Rhodes v. Covidien LP et al, No. 2:2018cv10667 - Document 22 (E.D. La. 2019)
Court Description: ORDER AND REASONS: For the foregoing reasons as set forth in the document, defendants' 7 motion to dismiss is GRANTED IN PART and DENIED IN PART. Plaintiff's inadequate warning, design defect, breach of express warranty, and redhibition claims are DISMISSED WITHOUT PREJUDICE. Plaintiff's claims for negligence, breach of warranty of fitness for ordinary use, and breach of implied warranty of merchantability and fitness, are DISMISSED WITH PREJUDICE. The Court denies defendants' motion to dismiss plaintiff's construction or composition defect claim. Any amended complaint must be filed within twenty-one (21) days of the entry of this order. Signed by Judge Sarah S. Vance on 5/17/2019. (mm)
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Rhodes v. Covidien LP et al Doc. 22 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KIRBY RHODES CIVIL ACTION VERSUS NO. 18-10 667 COVIDIEN LP, ET AL. SECTION “R” (2) ORD ER AN D REASON S Before the Court is defendants Covidien LP’s and Medtronic, Inc.’s m otion to dism iss plaintiff Kirby Rhodes’s com plaint, which asserts various causes of action arising from injuries allegedly caused by defendants’ products.1 The Court dism isses all of plaintiff’s claim s, except for his construction or com position defect claim . I. BACKGROU N D This case arises out of allegations that defendants designed and m anufactured two defective products.2 According to the com plaint, on October 23, 20 17, plaintiff underwent surgery to repair a hernia, during which a Parietex Com posite Mesh was im planted into his abdom en.3 1 2 3 R. Doc. 7. R. Doc. 1-1. Id. at 4 ¶ 7. Dockets.Justia.com Nonparty Dr. David Rau allegedly perform ed the surgery.4 Plaintiff alleges that Dr. Rau initially attem pted to use an applicator to im plant the m esh, but that the applicator “m alfunctioned.”5 After it m alfunctioned, Dr. Rau allegedly rem oved the m esh from the applicator, and placed the m esh onto plaintiff’s anterior abdom inal wall without it.6 Defendants m anufacture both the Parietex Com posite Mesh and the applicator.7 Plaintiff alleges that m onths after the surgery, in J une 20 18, he noticed that his stom ach was protruding in the sam e m anner it had before his surgery.8 Dr. Rau allegedly evaluated plaintiff on J uly 11, 20 18.9 During this exam ination, Dr. Rau allegedly disclosed to plaintiff that the applicator had failed during surgery, and that he had to “spread the m esh by other m eans.”10 Plaintiff alleges that Dr. Rau adm itted that he “should have placed the m esh m ore to the left” when he im planted it, and that he wishes he had used a “larger m esh.”11 Plaintiff further alleges that Dr. Rau told him that the m esh 4 Id. Id. at 4-5 ¶ 8. Defendants explain in their brief that the applicator used during the procedure was a positioning system known as AccuMesh. R. Doc. 7-1 at 11. 6 R. Doc. 1-1 at 4-5 ¶ 8. 7 See generally id.; R. Doc. 7-1 at 6. 8 R. Doc. 1-1 at 5 ¶ 10 . 9 Id. at 5-6 ¶ 13. 10 Id. 11 Id. 2 5 m ay have m oved inside his abdom en when plaintiff “coughed or sneezed.”12 On August 3, 20 18, plaintiff was allegedly exam ined by Dr. J am es Wooldridge.13 Dr. Wooldridge allegedly told plaintiff that his “hernia was unfortunately protruding out of [his] intestine,” which would not occur “if the hernia m esh [had been] placed properly” so that it would “be m aintained in its original position.”14 Plaintiff alleges that “[a]s a result of the im plantation of the unreasonably dangerous and defective Parietex Com posite Mesh and its applicator, [he] suffered injuries including, but not lim ited to, scarring, pain, potential infection, and the need for future hernia surgical repair.”15 Plaintiff asserts that the m esh is defective because it is “weak” and “known to unravel[,] causing the polyester fiber to detach and travel to other parts of the body inciting an inflam m atory response.”16 Plaintiff brings claim s against defendants under various provisions of the Louisiana Products Liability Act (LPLA), La R.S. 9:280 0 .51, et seq.; 17 for redhibition under La. 12 13 14 15 16 17 Id. Id. at 6 ¶ 14. Id. Id. ¶ 15. Id. at 6-7 ¶ 18. Id. at 8-10 ¶¶ 26-41. 