Evans v. Wright Med. Tech., Inc.

436 F.Supp.3d 1207

Nelson EVANS, Jr. Plaintiff,

v.WRIGHT MEDICAL TECHNOLOGY, INC., Defendant.

No. C19-55-LTS

United States District Court, N.D. Iowa, Cedar Rapids Division.

Signed January 31, 2020

William P. Baresel, Prichard Law Office, P.C., Charles City, IA, Danae N. Benton, Pro Hac Vice, Sindhu Daniel, Pro Hac Vice, Baron & Budd PC, Dallas, TX, for Plaintiff.

Sean Kenneth Burke, Pro Hac Vice, Drew T. Dorner, Pro Hac Vice, Duane Morris LLP, Washington, DC, Gregory M. Lederer, Lederer Weston Craig PLC, Cedar Rapids, IA, for Defendant.

MEMORANDUM OPINION AND ORDER ON DEFENDANT'S PARTIAL MOTION TO DISMISS

Leonard T. Strand, Chief Judge

I. INTRODUCTION

This medical products liability case is before me on a partial motion (Doc. No. 21) to dismiss by defendant Wright Medical Technology, Inc. (WMT). WMT seeks to dismiss Counts 4 and 5 of the first amended complaint, along with plaintiff's claim for punitive damages. Plaintiff Nelson Evans, Jr., has filed a resistance (Doc. No. 31). I find that oral argument is not necessary. See Local Rule 7(c).

II. BACKGROUND

Evans filed his complaint on May 4, 2019, and a first amended complaint (Doc. No. 13) on August 23, 2019. He alleges that on November 29, 2004, he received a hip replacement using WMT's Total Hip System and had to undergo a revision surgery on May 4, 2017, to replace the faulty system. Doc. No. 13 at 2-3. He asserts claims of failure to warn, negligence, negligent misrepresentation, breach of express warranty, breach of implied warranty of fitness for a particular purpose and implied warranty for merchantability. He requests various forms of relief, including compensatory damages and punitive damages.

WMT argues that Count 4 (Negligent Misrepresentation) fails on a legal basis and that Count 5 (Breach of Express Warranty) is barred by the statute of limitations. Thus, the specific factual allegations related to those counts are not particularly relevant. WMT does argue, however, that Evans' allegations are insufficient to state a claim for punitive damages. The specific allegations related to Evans' punitive damages claim will be discussed in greater detail in that section.

III. APPLICABLE STANDARDS

The Federal Rules of Civil Procedure authorize a pre-answer motion to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The Supreme Court has provided the following guidance in considering whether a pleading properly states a claim:

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in [ Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007) ], the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id. , at 555, 127 S. Ct. 1955 (citing Papasan v. Allain , 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L.Ed.2d 209 (1986) ). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." 550 U.S. at 555, 127 S. Ct. 1955. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. , at 557, 127 S. Ct. 1955.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id. , at 570, 127 S. Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. , at 556, 127 S. Ct. 1955. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of ‘entitlement to relief.’ " Id. at 557, 127 S. Ct. 1955 (brackets omitted).

Ashcroft v. Iqbal , 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Courts assess "plausibility" by " ‘draw[ing] on [their own] judicial experience and common sense.’ " Whitney v. Guys, Inc. , 700 F.3d 1118, 1128 (8th Cir. 2012) (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ). Also, courts " ‘review the plausibility of the plaintiff's claim as a whole, not the plausibility of each individual allegation.’ " Id. (quoting Zoltek Corp. v. Structural Polymer Grp. , 592 F.3d 893, 896 n.4 (8th Cir. 2010) ). While factual "plausibility" is typically the focus of a Rule 12(b)(6) motion to dismiss, federal courts may dismiss a claim that lacks a cognizable legal theory. See, e.g. , Somers v. Apple, Inc. , 729 F.3d 953, 959 (9th Cir. 2013) ; Ball v. Famiglio , 726 F.3d 448, 469 (3d Cir. 2013) ; Commonwealth Prop. Advocates, L.L.C. v. Mortg. Elec. Registration Sys., Inc. , 680 F.3d 1194, 1202 (10th Cir. 2011) ; accord Target Training Intern., Ltd. v. Lee , 1 F. Supp. 3d 927 (N.D. Iowa 2014).

