, 1085 (6th Cir. 1998); see Americoach
Tours, Inc. v. Detroit Diesel Corp., No. 04–2016 B/V, 2005 WL
2335369, at *1 (W.D. Tenn. Sept. 23, 2005) (“Because the parties
agree to the particular state law application, the court will
apply Tennessee law and will not conduct a choice of law analysis sua sponte.”).
IV.
Tennessee substantive law applies.
STANDARD OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(6)
When evaluating a motion to dismiss under Rule 12(b)(6),
the Court must determine whether the complaint alleges “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 Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)).
The plausibility standard is met “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendants are liable for
the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
6
Although the complaint need not contain “detailed factual allegations” to survive a motion to dismiss, “a plaintiff's obligation
to
provide
the
grounds
of
his
entitlement
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 (internal quotation marks and alteration omitted).
The Court is required to “accept all of [plaintiffs’] factual allegations as true and determine whether any set of facts
consistent with the allegations would entitle the plaintiff to
relief.”
G.M. Eng'rs & Assoc., Inc. v. West Bloomfield Twp.,
922 F.2d 328, 330 (6th Cir. 1990) (citation omitted).
The Court
need not accept as true legal conclusions cast in the form of
factual
allegations
if
those
conclusions
drawn from the facts, as alleged.
cannot
be
plausibly
See Iqbal, 556 U.S. at 678
(“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”);
see
also
Papasan
v.
Allain,
478
U.S.
265,
286
(1986) (noting that in reviewing a motion to dismiss, the district court “must take all the factual allegations in the complaint as true,” but that the court is “not bound to accept as
true a legal conclusion couched as a factual allegation”).
Rule
12(b)(6) “allows the Court to dismiss, on the basis of a dispositive issue of law, meritless cases which would otherwise waste
7
judicial resources and result in unnecessary discovery.”
Glass-
man, Edwards, Wade & Wyatt, P.C. v. Wolf Haldenstein Adler Freeman & Herz, LLP, 601 F. Supp. 2d 991, 997 (W.D. Tenn. Mar. 10,
2009).
B. Federal Rule of Civil Procedure 15(a)
Under Rule 15(a), leave to amend shall be freely granted
when justice so requires.
Although Rule 15(a) “provides that a
court ‘should freely give leave [to amend a complaint] when justice so requires,’ the right to amend is not absolute or automatic.”
Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 551
(6th Cir. 2008).
A court may deny leave to amend a complaint
when there is “undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, [or] futility of
amendment.”
V.
Foman v. Davis, 371 U.S. 178, 182 (1962).
ANALYSIS
A.
Motion to Amend
Plaintiffs seek dismissal of their claim for violation of
the Tennessee Consumer Protection Act.
Plaintiffs’ Motion on
that claim is GRANTED and the claim is DISMISSED.
Plaintiffs move to amend their complaint under Rule 15(a)
to add claims for res ipsa loquitur and loss of consortium.
(See ECF No. 32.)
Defendant contends that Plaintiffs’ Motion to
8
Amend should be denied on two grounds: (1) Plaintiffs’ res ipsa
loquitur claim is futile because res ipsa loquitur is not a
cause of action and (2) Plaintiffs’ loss of consortium claim is
futile because it fails to state a claim.
(ECF No. 34 at 192.)
Defendant also moves to strike a portion of Plaintiffs’ proposed
amended complaint.
1.
(Id. at 197.)
Res Ipsa Loquitur Claim
Defendant argues that the claim of res ipsa loquitur in
Plaintiffs’ proposed amended complaint is futile because res ipsa loquitur is not a cause of action in Tennessee.
(ECF No. 34
at 193-94.)
Res ipsa loquitur allows “an inference of negligence where
the jury has a common knowledge or understanding that events
which resulted in the plaintiff's injury do not ordinarily occur
unless someone was negligent.”
Seavers v. Methodist Med. Ctr.
of Oak Ridge, 9 S.W.3d 86, 91 (Tenn. 1999) (citations omitted).
Res ipsa “is simply a rule of evidence”; “it is neither a cause
of action nor a ground for recovery, nor an ‘issue.’”
Carrier
Corp. v. Piper, 460 F. Supp. 2d 827, 849 (W.D. Tenn. 2006) (internal quotations and citations omitted).