3 Civ. Code arts. 2520 , et seq.; 18 for negligence; 19 for breach of warranty of fitness for ordinary use; 20 and for breach of im plied warranty of m erchantability and fitness.21 Plaintiff states in his opposition that he has separately brought a m edical m alpractice suit against Dr. Rau, and that this suit is a “com panion suit.”22 Defendants m ove to dism iss plaintiff’s com plaint for failure to state a claim upon which relief can be granted, under Federal Rule of Civil Procedure 12(b)(6).23 II. LEGAL STAN D ARD To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the m isconduct alleged.” 18 19 20 21 22 23 Id. at 10 ¶¶ 46-49. Id. ¶¶ 43-45. Id. at 10 -11 ¶¶ 50 -53. Id. at 11 ¶¶ 54-57. R. Doc. 14 at 1. R. Doc. 7. 4 Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. See Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 232 (5th Cir. 20 0 9). A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that the plaintiff’s claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elem ents of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal relevant evidence of each elem ent of the plaintiff’s claim . Lorm and, 565 F.3d at 257. The claim m ust be dism issed if there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7). III. D ISCU SSION A. N o n -LPLA Claim s In Louisiana, the LPLA provides the exclusive theories of liability of a m anufacturer for dam ages caused by its product. La. R.S. 9:280 0 .52. A plaintiff m ay not recover from a m anufacturer in tort under any theory of 5 liability that is not set forth in the LPLA. Id.; see also Stahl v. Novartis Pharm . Corp., 283 F.3d 254, 261-62 (5th Cir. 20 0 2). Plaintiff includes three non-LPLA claim s that are precluded by the statute: negligence, breach of warranty of fitness for ordinary use, and breach of im plied warranty of m erchantability and fitness.24 These claim s are therefore dism issed with prejudice.25 B. LPLA Claim s The LPLA provides that a m anufacturer “shall be liable to a claim ant for dam age proxim ately caused by a characteristic of the product that renders the product unreasonably dangerous when such dam age arose from a reasonably anticipated use of the product by the claim ant or another person or entity.” La. R. S. 9:280 0 .54(A). A product is unreasonably dangerous for the purposes of the statute “if and only if” it is unreasonably dangerous either (1) in construction or com position, (2) in design, (3) because of inadequate warning, or (4) because of nonconform ity to an express warranty. Id. at 9:280 0 .54(B)(1-4). Thus, the LPLA lim its the plaintiff to four theories of recovery: construction or com position defect, design defect, inadequate 24 R. Doc. 1-1 at 10 -11. Plaintiff concedes in his opposition that these three claim s are barred, and does not oppose their dism issal. R. Doc. 14 at 4. 6 25 warning, and breach of express warranty. The com plaint includes causes of action under each of these theories. 1. Construction or Com position Defect To establish a claim for defective construction or com position, a plaintiff m ust establish that, “at the tim e the product left its m anufacturer’s control, the product deviated in a m aterial way from the m anufacturer’s specifications or perform ance standards for the product or from otherwise identical products m anufactured by the sam e m anufacturer.” La. R.S. 9:280 0 .55. A claim ant m ust show “not only what a m anufacturer’s specifications or perform ance standards are for a particular product, but how the product in question m aterially deviated from those standards so as to render it unreasonably dangerous.” Ly les v. Medtronic Sofam or Danek, USA, Inc., 871 F.3d 30 5, 311 (5th Cir. 20 17) (internal quotation m arks om itted). A claim ant m ust also show that the alleged defect was the causein-fact of his injury, as well as the “m ost probable cause.” See W heat v. Pfizer, Inc., 31 F.3d 340 , 342 (5th Cir. 1994). Plaintiff alleges that both the Parietex Com posite Mesh and the applicator were defective in com position and construction.26 Plaintiff’s allegation with respect to the applicator fails. Plaintiff alleges that the 26 R. Doc. 1-1 at 8 ¶¶ 26-29. 