Butler et al v. Johnson & Johnson, et al, No. 4:2020cv05137 - Document 25 (E.D. Wash. 2021)
Court Description: ORDER GRANTING 11 DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT. Plaintiffs' Complaint, ECF No. 1 , is DISMISSED WITHOUT PREJUDICE. Plaintiffs may file an amended complaint by no later than 30 days from the date of this Order. Signed by Judge Salvador Mendoza, Jr. (LTR, Case Administrator)
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Butler et al v. Johnson & Johnson, et al Doc. 25 Case 4:20-cv-05137-SMJ ECF No. 25 filed 03/25/21 PageID.205 Page 1 of 8 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Mar 25, 2021 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 SEAN F. MCAVOY, CLERK 4 5 VIKKI LYNNE BUTLER and JAMES ALAN BUTLER, Plaintiffs, 6 7 8 v. No. 4:20-cv-05137-SMJ ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT ETHICON, INC., and JOHNSON & JOHNSON, 9 Defendants. 10 11 Before the Court, without oral argument, is Defendants’ Motion to Dismiss 12 Plaintiff’s Complaint, ECF No. 11. For the reasons that follow, the Court grants 13 Defendants’ motion and dismisses Plaintiffs’ Complaint with leave to amend. 14 Plaintiffs’ Complaint alleges that Plaintiff Vikki Lynne Butler was implanted 15 with Ethicon, Inc.’s Prolift and TVT-O prescription pelvic mesh medical devices 16 for treatment of her stress urinary incontinence. ECF No. 1 at ¶¶ 19–21. Plaintiff 17 also claims she underwent a revision surgery and sustained injuries resulting from 18 her treatment with TVT-O and Prolift. Id. at ¶¶ 23–26. Plaintiffs’ Complaint 19 contains two causes of action against Defendants Johnson & Johnson and Ethicon, 20 Inc. (collectively, “Defendants”): (1) allegations under the Washington Product ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT – 1 Dockets.Justia.com Case 4:20-cv-05137-SMJ ECF No. 25 filed 03/25/21 PageID.206 Page 2 of 8 1 Liability Act (“WPLA”), and (2) violation of the Washington Consumer Protection 2 Act (“WCPA”). Id. at Sections 6, 7. Plaintiffs also seek loss of consortium damages 3 and punitive damages. Id. at ¶¶ 67–75. 4 Defendants move to dismiss Plaintiffs’ Complaint under Federal Rules of 5 Civil Procedure 8, 9(b), and 12(b)(6), arguing (1) the Complaint contains 6 impermissible shotgun pleadings, (2) the WPLA and the WCPA claims fail to 7 satisfy the Iqbal/Twombly federal pleading standard, (3) the WCPA claim is not 8 cognizable where, as here, Plaintiffs seek to recover damages for personal injury, 9 and (4) the loss of consortium claim cannot survive because Plaintiffs’ underlying 10 claims fail. ECF No. 11 at 3. Defendants also argue this Court should follow its 11 decision in Hernandez v. Johnson & Johnson, No. 4:20-CV-05136-SMJ, 2021 WL 12 320612 (E.D. Wash. Jan. 8, 2021). See generally ECF No. 23. 13 Having reviewed the pleadings and file in this matter, as well as the relevant 14 case law and this Court’s decision in Hernandez, the Court finds the complaint in 15 Hernandez practically indistinguishable from the Complaint at issue here. 16 Accordingly, this Court dismisses the Plaintiffs’ Complaint for the same reasons 17 already set forth in Hernandez. Like Hernandez, the Court cannot characterize the 18 Complaint here as a shotgun pleading and so it does not dismiss the Complaint on 19 that basis. See Hernandez, 2021 WL 320612, at *2. Still, as in Hernandez, 20 Plaintiffs’ WPLA claim fails to plausibly state a claim upon which relief can be ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT – 2 Case 4:20-cv-05137-SMJ ECF No. 25 filed 03/25/21 PageID.207 Page 3 of 8 1 granted. See id. at *2–5. And although Plaintiffs’ WCPA claim states a claim under 2 the Twombly and Iqbal standard, it fails to satisfy the heightened pleading standard 3 under Federal Rule of Civil Procedure 9(b). See id. at *5–6. Despite these 4 deficiencies, Plaintiffs may save their Complaint through amendment and thus the 5 Court grants Plaintiffs an opportunity to amend their Complaint. See id. at *6–7. 