“Thus, ‘to the extent
that res ipsa loquitur is [pled] as a cause of action in the
complaint, it must be DISMISSED.’”
tations omitted).
9
Id. at 849-50 (internal quo-
Plaintiff’s Motion to Amend is DENIED insofar as it seeks
to add a claim of res ipsa loquitur.
Plaintiffs are not pre-
cluded from relying on the doctrine of res ipsa loquitur to support their negligence claim.
2.
Loss of Consortium Claim
Defendant contends that the loss of consortium claim in
Plaintiffs’ proposed amended complaint is futile.
at 196.)
(ECF No. 34
Defendant contends that “loss of consortium claims are
derivative claims.”
(Id.)
It argues that, because “[Plain-
tiffs’] other claims are subject to dismissal,” the loss of consortium claim must be dismissed.
(Id.)
That argument is insufficient to establish futility.
In
their original complaint, Plaintiffs alleged claims for negligence, strict liability, and breach of warranty.
Those claims
are not dismissed.
Plaintiffs’ Motion to Amend is GRANTED insofar as it seeks
to add a claim for loss of consortium.
3.
Motion to Strike
Defendant moves to strike an “inflammatory legal argument
in the Introduction of [Plaintiffs’] proposed [a]mended
[c]omplaint.”
(ECF No. 34 at 197.)
The relevant paragraph of
Plaintiffs’ proposed amended complaint states:
As of the date of this Amended Complaint, no discovery
has been conducted. However, Plaintiffs believe that
issues identified herein to be systematic and affect-
10
ing many similarly situated individuals. As a result,
it is likely that once the discovery process is underway, the named Plaintiffs will seek leave to amend
this Amended Complaint to add new factual allegations,
new claims, including but not limited to, Rule 23
claims, and/or new parties.
(ECF No. 32 at 172.)
Defendant contends that “[t]he unsup-
ported suggestion of a ‘systematic’ issue, affecting many
similar situated individuals provides an inaccurate and
misleading depiction of the litigation at hand and [Defendant].”
(Id.)
Federal Rule of Civil Procedure 12(f) provides that a court
“may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Strik-
ing a pleading “should be sparingly used by the courts” because
“it is a drastic remedy.”
Brown & Williamson Tobacco Corp. v.
United States, 201 F.2d 819, 822 (6th Cir. 1953).
A motion to
strike “should be granted only when ‘the allegations being challenged are so unrelated to plaintiff's claims as to be unworthy
of any consideration as a defense and that their presence in the
pleading throughout the proceeding will be prejudicial to the
moving party.’”
E.E.O.C. v. FPM Grp., Ltd., 657 F.Supp.2d 957,
965–66 (E.D. Tenn. 2009) (quoting 5A Charles A. Wright & Arthur
R. Miller, Federal Practice and Procedure § 1380 at p. 650 (2nd
ed. 1990)); see also Hughes v. Lavender, 2:10–CV–674, 2011 WL
2945843, at *2 (S.D. Ohio July 20, 2011) (“Courts generally
11
strike parts of a pleading for being scandalous or impertinent
only where the language is extreme or offensive.”).
The introductory paragraph in Plaintiffs’ proposed amended
complaint is not redundant, immaterial, impertinent, or scandalous.
That paragraph simply states that Plaintiffs may, in the
future, move to amend their complaint.
Before amendments are
allowed, the Court must grant leave to amend under Rule 15.
De-
fendant has not demonstrated that the paragraph is “obviously
false and clearly injurious to a party.”
2945843, at *2.
B.
Hughes, 2011 WL
Defendant’s Motion to Strike is DENIED.
Motion to Dismiss
Plaintiffs’ proposed amended complaint restates claims for
negligence, strict liability, breach of warranty, and punitive
damages
that
were
raised
in
Plaintiffs’
original
complaint.
(Compare ECF No. 1-2 at 14-17 with ECF No. 32 at 176-80.)
De-
fendants filed a motion to dismiss the claims in Plaintiffs’
original complaint on September 8, 2017.
ECF No. 8-1.)
No. 28.)
(ECF No. 8; see also
Plaintiffs responded on November 30, 2017.
(ECF
Defendant replied on December 4, 2017.
In the interest of judicial economy, and to avoid addressing a second motion to dismiss, the Court will consider Defendant’s Motion to Dismiss.