7 applicator “m alfunctioned” during his surgery, but he does not articulate with any specificity how the applicator failed. See Dendinger v. Covidien LP, No. 18-4168, 20 18 WL 4462579, at *2 (E.D. La. Sept. 18, 20 18) (dism issing the plaintiff’s com position defect allegations because the com plaint was “devoid of factual allegations as to how the products were unreasonably dangerous”). Plaintiff instead essentially recites the elem ents of his cause of action without explaining how the applicator was defective. This allegation is therefore dism issed. See Iqbal, 556 U.S. at 678. But plaintiff has stated a cause of action with respect to the Parietex Com posite Mesh. Plaintiff alleges that the m esh is defective because the polyester in the product is “weak” and “known to unravel,” which causes the “polyester fiber to detach and travel to other parts of the body.”27 Plaintiff also alleges that the m esh im planted into his abdom en m oved off of his hernia som etim e after his surgery. Dr. Rau allegedly inform ed plaintiff that im m ediately after surgery the m esh “covered the actual hernia,” but that afterward plaintiff “could have coughed or sneezed and m ade the m esh m ove further to the right.”28 Plaintiff further alleges that his hernia was protruding out of his intestine post-surgery as a result of the m esh’s failure to “be 27 28 Id. at 6-7 ¶ 18. Id. at 5-6 ¶ 13. 8 m aintained in its original position.”29 Viewing these allegations together and drawing all reasonable inferences in plaintiff’s favor, plaintiff adequately alleges (1) how the m esh is defective (i.e., the polyester is weak, which causes the m esh to detach and travel to other parts of the body), and (2) that this alleged defect caused his injury (i.e., the m esh m oved from its original position and allowed his hernia to protrude from his intestine). Plaintiff thus states a construction or com position defect claim . See Pierre v. Medtronic, Inc., No. 17-12196, 20 18 WL 1911829, at *3 (E.D. La. Apr. 23, 20 18) (allegation that the defendant failed to sterilize its m esh, which allegedly caused the plaintiff to suffer an infection, stated a com position defect claim ). Plaintiff does not explicitly state what the perform ance standards were for the Parietex Com posite Mesh. But by claim ing that the m esh is defective because it detaches from its original position and m oves to other parts of the body, plaintiff im plicitly states that the m esh deviated from defendants’ perform ance standards. According to the United States Food and Drug Adm inistration (FDA), non-absorbable surgical m esh like the Parietex Com posite Mesh “will rem ain in the body indefinitely and is considered a perm anent im plant.”30 In defendants’ prem arket notification of intent to 29 Id. at 6 ¶ 14. Hernia Surgical Mesh Im plants, U.S. FOOD & DRUG ADMIN . (Feb. 4, 20 18), https:/ / www.fda.gov/ m edical-devices/ im plants-and9 30 m arket the Parietex Com posite Mesh, they noted that the m esh “provides long term reinforcem ent of soft tissues.”31 Because the m esh is considered a “long term ” reinforcem ent, it follows that its perform ance standard is to rem ain in place on the patient’s hernia, and not m ove to other parts of the body. Lastly, as defendants point out, plaintiff’s com plaint also contains several allegations that appear to place blam e on his surgeon, Dr. Rau, rather than the m esh itself. Plaintiff states in his opposition that he has separately brought a m edical m alpractice suit against Dr. Rau, and that this case is a “com panion