6 That said, the Complaint in this case differs from Hernandez in one respect: 7 It alleges loss of consortium. Accordingly, the Court must address whether that 8 additional claim survives Defendants’ motion to dismiss. It does not. LEGAL FRAMEWORK 9 10 A. Motion to Dismiss 11 Under Rule 12(b)(6), the Court must dismiss a complaint if it “fail[s] to state 12 a claim upon which relief can be granted,” including when the plaintiff’s claims 13 either fail to allege a cognizable legal theory or fail to allege sufficient facts to 14 support a cognizable legal theory. Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 15 (9th Cir. 2017). To survive a Rule 12(b)(6) motion, a complaint must contain 16 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 17 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 18 Twombly, 550 U.S. 544, 570 (2007)). 19 Facial plausibility exists when a complaint pleads facts permitting a 20 reasonable inference that the defendant is liable to the plaintiff for the misconduct ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT – 3 Case 4:20-cv-05137-SMJ ECF No. 25 filed 03/25/21 PageID.208 Page 4 of 8 1 alleged. Iqbal, 556 U.S. at 678. Plausibility does not require probability but 2 demands something more than a mere possibility of liability. Id. Although the 3 plaintiff need not make “detailed factual allegations,” “unadorned” accusations of 4 unlawful harm and “formulaic” or “threadbare recitals” of a claim’s elements, 5 supported only “by mere conclusory statements,” are insufficient. Id. 6 In deciding a Rule 12(b)(6) motion, the Court construes a complaint in the 7 light most favorable to the plaintiff, assumes the facts as pleaded are true, and draws 8 all reasonable inferences in his or her favor. Ass’n for L.A. Deputy Sheriffs v. County 9 of Los Angeles, 648 F.3d 986, 991 (9th Cir. 2011); Iqbal, 556 U.S. at 678. Even so, 10 the Court may disregard legal conclusions couched as factual allegations. See id. 11 B. Washington Substantive Law Applies 12 No party disputes that Washington State law applies to Plaintiff’s substantive 13 claims, and this Court agrees it must look to Washington’s choice of law rules to 14 determine the controlling substantive law. See Klaxon Co. v. Stentor Elec. Mfg. Co., 15 313 U.S. 487, 496 (1941) (holding that courts must apply the choice of law rules in 16 the forum state). 17 Absent an actual conflict between the laws and interests of Washington and 18 the laws and interests of another state, Washington law presumptively applies. 19 Erwin v. Cotter Health Ctrs., Inc., 167 P.3d 1112, 1120 (Wash. 2007). If an actual 20 conflict exists, the state with the “most significant relationship” supplies the ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT – 4 Case 4:20-cv-05137-SMJ ECF No. 25 filed 03/25/21 PageID.209 Page 5 of 8 1 controlling law. Id. Plaintiff is a resident of Washington, and her revision surgery 2 occurred in Washington. Accordingly, Washington has the most significant 3 relationship. 4 C. 5 6 7 8 Loss of Consortium Defendants argue Plaintiffs failed to plead sufficient facts to support their loss of consortium claim. ECF No. 23 at 9–10. This Court agrees. Plaintiffs make the following allegations with respect to their loss of consortium claim: 16 VIII. LOSS OF CONSORTIUM 67. Plaintiffs incorporate by reference all other paragraphs of this Complaint as if fully set forth herein, and further allege: 68. Plaintiff JAMES ALAN BUTLER, at all times relevant, was and is the lawful husband of Plaintiff VIKKI LYNNE BUTLER. 69. As a direct, legal, and proximate result of the culpability and fault of Defendants, Plaintiff JAMES ALAN BUTLER suffered the loss of support, services, love, companionship, affection, society, intimate relations, and other elements of consortium, all to his general damage in an amount in excess of the jurisdictional minimum of this Court. 