12
1.
Statute of Limitations
The parties dispute whether Plaintiffs’ claims for negligence, strict liability, and breach of warranty are time-barred.
In Tennessee, the statute of limitations for personal injury
cases is one year “after the cause of action accrue[s].”
Code. Ann. (a)(1).
Tenn.
The statute of limitations begins to run
“when the [plaintiffs are] ‘aware of the facts sufficient to put
a reasonable person on notice that he has suffered an injury as
a result of wrongful conduct,’ and the [plaintiffs know] the
identity of the person who engaged in the conduct.”
McIntosh v.
Blanton, 164 S.W.3d 584, 586 (Tenn. Ct. App. 2004) (quoting Roe
v. Jefferson, 875 S.W.2d 653, 656-57 (Tenn. 1994)); see Shadrick
v. Coker, 963 S.W.2d 726, 734 (Tenn. 1998) (holding that the
statute of limitations begins to run when plaintiffs have “not
only an awareness of the injury,” but also knowledge of “the
tortious origin or wrongful nature of that injury”).
The law recognizes two kinds of knowledge: actual knowledge
and constructive knowledge.
“[A] plaintiff has actual knowledge
of an injury where there has been an expert opinion given of
such injury, i.e. where the defendant admitted [to committing
the injury], or another expert opined that there was [an injury].”
Matz v. Quest Diagnostics Clinical Laboratories, Inc.,
No. E2003–00167–COA–R3–CV, 2003 WL 22409452, at *3 (Tenn. Ct.
App. 2003).
A plaintiff has constructive knowledge when he be-
13
comes aware, or should have become aware, “of facts sufficient
to put a reasonable person on notice that an injury has been
sustained as a result of defendant's negligent or wrongful conduct.”
Lane–Detman, L.L.C. v. Miller & Martin, 82 S.W.3d 284,
295 (Tenn. Ct. App. 2002).
Defendant argues that the claims in Plaintiffs’ July 31,
2017 Complaint are time-barred because “Plaintiffs should have .
. . known [they] sustained injuries on or around July 8, 2016.”
(ECF No. 8-1 at 52.)
Defendant contends that, because Mr. Black
began experiencing complications the day after surgery, and because he “sought follow up care for complications . . . seven
times,” “[i]t exceeds the bounds of judicial experience and common sense that Plaintiffs in reasonable diligence would not have
discovered Mr. Black’s injury during the days following his male
sling surgery based on Mr. Black’s immediate and ongoing medical
care.”
(ECF No. 8-1 at 52.)
Even assuming that Plaintiffs knew of Mr. Black’s injury as
early as June 3, 2016,2 Defendant fails to demonstrate that
Plaintiffs knew “the tortious origin or wrongful nature of that
injury” before August 2, 2016, when Mr. Black’s doctor performed
2
Although Defendant argues that Plaintiffs should have known of Mr. Black’s
injury in the days after his surgery, Defendant later contends that “there is
no way to tell whether Mr. Black’s harm was caused by [] natural complications flowing from his initial (pre-implant) incontinence that led to the
June 2, 2016 implant.” (ECF No. 8-1 at 44.) It would not be unreasonable
for Plaintiffs to have assumed that Mr. Black’s inability to void after his
surgery resulted from his post-prostatectomy stress incontinence, rather than
issues with the surgery.
14
a cystoscopy and found that access to the area where the BSX
sling had been placed was blocked.
Shadrick, 963 S.W.2d at 734.
The complaint alleges that, on June 3, 2016, after Mr.
Black’s surgery, “a Foley catheter . . . was inserted.”
No. 1-2 at 11.)
(ECF
When Mr. Black returned to the doctor on June
6, 2016, “[h]e was instructed to drink fluids at home and return
if he was still unable to void.”
(Id. at 12.)
On June 15,
2016, Mr. Black “was instructed in intermittent selfcatheterization to be performed four times daily.”
(Id.)
In
the following weeks, the doctor said that Mr. Black “[was] having a very tough time postoperatively,” “that his urinalysis
looked infected,” that he “had as many problems as you could
possibly have,” and that his urine “showed staph epidermidis.”
(Id.)
The complaint does not allege that Plaintiffs were told
that the reason for Mr. Black’s complications was a defective
medical device.
