Cavender v. Medtronic, Inc.

MIRIAM CAVENDER, Plaintiff, v. MEDTRONIC, INC., Defendant.

Case No. 3:16-CV-232

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

April 14, 2017

OPINION AND ORDER

This matter is before the Court on the motion to dismiss and memorandum in support filed by Defendant Medtronic, Inc. (docket entries 21 and 22). Plaintiff Miriam Cavender filed a response in opposition (DE 23) and Medtronic filed a reply (DE 26). For the reasons discussed in this order, the motion is DENIED. The Plaintiff's claims for negligence, negligence per se, and breach of express and implied warranties are SUBSUMED by the Indiana Product Liability Act claim and merged into a cause of action under that statute for manufacturing defect, design defect and failure to warn; the motion is DENIED as to the issue of federal preemption. This case will proceed on Plaintiff Miriam Cavender's cause of action under the IPLA.

BACKGROUND

Plaintiff Miriam Cavender had health problems that required surgical implant of a cardiac defibrillator. Her doctors implanted a defibrillator that was manufactured by Medtronic. Cavender alleged that the product "malfunctioned causing . . . Cavender to become [severely] injured as a direct and proximate result of the defective product and hazardous condition of said product." Original Complaint (DE 4), p. 2.¹ She filed this lawsuit on March 24, 2016, assertingstrict product liability, breach of warranty, and negligence claims against Medtronic. Id. Medtronic filed a motion to dismiss Cavender's original Complaint in its entirety on May 31, 2016 (DE 9). The Court issued an Opinion and Order (DE 19), Cavender v. Medtronic, Inc., 2016 WL 6599744 (N.D.Ind. Nov. 8, 2016), concluding that "Cavender's complaint is woefully insufficient under the Rule 12(b)(6) pleading standard and dismissal is warranted[.]" (id., p. 4) but that Cavender should be afforded the opportunity to file an amended complaint "in which she shall plead her product liability claims pursuant to the IPLA (to include only claims for manufacturing defect, design defect, or failure to warn) and present facts and clearly articulated legal theories to support any additional claims she contends are valid (be they breach of warranty or violation of FDA or other federal regulation)." Id., p. 23. The Court then ruled as follows:

1) Plaintiff Miriam Cavender's common law negligence claim is DISMISSED WITH PREJUDICE;

2) Plaintiff's product liability claims and UCC breach of warranty claims are DISMISSED WITHOUT PREJUDICE; and

3) Plaintiff is ordered to file an amended complaint within 30 days of the date of this Opinion and Order, in which she shall plead her product liability claims pursuant to the Indiana Product Liability Act ("IPLA") (to include only claims for manufacturing defect, design defect, or failure to warn), and present facts and clearly articulated legal theories to support any additional claims she contends are valid (be they breach of warranty or violation of FDA regulations). Medtronic is directed to file an answer to plaintiff's amended complaint (or a second motion to dismiss should Defendant conclude that one is necessary) within 30 days from the date of the filing of Plaintiff's amended complaint.

Court's Opinion and Order (DE 19); Cavender, 2016 WL 6599744. Cavender filed her Amended Complaint on December 7, 2016 (DE 20). The Amended Complaint, according to Cavender,presents her claims properly and corrects the defects in her original Complaint that the Court identified in its previous order. Not so, contends Medtronic, which filed its renewed motion to dismiss the Amended Complaint. Medtronic contends that the arguments it presented in favor of dismissal the first time are still valid and that Cavender's Amended Complaint, like her original one, fails to state a valid claim and must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Medtronic states that "[t]his Court's dismissal order gave Plaintiff a clear mandate: present plausible facts and clearly articulated legal theories. The Amended Complaint . . . does neither." Defendant's Memorandum in Support of Motion to Dismiss (DE 22), p. 1.