suit.”32 But allegations suggesting that Dr. Rau im properly placed the m esh during surgery are consistent with an assertion that the m esh’s defects were still a substantial factor in the m esh’s m ovem ent after plaintiff’s surgery, such that the m esh was both a cause-in-fact and the m ost probable cause of plaintiff’s injuries. See W heat, 31 F.3d at 342; W estchester Fire Ins. Co. v. Haspel-Kan. Inv. P’ship, 342 F.3d 416, 420 (5th Cir. 20 0 3) prosthetics/ hernia-surgical-m esh-im plants. As defendants point out, the Court m ay take judicial notice of publicly-available docum ents produced by the FDA. See Funk v. Stry ker Corp., 631 F.3d 777, 783 (5th Cir. 20 11). 31 510 (k) Sum m ary of Safety and Effectiveness, Parietex Com posite Mesh (April 19, 20 11), available at https:/ / www.accessdata.fda.gov/ cdrh_ docs/ pdf11/ K110 816.pdf. The Court m ay also take judicial notice of this docum ent. See Funk, 631 F.3d at 783. 32 R. Doc. 14 at 1. 10 (cause-in-fact determ ination under Louisiana law is whether the defendant’s actions were a “substantial factor in bringing about the harm ” to the plaintiff (citing Lasy one v. Kansas City S. R.R., 786 So. 2d 682, 691 (La. 20 0 1))). Plaintiff’s com plaint m ay not be artfully pleaded, but the Court m ust draw all reasonable inferences in plaintiff’s favor at this stage of the proceedings. Lorm and, 565 F.3d at 232. When doing so, the Court finds that plaintiff has stated a construction or com position defect claim under the LPLA, and denies defendants’ m otion to dism iss this claim . 2. Inadequate W arning To state an inadequate warning claim under the LPLA, a plaintiff m ust allege “(1) that the defendant failed to warn the physician of a risk associated with the use of the product, not otherwise known to the physician, and (2) that the failure to warn the physician was both a cause in fact and the proxim ate cause of plaintiff’s injury.” W illet v. Baxtern Int’l, Inc., 929 F.2d 10 94, 10 98-99 (5th Cir. 1991). The plaintiff m ust state that “a proper warning would have changed the decision of the treating physician, i.e., that but for the inadequate warning, the treating physician would not have used or prescribed the product.” Id. at 10 99; see also Stahl, 283 F.3d at 265 (noting that Louisiana follows the “learn ed interm ediary doctrine,” in which 11 a m anufacturer need only warn the patient’s physician, not the patient him self, of the device’s potential harm ). Plaintiff alleges that defendants “knew or should have known of the defective nature” of the Parietex Com posite Mesh and the applicator, but did “not adequately warn[] the FDA, the general public, the m edical com m unity, or plaintiff” of these defects.33 Plaintiff’s claim fails because he does nothing m ore than recite the elem ents of his cause of action. See Iqbal, 556 U.S. at 678. He does not allege how defendants’ alleged failure to warn specifically caused his injuries—i.e., facts showing that a “proper warning would have changed the decision of the treating physician.” W illet, 929 F.2d 10 99; Hargrove v. Bos. Scientific Corp., No. 13-3539, 20 14 WL 4794763, at *11 (E.D. La. Sept. 24, 20 14) (the plaintiffs’ conclusory allegations failed to assert how the alleged inadequate warning caused their injuries). Plaintiff’s inadequate warning claim m ust therefore be dism issed. 3. Design Defect To establish the elem ents for a design defect claim , a plaintiff m ust allege that: (1) There existed an alternative design for the product that was capable of preventing the claim ant’s dam age; and 33 R. Doc. 1-1 at 7 ¶ 23. 