Mr. Black’s doctor performed a cystoscopy on
August 2, 2016.
(Id.)
It was only then, “[u]pon getting to the
area where the BSX sling had been placed [and discovering] the
access was blocked by some unknown material,” that the doctor
suspected the BSX sling was the cause of the injury.
(Id.)
On
August 16, 2016, “the eroded, failed BSX sling . . . was surgically removed from [Mr.] Black.”
15
(Id. at 13.)
Plaintiffs’ allegations demonstrate that they did not have
actual knowledge of the cause of their injuries until some time
between August 2, 2016 -- the date of Mr. Black’s first cystoscopy -- and August 16, 2016 -- the date Defendant’s BSX sling
was removed.
To the extent Defendant argues that Plaintiffs had constructive knowledge that Defendant was responsible for Plaintiffs’ injuries, that argument is not well taken.
“Whether
Plaintiffs had constructive knowledge of [Defendant’s] allegedly
wrongful conduct . . . is an issue of fact” for a jury to determine.
Fluri v. Fort Sanders Reg. Med. Ctr., No. E2005–00431–
COA–R3–CV, 2005 WL 3038627 at *4 (Tenn. Ct. App. 2005) (collecting cases); accord Young ex rel. Young v. Kennedy, 429 S.W.3d
536, 557 (Tenn. Ct. App. 2013) (holding that judgment on the
pleadings is appropriate only when “no reasonable trier of fact
could conclude that a plaintiff did not know, or in the exercise
of reasonable care and diligence should not have known, that he
or she was injured as a result of the defendant's wrongful conduct”); Burk v. RHA/Sullivan, Inc., 220 S.W.3d 896, 900–01
(Tenn. Ct. App. 2006) (“Determining when a plaintiff acquired
constructive knowledge of those elements is generally a question
for the trier of fact.”); Gosnell v. Ashland Chem., Inc., 674
S.W.2d 737, 739 (Tenn. Ct. App. 1984) (“Whether or not [the
16
plaintiff] exercised reasonable care and diligence . . . is a
fact for a jury to determine”).
Defendant relies on two cases for the proposition that,
“contrary to Plaintiffs’ contention, courts have not hesitated
to dismiss claims based on the statute of limitations.”
No. 31 at 158.)
(ECF
Both cases are inapposite.
In Howard v. R.J. Reynolds Tobacco Co., No. 1:05CV-27, 2005
WL 2088909, at *5 (E.D. Tenn. Aug. 25, 2005), the court rejected
plaintiff’s argument that his cause of action for injuries
caused by smoking did not accrue until he received a formal diagnosis of his condition.
The court reasoned that, because
plaintiff had “previously filed a lawsuit against [the defendant] in Wisconsin state court,” he “had both sustained and become aware of his alleged injuries on or before” that suit.
at *4.
Id.
Plaintiffs have not filed another lawsuit alleging inju-
ries caused by Defendant.
Thus, the reasoning of Howard does
not apply.
In Parris v. Land, No. 53505-6, 1996 WL 455864, at *5
(Tenn. Ct. App., Aug. 16, 1996), the court rejected plaintiff’s
argument that her cause of action in a dental malpractice case
did not accrue until she sought a second opinion about her condition from another doctor.
Plaintiff alleged that, for more
than fourteen months after the extraction of her wisdom teeth,
her doctor “told her the numbness ‘would eventually wear off,
17
and that she need not be concerned with it.’”
Id. at *1.
The
court held that, “[e]ven accepting as true [the doctor’s] statement to [plaintiff] that she should not be concerned . . . . in
the exercise of reasonable care and diligence, [plaintiff]
should have discovered her cause of action prior to April 30,
1992, (more than five months after the surgery).”
Id. at *5.
Parris is distinguishable from this case on several
grounds.
Although the doctor in Parris told plaintiff that she
need not be concerned about her numbness for one year, plaintiff
“concede[d] that she began worrying that her condition was permanent . . . three to four months following the surgery . . . .
Yet suit was not filed until over a year later.”
Id.
In this
case, Plaintiffs do not allege that they suspected any problems
with Defendant’s BSX sling until August 16, 2016, when the BSX
sling was removed.