In considering a Rule 12(b)(6) motion to dismiss, ordinarily the court "cannot consider matters outside the pleadings without converting the motion into a motion for summary judgment." McMahon v. Transamerica Life Ins. , No. C17-149-LTS, 2018 WL 3381406, at *2 n.2 (N.D. Iowa July 11, 2018) ; see Fed. R. Civ. P. 12(b)(6). On the other hand, when a copy of a "written instrument" is attached to a pleading, it is considered "a part of the pleading for all purposes," pursuant to Federal Rule of Civil Procedure 10(c). Thus, when the pleadings necessarily embrace certain documents, I may consider those documents without turning a motion to dismiss into a motion for summary judgment. Id. These documents include "exhibits attached to the complaint." Mattes v. ABC Plastics, Inc. , 323 F.3d 695, 697 n.4 (8th Cir. 2003).

When a complaint does not state a claim for relief that is plausible on its face, the court must consider whether it is appropriate to grant the pleader an opportunity to replead. The rules of procedure permit a party to respond to a motion to dismiss by amending the challenged pleading "as a matter of course" within 21 days. See Fed. R. Civ. P. 15(a)(1)(B). Thus, when a motion to dismiss highlights deficiencies in a pleading that can be cured by amendment, the pleader has an automatic opportunity to do so. When the pleader fails to take advantage of this opportunity, the question of whether to permit an amendment depends on considerations that include:

whether the pleader chose to stand on its original pleadings in the face of a motion to dismiss that identified the very deficiency upon which the court dismissed the complaint; reluctance to allow a pleader to change legal theories after a prior dismissal; whether the post-dismissal amendment suffers from the same legal or other deficiencies as the dismissed pleading; and whether the post-dismissal amendment is otherwise futile.

Meighan v. TransGuard Ins. Co. of Am. , 978 F. Supp. 2d 974, 982 (N.D. Iowa 2013).

IV. ANALYSIS

A. Count 4 – Negligent Misrepresentation

WMT argues this claim fails because there are no allegations that WMT is in the business of supplying information to others – a necessary element under Iowa law.¹ See Doc. No. 21-1 at 5. Evans alleges that WMT "was engaged in the business of designing, licensing, manufacturing, distributing, selling, marketing, and/or introducing into interstate commerce, either directly or indirectly through third parties or related entities, numerous prosthetic orthopedic products, including the Wright Total Hip System." Doc. No. 13 at 4.

Evans argues the Iowa Supreme Court expanded its view of negligent misrepresentation in Dinsdale Const., LLC v. Lumber Specialties, Ltd. , 888 N.W.2d 644, 651 (Iowa 2016). He contends the Court established that negligent misrepresentation can be applied "beyond persons in the course of their business or profession of supplying information" to others who have "a pecuniary interest in supplying the information." Doc. No. 31 at 6 (citing Dinsdale Constr., LLC , 888 N.W.2d at 651 ). Evans argues that WMT meets with physicians and provides false information about its devices in pursuit of its pecuniary interest. He further alleges that WMT publishes guides on its website and product brochures containing inaccurate and misleading information about the safety and efficacy of its products and also makes misrepresentations in its marketing, advertisements, promotions and labeling. Id. at 7.

"[T]he tort of negligent misrepresentation does not apply to sellers of products but rather is limited to those in the business or profession of supplying information for the guidance of others." Huck v. Wyeth, Inc. , 850 N.W.2d 353, 371 (Iowa 2014). Those in the business of supplying information include professionals such as "accountants, appraisers, school guidance counselors and investment brokers." Id. (citing Pitts v. Farm Bureau Life Ins. Co. , 818 N.W.2d 91, 111-12 (Iowa 2012). The Court in Dinsdale explained:

In our effort to distinguish those circumstances when a person has a duty to use reasonable care in supplying information from those circumstances when there is no duty, we have articulated various considerations derived from the framework of the Restatement rule. We seek to distinguish advisory relationships from relationships that are adversarial and at arm's length. SeePitts v. Farm Bureau Life Ins. Co. , 818 N.W.2d 91, 111 (Iowa 2012). We seek to distinguish the sale of information as a product from information given incidentally as part of another transaction. Id. at 112. We distinguish professional purveyors of information from those who work in another capacity. Id. Finally, we seek to capture the concept of foreseeability within those circumstances that impose a duty of care. Id. at 111-12.

These considerations are principles of law that help

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