12 (2) The likelihood that the product’s design would cause the claim ant’s dam age and the gravity of that dam age outweighed the burden on the m anufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. La. R.S. 9:280 0 .56. Plaintiff’s design defect claim applies to the Parietex Com posite Mesh only, not the applicator.34 Plaintiff alleges that the Parietex Com posite Mesh is defective because it “breaks down after com ing in contact with m oisture and tears easily during handling.”35 He further alleges that the polyester fabric on the m esh is known to “detach and travel to other parts of the body inciting an inflam m atory response.”36 These allegations m ay assert a defect with the product, but plaintiff does not allege with enough specificity that there existed an alternative design of the m esh that could have prevented his injuries. Plaintiff only obliquely alleges that defendants “knew or should have known that Parietex Com posite Mesh was considerably m ore harm ful and inadequate than other m eshes or m ethods for hernia repair.”37 But this allegation does not specifically identify any alternative design. The Court therefore dism isses plaintiff’s design defect claim . See Iqbal, 556 U.S. at 678; 34 35 36 37 Id. at 9 ¶¶ 32-33. Id. at 6-7 ¶ 18. Id. Id. at 7 ¶ 22. 13 Dendinger, 20 18 WL 4462579, at *2 (dism issing design defect claim for the plaintiff’s failure to adequately explain what alternative design existed at the tim e of his surgery). 4. Breach of Express W arranty Under the LPLA, a m anufacturer of a product that is unreasonably dangerous because it does not conform to an express warranty about the product is liable for dam ages caused by that non-conform ity. La. R.S. 9:280 0 .58. To establish a breach of express warranty claim , a plaintiff m ust show that (1) there was an express warranty m ade by the m anufacturer about the product; (2) the express warranty induced the plaintiff to use the product; and (3) the plaintiff’s dam age was proxim ately caused because the express warranty was untrue. Id.; see also Caboni v. Gen. Motors Corp., 278 F.3d 448, 452 (5th Cir. 20 0 2). The LPLA defines “express warranty” as “a representation, statem ent of alleged fact or prom ise about a product . . . that represents, affirm s or prom ises that the product . . . possesses specified characteristics or qualities or will m eet a specified level of perform ance.” La. R. S. 9:280 0 .53(6). The statute adds that “general opinion[s]” or “general praise” of a product do not qualify as express warranties. Id. 14 Plaintiff alleges that defendants m isrepresented the applicator and m esh as “safe and effective treatm ent[s] for hernias.”38 This allegation is not enough to claim a breach of express warranty under the LPLA. Num erous courts have found that a general allegation that defendants m arketed their product as “safe” or “effective” is not sufficient to state this claim . See, e.g., Doe v. AstraZeneca Pharm ., LP, No. 15-438, 20 15 WL 4661814, at *4 (E.D. La. Aug. 5, 20 15) (plaintiff’s allegation that defendant represented to the m arket that defendant’s product was “safe” and “effective” did not satisfy pleading standard); Flournoy v. Johnson & Johnson, No. 15-50 0 0 , 20 16 WL 6474142, at *3 (E.D. La. Nov. 2, 20 16) (plaintiff’s breach of warranty claim dism issed for failing to sufficiently “identify the contents of any warranty”). Plaintiff’s claim also fails because he does not allege how any warranty induced him to use the applicator or m esh, or how his injury was caused by defendants’ allegedly untrue warranty. See Flournoy , 20 16 WL 6474142, at *3. Plaintiff’s express warranty claim is therefore dism issed. C. Re d h ibitio n As already m entioned, the LPLA “establishes the exclusive theories of liability for m anufacturers for dam age caused by their products.” La. R.S. 9:280 0 .52. But redhibition rem ains available against a m anufacturer to 38 Id. ¶ 21. 