Although the plaintiff in Parris argued that
her cause of action did not begin to run until more than fourteen months after her injury, Plaintiffs contend that the statute of limitations began to run only two months after Mr.
Black’s injury.
The latter is a more reasonable time for Mr.
Black, “in the exercise of reasonable care and diligence,” to
have discovered the cause of his injury.
Id.
Parris does not
help Defendant.
Viewing the evidence in the light most favorable to Plaintiffs and drawing all reasonable inferences in their favor, a
18
jury could find that Plaintiffs were unaware of the origin of
Mr. Black’s injury until some time between August 2, 2016, and
August 16, 2016.
2017.
Plaintiffs filed their complaint on July 31,
(ECF No. 1-2 at 10.)
The claims in Plaintiffs’ complaint
are timely because less than one year had passed since Plaintiffs’ cause of action accrued.
2.
Requirements of the Tennessee Products Liability
Act
Defendant argues that Plaintiffs’ claims of negligence,
strict liability, breach of express warranty, and breach of implied warranties are futile given the Tennessee Products Liability Act of 1978, Tenn. Code Ann. §§ 29–28–101, et seq. (“TPLA”).
(ECF No. 8-1 at 38-43.)
Defendant contends that Plaintiffs
“fail[] to state any factual allegations identifying a specific
defect existed in the [Defendant’s] male sling or how such alleged defect caused Plaintiffs’ injuries.”
(Id. at 39.)
The TPLA provides that: “A manufacturer or seller of a
product shall not be liable for any injury to a person or property caused by the product unless the product is determined to
be in a defective condition or unreasonably dangerous at the
time it left the control of the manufacturer or seller.”
Code Ann. § 29–28–105(a).
Tenn.
“[W]hether a plaintiff's claim
against a product manufacturer is couched in negligence, strict
liability, or breach of warranty, Tennessee courts have held
19
that the plaintiff must establish that the product was defective
or unreasonably dangerous at the time the product left the control of the manufacturer.”
Stockton v. Ford Motor Co., 2017 WL
2021760, at *3 (Tenn. Ct. App. May 12, 2017) (collecting cases).
To establish a prima facie products liability claim under
the TPLA, “the plaintiff must show: (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 [plaintiffs’] injury was proximately caused by the defective
product.”
Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th
Cir. 2008) (internal quotations marks omitted).
Under the TPLA, a product is “defective” if its condition
“renders it unsafe for normal or anticipatable handling and consumption.”
Tenn. Code Ann. § 29–28–102(2).
That a plaintiff
allegedly suffered an injury caused by a product does not establish that the product was defective.
See King v. Danek Med.,
Inc., 37 S.W.3d 429, 435 (Tenn. Ct. App. 2000) (“[T]he failure
or malfunction of the device, without more, will not make the
defendant liable.”); Tatum v. Cordis Corp., 758 F. Supp. 457,
461 (M.D. Tenn. 1991) (“It is not enough to show that the product caused the plaintiff's injury or was involved in it.”).
plaintiff “must show that there was something wrong with the
product, and trace the plaintiff’s injury to the specific defect.”
Id.
20
A
Defendant argues that Plaintiffs have not alleged a product
defect.
Relying on Frey v. Novartis Pharm. Corp., 642 F. Supp.
2d 787, 795 (S.D. Ohio 2009), Defendant argues that Plaintiffs’
complaint does not “allege why the male sling was allegedly unreasonably dangerous and/or in a defective condition.”
(ECF No.
8-1 at 41.)
In Frey, plaintiffs alleged that “[t]he product which was
consumed by Plaintiff[s] was defective in design and construction at the time it left the Defendants’ control” and “[a]s a
direct and proximate result of the defect in manufacture or construction by Defendants, Plaintiff[s] [ ] suffered the injuries
[ ] and damages set forth herein.”
Id. at 790.
The court con-
cluded that those allegations were insufficient to withstand a
motion to dismiss because “[Plaintiffs] have failed to allege
any facts that would permit the Court to conclude that a manufacturing defect occurred and that the defect was the proximate
cause of [Plaintiffs’] alleged injuries.”
Id. at 795.
Unlike Frey, Plaintiffs here identify a specific product
defect.
Plaintiffs allege that “Dr. Eber was [] unable to pass
the cystoscope into the bladder because of necrotic-appearing
(dead tissue) -- debris later determined after explanation to be
eroded mesh fibers from the BSX Sling.”