70. Plaintiffs demand judgment against Defendants for compensatory and punitive damages such as a jury may award, and such other relief as the Court deems just and proper in order to remedy Plaintiff JAMES ALAN BUTLER’s loss of consortium. 17 ECF No. 1 at 15–16. Yet the claim for loss of consortium alleges only one fact: That 18 Mr. Butler is Ms. Butler’s husband. See id. ¶ 68. Paragraph 69 is merely a 19 conclusory statement. See id. And Paragraph 70 simply sets forth Plaintiffs’ 20 requested remedy of compensatory and punitive damages. See id. 9 10 11 12 13 14 15 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT – 5 Case 4:20-cv-05137-SMJ ECF No. 25 filed 03/25/21 PageID.210 Page 6 of 8 1 In its response, Plaintiffs point this Court to March v. Ethicon, Inc., 2020 WL 2 6132212, at *6 (W.D. Wash. Oct. 19, 2020), arguing that because the court there 3 denied summary judgment (finding a genuine dispute of material fact existed), this 4 Court cannot dismiss Plaintiffs claims here before discovery of the facts. ECF No. 5 22 at 20. But this argument puts the cart before the horse. “Rule 8 . . . does not 6 unlock the doors of discovery for a plaintiff armed with nothing more than 7 conclusions.” Iqbal, 556 U.S. at 678–79. This Court agrees with Defendants that 8 Plaintiffs’ reliance on March is misplaced. See ECF No. 23 at 9–10. It also agrees 9 that Bates v. State Farm Mut. Auto. Ins. Co., No. C14-1557JLR, 2015 WL 10 11714360, at *4 (W.D. Wash. Oct. 19, 2015) is analogous to the situation here. 11 In Bates, the court determined, “[a]lthough a loss of consortium claim 12 depends on an underlying injury to the plaintiff’s spouse, loss of consortium is a 13 separate and independent claim, and therefore must be plausibly pleaded in the 14 complaint.” Id. (citations omitted). There, plaintiffs’ complaint alleged no facts 15 concerning Mr. Bates’ losses. Id. It alleged only that Mr. Bates was Ms. Bates’ 16 husband. Id. The court ruled those allegations did not plead factual content 17 sufficient to permit the court to draw the reasonable inference that Mr. Bates 18 suffered loss of consortium, and it dismissed plaintiffs’ loss of consortium claim. 19 Id. (citing Iqbal, 556 U.S. at 663). 20 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT – 6 Case 4:20-cv-05137-SMJ ECF No. 25 filed 03/25/21 PageID.211 Page 7 of 8 1 The Complaint at issue here is like the complaint in Bates. Plaintiffs’ 2 Complaint merely alleges Mr. Butler is Ms. Butler’s husband, and it alleges no facts 3 concerning Mr. Butler’s losses. This Court thus concludes Plaintiffs have not 4 pleaded factual content sufficient to support their loss of consortium claim and thus 5 dismisses Plaintiffs’ loss of consortium claim. 6 Accordingly, IT IS HEREBY ORDERED: 7 1. Defendants’ Motion to Dismiss Plaintiff’s Complaint, ECF No. 11, is GRANTED. 8 2. 9 Plaintiffs’ Complaint, ECF No. 1, is DISMISSED WITHOUT PREJUDICE. 10 3. 11 Plaintiffs may file an amended complaint by no later than 30 days 12 from the date of this Order. 13 A. If Plaintiffs do not file an amended complaint by that date, the 14 Court will instruct the Clerk’s Office to enter judgment 15 dismissing this action without prejudice and closing the file. 16 // 17 // 18 // 19 // 20 // ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT – 7 Case 4:20-cv-05137-SMJ 1 B. ECF No. 25 filed 03/25/21 PageID.212 Page 8 of 8 If Plaintiffs file an amended complaint, Defendants shall file a 2 responsive pleading in accordance with the Federal and Local 3 Civil Rules. 4 5 6 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 25th day of March 2021. 7 8 __________________________ SALVADOR MENDOZA, JR. United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT – 8
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