15 recover econom ic loss. See Pipitone v. Biom atrix, Inc., 288 F.3d 239, 251 (5th Cir. 20 12) (“Courts have interpreted the LPLA as preserving redhibition as a cause of action only to the extent the claim ant seeks to recover the value of the product or other econom ic loss.”). A plaintiff suing in redhibition m ust prove that “(1) the thing sold is absolutely useless for its intended purposes[,] or that its use is so inconvenient that it m ust be supposed that he would not have bought it had he known of the defect; [and] (2) that the defect existed at the tim e he purchased the thing, but was neither known [n]or apparent to him . . . . ” Alston v. Fleetw ood Motor Hom es of Ind., 480 F.3d 695, 699 (5th Cir. 20 0 7) (citing Dalm e v. Blockers Mfd. Hom es, Inc., 779 So. 2d 10 14, 10 28 (La. App. 3 Cir. 20 0 1)). Plaintiff’s redhibition claim m ust be dism issed for two reasons. First, he does not allege that he has suffered any econom ic loss in connection with the m esh or applicator. Plaintiff does not state that he directly purchased the m esh or applicator, or whether the cost for the products was passed along to him in his m edical expenses. Because plaintiff can only recover his econom ic losses in connection with the products’ alleged defects, his failure to allege any econom ic loss doom s his claim . Second, plaintiff does not assert anywhere in his com plaint that had he known of the products’ defects, he would not have “purchased” them . Cf. Flournoy , 20 16 WL 6474142, at *5 16 (plaintiff’s allegation that had she “been aware of the defects contained in the subject im plant devices, she would not have purchased or allowed im planting said im plant devices,” coupled with an allegation that the devices were defective, was “m inim ally sufficient” to state a redhibition claim ). Because plaintiff has not asserted all of the elem ents of a redhibition claim , the Court dism isses the claim . D. Le ave to Am e n d Lastly, plaintiff requests leave to am end his com plaint in the event the Court finds that he has failed to allege his claim s with the specificity Iqbal and Tw om by require.39 The Court will “freely give leave [to am end] when justice so requires.” Fed. R. Civ. P. 15(a). The Suprem e Court has held that “[i]f the underlying facts or circum stances relied upon by a plaintiff m ay be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the m erits.” Fom an v. Davis, 371 U.S. 178, 182 (1962). But leave to am end “is by no m eans autom atic.” Halbert v. City of Sherm an, 33 F.3d 526, 529 (5th Cir. 1994). The Court considers m ultiple factors, including “undue delay, bad faith or dilatory m otive on the part of the m ovant, repeated failure to cure deficiencies by am endm ents previously allowed, undue prejudice to 39 R. Doc. 14 at 10 . 17 the opposing party by virtue of allowance of the am endm ent, [and] futility of am endm ent.” Fom an, 371 U.S. at 182. Plaintiff is denied leave to am end his claim s for negligence, breach of warranty of fitness for ordinary use, or breach of im plied warranty of m erchantability and fitness, because any am endm ent of those claim s would be futile. See Dendinger, 20 18 WL 4462579, at *1 (in a suit against a m anufacturer, dism issing state law negligence claim with prejudice). These claim s are therefore dism issed with prejudice. But the Court finds that none of the Rule 15 factors m ilitates against granting leave to am end his other claim s that the Court dism isses in this order. Those claim s are therefore dism issed without prejudice. Plaintiff m ust file any am ended com plaint within twenty-one (21) days of the entry of this order. IV. CON CLU SION For the foregoing reasons, defendants’ m otion to dism iss is GRANTED IN PART and DENIED IN PART. Plaintiff’s inadequate warning, design defect, breach of express warranty, and redhibition claim s are DISMISSED WITHOUT PREJ UDICE. Plaintiff’s claim s for negligence, breach of warranty of fitness for ordinary use, and breach of im plied warranty of 18 m erchantability and fitness, are DISMISSED WITH PREJ UDICE. The Court denies defendants’ m otion to dism iss plaintiff’s construction or com position defect claim . Any am ended com plaint m ust be filed within twenty-one (21) days of the entry of this order. New Orleans, Louisiana, this _17th _ _ _ _ day of May, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 19
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