(ECF No. 32 at 175.)
Plaintiffs also allege that when Defendant’s BSX sling was removed from Mr. Black, it had “perforated [Mr.] Black’s urethra.”
21
(Id.)
They allege that those defects caused their injuries.
(Id. at 176.)
Plaintiffs’ complaint alleges “specific problems
with the product,” which “are more than sufficient to ‘nudge
[their] claims across the line from conceivable to plausible.’”
Friedman v. Intervet Inc., No. 3:09-CV-2945, 2010 WL 2817257, at
*3, *4 (S.D. Ohio July 16, 2010) (quoting Twombly, 550 U.S. at
570).
Defendant also argues that Plaintiffs have failed to allege
that Plaintiffs’ injury was proximately caused by Defendant’s
product.3
(ECF No. 8-1 at 43-45.)
Defendant argues that:
[B]ased on the facts as pled, there is no way to tell
whether Mr. Black’s harm was caused by (1) natural
complications flowing from his initial (pre-implant)
incontinence that led to the June 2, 2016 implant; (2)
surgical complications unrelated to the male sling;
(3) anatomical issues (4) natural complications flowing from unrelated co-morbidities or adverse health
conditions; or (5) alleged problems associated with
the male sling.
(Id. at 44.)
Defendant’s argument overlooks the allegations in Plaintiffs’ complaint.
Plaintiffs allege that their injuries were
caused by Defendant’s “eroded, failed BSX Sling, which had perforated [Mr.] Black’s urethra.”
(ECF No. 1-2 at 13.)
Plain-
tiffs allege that the “eroded mesh fibers from the BSX Sling”
3
Defendant does not dispute that Plaintiffs have adequately pled the second
element of their prima facie case under the TPLA, that the defect existed at
the time the product left the manufacturer's control. Sigler, 532 F.3d at
483. Plaintiffs’ complaint alleges that, “[a]t the time the BSX Sling was
implanted into [Mr.] Black, it was in the same condition in all relevant respects as when it left Defendant[’s] [] control.” (ECF No. 1-2 at 11.)
22
caused their injuries.
(Id. at 12.)
Those allegations are
“more than labels and conclusions [or] a formulaic recitation of
the elements of a cause of action.”
Twombly, 550 U.S. at 555.
The allegations are sufficient to “adequately put Defendant on
notice as to the legal claims that [Plaintiffs] seek to pursue
and [plead] with specificity the product that failed, when it
failed, and what harms were suffered as a result.”
Young v.
Depuy Orthopaedics, Inc., No. 1:13-cv-30, 2012 WL 12030026, at
*4 (E.D. Tenn. Dec. 23, 2013) (denying a defendant’s motion to
dismiss plaintiffs’ TPLA claims when plaintiffs alleged that “a
hip prosthesis implanted in 2002 [] spontaneously fractured in
2009” and “the fractured femoral stem of the prosthesis was the
cause of [plaintiff’s] injuries”).
Plaintiffs allege that Defendant’s product was defective,
that the defect existed when the product left Defendant’s control, and that Plaintiffs’ injury was proximately caused by Defendant’s defective product.
80.)
(See generally ECF No. 32 at 172-
Plaintiffs have alleged a prima facie case of products li-
ability under the TPLA.
Defendant’s Motion to Dismiss is DENIED
insofar as it seeks to dismiss Plaintiffs’ negligence, strict
liability, and breach of warranty claims on that ground.
3.
Breach of Express Warranty Claim
Defendant argues that Plaintiffs’ breach of express warranty claim is futile.
(ECF No. 8-1 at 45-46.)
23
Defendant contends
that “Plaintiffs do not come anywhere close to alleging a specific warranty.”
(ECF No. 8-1 at 45.)
Defendant argues that
“Plaintiffs’ allegations are devoid of any facts regarding
where, when, how, or to who an express warranty was allegedly
given or how any express warranty ‘induced’ Mr. Black to undergo
the male sling implant procedure.”
(Id.)
“To establish a prima facie claim for breach of an express
warranty, a plaintiff must prove that (1) the seller made an affirmation of fact intending to induce the buyer to purchase the
goods; (2) the buyer was, in fact, induced by the seller's acts;
and (3) the affirmation of fact was false regardless of the
seller's knowledge of the falsity or intention to create a warranty.”