STANDARD OF REVIEW

Rule 12(b)(6) allows a defendant to move to dismiss a complaint that has fails to "state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). When deciding a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual allegations in the complaint and draws all inferences in favor of the plaintiff. Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008). The complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, the Supreme Court explained that the complaint must allege facts that are "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. 544, 555 (2007). Stated differently, the complaint must include "enough facts to state a claim to relief that is plausible on its face." Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (internal citation and quotation marks omitted). To be facially plausible, the complaint must allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

DISCUSSION

Even though the Court determined that it could not resolve the issues raised in Medtronic's first motion to dismiss since Cavender's original Complaint was too vague, the Court proceeded to "address the legal arguments presented in the motion to dismiss, even though most of them cannot be resolved at this point, in order to provide what the Court hopes will be a framework for streamlining the presentation of Cavender's claims, whatever they may be, and Medtronic's defenses." Cavender, 2017 WL 6599744 at * 2. In response to that order, Cavender filed a 31-page Amended Complaint (her original Complaint consisted of four pages) in which she asserts four claims against Medtronic. Cavender's first claim, which she titled "First Claim for Relief (Product Liability)," seeks relief under the Indiana Products Liability Act, based on allegations of strict liability, manufacturing defect, design defect, and failure to warn. Amended Complaint, pp. 23-25. Her "Second Claim for Relief (Breach of Implied and Express Warranties)" asserts claims under the Uniform Commercial Code. Id., pp. 25-27. Her "Third Claim for Relief (Negligence)" asserts an Indiana common law negligence claim (id., pp. 27-28). And her "Fourth Claim for Relief (Negligence per se)" includes a claim for negligence per se that she contends is distinct from her traditional negligence claim because it is based on alleged violations of federal regulations (id., pp. 28-29).

Medtronic's present motion to dismiss raises exactly the same issues and incorporates the same arguments as its original motion, and Cavender's Amended Complaint and her brief in opposition to the motion do likewise. The only thing that has changed is that Cavender filed a much longer, more detailed complaint the second time around. The Amended Complaint still includes all the same claims Cavender attempted to present in her original Complaint, althoughthey are dressed in much more elaborate apparel (as Medtronic is quick to point out). In its original motion to dismiss, Medtronic characterized Cavender's original Complaint as "a scattershot" of claims-a characterization this Court concluded was accurate. Cavender, 2017 WL 6599744 at *3. Cavender's Amended Complaint does not take a similar scattershot approach, seeing as it organizes her claims neatly and provides an abundance of specific factual allegations that were conspicuously (even fatally) absent from her first attempt. That said, the Amended Complaint still takes the proverbial "kitchen sink" or "throw it all against the wall" approach. This is evidenced by the fact that the Amended Complaint still includes claims that this Court already dismissed the first time around, as well as claims with doubtful legal foundation (as in her breach of warranty claims), all of which were discussed at some length in the Court's previous order. On the other hand, Cavender's Amended Complaint sets forth her claims with much more specificity, both in terms of factual assertions and legal theories, which is a huge improvement over her original Complaint, and so the Court can turn to assessing the sufficiency of those claims in light of the motion to dismiss.

Before turning to the dispositive issues the Court must clear away some dust. In its memorandum in support of its motion, Medtronic begins by attacking Cavender's Amended Complaint for two reasons: first, because it "now alleges that a different Medtronic device, the Sprint Fidelis 6949 Lead, injured her[,]" whereas her original Complaint stated that her injuries were caused by a Medtronic "Viva XT CRT-D Defibrillator[,]" (Defendant's Memorandum, pp. 2-3); and second, because it "mirrors the Master Consolidated Complaint relating to the Leads that has already been fully litigated and dismissed-with prejudice at the pleading stage." Id., p. 4 (citing In re Medtronic, Inc. Sprint Fidelis Leads Prods. Liab. Litig., 592 F.Supp.2d 1147(D.Minn. 2009))² (emphasis in original). Medtronic attached to its memorandum a copy of the Master Complaint filed in the multidistrict Medtronic Leads litigation (more on that below) and notes that Cavender's Amended Complaint is a "copy and paste" version of it. See, e.g., Defendant's Memorandum, pp. 4-5 (comparing language in Master Complaint to language in Cavender's Amended Complaint). Both of Medtronic's contentions are correct but ultimately not relevant. They are included for the purpose of casting aspersions on Cavender's Amended Complaint by drawing attention to what this Court has already referred to as Cavender's elaborate window dressing of her claims. In other words, while the...