Pettit et al v. DJO Utah
MEMORANDUM DECISION and ORDER denying 10 Motion to Dismiss for Failure to State a Claim. Signed by Judge David Nuffer on 4/16/2018. (blh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
FRANK PETTIT and KATHY PETTIT,
DJO UTAH, LLC aka DJO SURGICAL dba
ENCORE MEDICAL and DONJOY
IMPLANTS, and DOES I–V (ENCORE
MEMORANDUM DECISION AND
ORDER DENYING  DEFENDANTS’
MOTION TO DISMISS PURSUANT TO
FEDERAL RULE OF CIVIL
Case No. 4:18-cv-00011-DN
District Judge David Nuffer
Defendant Encore Medical L.P. (“Encore Medical”) 1 filed a motion to dismiss (the
“Motion to Dismiss”) 2 the claims asserted by plaintiffs Frank Pettit and Kathy Pettit (the
“Pettits”) under Rule 12(b)(6) 3 for failure to state a claim. The Motion to Dismiss is denied
without further briefing because it relies upon Encore Medical’s version of the facts. This is
impermissible on a motion to dismiss.
The Motion to Dismiss calls into question the sufficiency of the Pettits’ complaint for
product liability (the “Complaint”). 4 The Complaint alleges that Mr. Pettit suffered
complications, specifically a bacterial infection, after Encore Medical’s device, a shoulder
Plaintiffs named as the defendants “DJO Utah, LLC, aka DJO Surgical, dba Encore Medical and DonJoy Implants
and John Doe Defendants I–V.” Encore Medical contends that no such company exists, that steps have been taken to
correct the company name with Utah’s Department of Commerce, and that Encore Medical is the proper party in
interest. Notice or Removal, Exhibit C, Amendment to Foreign Registration, docket no. 2-3, filed April 5, 2018.
Defendants’ Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Motion to Dismiss”),
docket no. 10, filed April 12, 2018.
Fed. R. Civ. P. 12(b)(6).
Complaint, docket no. 2-1, filed April 5, 2018 (provided with Notice of Removal after initially filed in Sixth
District Court, State of Utah).
prosthesis, was surgically implanted in Mr. Pettit. 5 Encore Medical argues that “nothing about
Encore Medical’s shoulder device . . makes infection more likely than any other shoulder
device,” and that “the risk of this infection exists for any shoulder replacement surgery, not just
surgery related to Encore Medical’s device.” 6 Encore Medical’s position is that infection is “a
common risk of all surgeries and a complication unrelated to the medical device.” 7 While Encore
Medical’s assertions could prove to be true, the Pettits have effectively pleaded otherwise.
For purposes of a motion to dismiss, well-pleaded factual allegations are accepted as true
and viewed in the light most favorable to plaintiff as the non-moving party. 8 The Pettits allege
that the design of the shoulder device “failed to mitigate against but in fact promulgated a known
hazard,” that is, the bacterial infection. 9 The Pettits further allege that the subject device was
defectively designed, including use of improper or defective materials more susceptible to
infection. 10 These allegations are sufficient to survive a motion to dismiss.
Encore Medical contends that the breach of warranty and implied contract claims must be
dismissed because the Pettits have not alleged reliance or privity of contract with Encore
Medical. 11 The Pettits allege an implied contract of which they were an intended beneficiary. 12
The Complaint also asserts that the Pettits expected the shoulder device to be free from
dangerous defects or conditions. 13 Encore Medical questions whether such expectations were a
Complaint ¶¶ 5–8.
Motion to Dismiss at 2.
Id. at 8.
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997).
Complaint ¶ 8.
Id. ¶ 7.
Motion to Dismiss at 10–11.
Complaint ¶¶ 27, 28, 31, 32.
“basis of the bargain.” 14 But proving that the relationship between the Pettits and Encore
Medical was any different than alleged, or that the Pettits did not rely on an expectation of safety
from infections, would require fact analysis outside the procedure of a motion to dismiss. 15
Encore Medical asserts the learned intermediary doctrine, which holds that a patient
relies upon the judgment of an intermediary physician when a medical product is available only
through the services of the physician. 16 This doctrine does not support dismissal under Rule
12(b)(6). The Pettits have raised a question of fact as to whether the product was defective, as
well as the sufficiency of Encore Medical’s warnings to both the end user and any intermediary,
such as the surgeon. 17 Encore Medical correctly asserts that “the duties of doctors and medical
device manufacturers are ‘separate and independent’ from each other.” 18 In this case, however,
that delineation remains to be clarified and cannot be decided on the Motion to Dismiss.
In summary, the Complaint alleges facts that, if true, support the Pettits’ claims.
Therefore, this case is not subject to dismissal under Rule 12(b)(6) for failure to state a claim.
IT IS HEREBY ORDERED that the Motion to Dismiss 19 is DENIED.
Dated April 16, 2018.
BY THE COURT:
United States District Judge
Motion to Dismiss at 11.
Fed. R. Civ. P. 12(b)(6).
Id. at 6–7 (citing Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 974–75 (10th Cir. 2001)).
Complaint ¶ 7.
Motion to Dismiss at 8 (citing King v. Searle Pharm., Inc., 832 P.2d 858, 866 (Utah 1992)).
Docket no. 10.
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