Smith v. TimberPro Inc., 2017 WL 943317, at *3 (Tenn.
Ct. App. Mar. 9, 2017).
Defendant relies on Galloway v. Big G Express, Inc., No.
3:05-cv-545, 2008 WL 80262 (E.D. Tenn. Jan. 7, 2008).
There,
the court dismissed plaintiff’s claim of breach of express warranty because plaintiff’s complaint “fail[ed] to include any allegations of express warranties created by Defendant.”
Galloway, 2008 WL 80262, at *4.
Here, Plaintiffs’ complaint alleges that, “[i]n its marketing of the BSX Sling, [Defendant] expressly warranted that the
BSX Sling was safe and/or safer than other comparative methods
of treatment for post-prostatectomy stress incontinence.”
24
(ECF
No. 1-2 at 15.)
Plaintiffs allege that Defendant breached that
express warranty because “the BSX Sling constituted a serious
danger of complications and side effects to the persons in whom
the BSX Sling was implanted.”
(Id.)
Under Tennessee law, “[a]ny description of the goods which
is made a part of the basis of the bargain creates a warranty
that the goods shall conform to the description.”
Ann. § 47–2–313(b).
Tenn. Code
Unlike Galloway, Plaintiffs allege that De-
fendant gave them an express warranty.
Plaintiffs have suffi-
ciently alleged a breach-of-express-warranty claim.
Defendant’s
Motion to Dismiss is DENIED insofar as it seeks to dismiss that
claim.
4.
Punitive Damages
Defendant contends that Plaintiffs’ claim for punitive damages is futile.
Defendant argues that “Plaintiffs have not al-
leged any facts which show that [Defendant] acted, or failed to
act, with the requisite state of mind.”
(ECF No. 8-1 at 47.)
To the extent Plaintiffs allege punitive damages as a cause
of action, that claim is dismissed.
cause of action.”
“Punitive damages is not a
Jimenez v. Vanderbilt Landscaping, LLC, No.
3–11–0276, 2011 WL 3027190, at *1 (M.D. Tenn. July 25, 2011).
Defendant’s Motion to Dismiss is GRANTED insofar as it seeks to
dismiss an independent claim for punitive damages.
25
Plaintiffs’ complaint can also be construed to seek punitive damages as a remedy.
To recover punitive damages in Ten-
nessee, Plaintiffs must show by clear and convincing evidence
that Defendant acted intentionally, fraudulently, maliciously,
or recklessly.
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901
(Tenn. 1992); see also Rogers v. Louisville Land Co., 367 S.W.3d
196, 211 n.14 (Tenn. 2012) (noting that an award of punitive
damages is limited to “the most egregious cases” and is proper
only where there is clear and convincing proof that the defendant has acted either “intentionally, fraudulently, maliciously,
or recklessly” under Hodges).
“A person acts recklessly when
the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard
constitutes a gross deviation from the standard of care that an
ordinary person would exercise under all the circumstances.”
Id.
Plaintiffs allege that Defendant was “guilty of negligence
and disregard for safety in the design, manufacture, distribution and marketing of the BSX Sling.”
(ECF No. 1-2 at 14.)
Plaintiffs allege that Defendant “[f]ail[ed] to conduct adequate
and appropriate testing of the BSX Sling.”
(Id.)
Plaintiffs do
not allege that Defendant acted intentionally, fraudulently, maliciously, or recklessly.
They do not allege that Defendant
knew or was aware of its defective product.
26
See Doe 1 ex rel.
Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 38
(Tenn. 2005).
Defendant’s Motion to Dismiss is GRANTED insofar
as it seeks to dismiss punitive damages as a remedy.
VI.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion to Amend is
GRANTED IN PART and DENIED IN PART, and Defendant’s Motion to
Dismiss is GRANTED IN PART and DENIED IN PART.
Plaintiffs’ neg-
ligence, strict liability, breach of express warranty, breach of
implied
warranties,
and
loss
of
consortium
claims
survive.
Plaintiffs’ claims for violation of the Tennessee Consumer Protection Act, res ipsa loquitur, and punitive damages are dismissed.
So ordered this 16th day of July, 2018.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
27
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