Greenwood v. Arthrex, Inc.

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LESLIE M. GREENWOOD, Plaintiff, v. ARTHREX, INC., TE CONNECTIVITY CORPORATION f/k/a HEAT SHRINK INNOVATIONS, LLC, and PRECISON EDGE SURGICAL PRODUCTS COMPANY, LLC, Defendants.

No. 21-CV-1101S

United States District Court, W.D. New York

May 19, 2023

DECISION AND ORDER

WILLIAM M. SKRETNY, United States District Judge

I. Introduction

This is a removed diversity action wherein Plaintiff Leslie Greenwood alleges product liability against Defendant Arthrex, Inc. (“Arthrex”), a medical device manufacturer. Arthrex produced the “Arthrex Burr,” a medical device that purportedly burned Plaintiff during her October 2018 surgery.

Plaintiff amended her Complaint multiple times (Docket Nos. 13, 46, 49) following Motions to Dismiss or for Judgment on the Pleadings by Defendants (Docket Nos. 18, 20, 37), see Greenwood v Arthrex, Inc., No. 21CV1101, 2022 WL 2117763 (W.D.N.Y. June 13, 2022) (Skretny, J.) (Docket No. 31) (“Greenwood June 2022 Decision”); Greenwood v. Arthrex, Inc., No. 21CV1101,2023 WL 2457070 (W.D.N.Y. Mar. 10, 2023) (Skretny, J.) (Docket No. 48) (“Greenwood March 2023 Decision”), and her Cross-Motion for Leave to Amend the Complaint (Docket No. 41). Familiarity with these prior Decisions is presumed.

Presently is her Fourth Amended Complaint (Docket No. 49). In response, Arthrex moved to dismiss (Docket No. 51^[1]), with prejudice. For the reasons stated below, Arthrex's Motion (Docket No. 51) is granted.

II. Background

A. Procedural History

Leslie Greenwood originally sued Arthrex in New York State Supreme Court (Docket No. 1, Notice of Removal ¶ 2, Ex. A, Tab 1) and Arthrex answered (id., Ex. A, Tab 3). Greenwood then amended that Complaint adding Defendants Precision Edge Surgical Products Company (“Precision Edge”) and TE Connectivity Corporation (“TE”) (Id ¶ 5, Ex. A, Tab 7). Precision Edge removed this case to this Court (Id. ¶ 9, Exs. B, C), TE and Precision Edge then moved to dismiss the Amended Complaint (Docket Nos. 6, 7) but that Motion was dismissed as moot after Greenwood filed her Second Amended Complaint (Docket No. 17; see 2d Am. Compl., Docket No. 13). Meanwhile, Arthrex answered the Second Amended Complaint (Docket No. 19).

TE (Docket No. 18) and Precision Edge (Docket No. 20) then moved to dismiss the Second Amended Complaint. On June 13, 2022, this Court granted their Motions, Greenwood June 2022 Decision, supra, 2022 WL 2117763 (Docket No. 31), dismissing with prejudice Greenwood's strict product liability theories, negligence, and breach of warranties claims against TE, id. at *9-13, 14, and against Precision Edge, id. at *6-9, 14.

On July 8, 2022, Arthrex moved for Judgment on the Pleadings (Docket No. 37). Greenwood cross-moved for leave to amend her Second Amended Complaint (Docket No. 41). On January 3, 2023, this Court deferred ruling on Arthrex's Motion, granted leave to amend (Docket No. 45), and on January 9, 2023, Greenwood filed her Third Amended Complaint (Docket No. 46). The Third Amended Complaint removed allegations against TE and Precision Edge and alleged four modified Causes of Action against Arthrex for negligence, strict products liability, breach of warranties, and failure to warn (see generally id.).

On March 10, 2023, this Court granted in part Arthrex's Motion for Judgment on the Pleadings in that Third Amended Complaint, dismissing with prejudice Greenwood's Third Cause of Action but not dismissing the other causes of action while granting Greenwood leave yet again to amend the Complaint, Greenwood March 2023 Decision, supra, 2023 WL 2457070, at *11-12. There, this Court concluded that Greenwood needed to amend her defective manufacturing and breach of a duty to warn claims, while finding that her defective design claim did not require amendment, id. at *6-7, 10-11.

B. Fourth Amended Complaint (Docket No. 49)

As previously discussed, id. at *2, Greenwood was injured during a surgical procedure on or about October 25, 2018, from the use of an Arthrex Burr device resulting in permanent and serious injuries to her (Docket No. 49, 4th Am. Compl. ¶¶ 10-11). Greenwood's doctor later told her that there had been a “mechanical malfunction of the Arthrex surgical instrument identified by the manufacturer that resulted in a significant heating of the shaft of the burr that was most likely the cause of the anterior thermal on her shoulder” (id. ¶ 12).

As previously amended, the First Cause of Action alleges Arthrex's negligence in manufacturing and distributing the Arthrex Burr device (id. ¶¶ 6-9, 11), contending that the Arthrex Burr device was defective “because it generated an unsafe and dangerous amount of heat and it proximately caused Plaintiff to suffer serious personal injuries, including a severe burn to the skin of her shoulder” (id. ¶ 13).

The Second Cause of Action (as amended in prior iterations of the pleadings) alleges that Arthrex defectively designed and manufactured its Arthrex Burr device, negligently putting the device into the stream of commerce (id. ¶¶ 22, 24, 28, 31). Greenwood claims that it was feasible for Arthrex to design a safer alternative to the Arthrex Burr device (id. ¶¶ 29-30), without however proffering a safer design. She again invokes the recall statement issued 90 days after her surgery (id. ¶ 30). She claims that the defective device overheated and burned her because Arthrex failed to conduct adequate heat testing or failed to use proper alloys and insulation in the device to prevent overheating (id. ¶ 32).

The Fourth Amended Complaint omits the former Third Cause of Action for breaches of warranties. Instead, the amended Third Cause of Action repeats claims formerly alleged in the Fourth Cause of Action of prior versions of the pleading (cf. Docket No. 46, 3d Am. Compl. ¶¶ 43-47) for failure to warn. There, the Fourth Amended Complaint now alleges that Arthrex failed to warn of the defects that it would cause overheating (Docket No. 49, 4th Am. Compl. ¶¶ 36-41). Greenwood claims that, upon information and belief, that Arthrex's warnings were inadequate or defective because they failed to “include any content indicating that the shaft of the device could generate excessive heat during normal use, causing serious burns” (id. ¶ 39). She claims that Arthrex's instructions were inadequate or defective, contending that (if they existed) these instructions were not sufficiently prominent, that they were ambiguous or vague, not provided with the device, and/or were otherwise defective (id. ¶ 38). Greenwood now alleges that the cutting of bones and flesh during surgery, as was performed on her, “inherently causes friction and the potential for overheating of the Burr device” (id. ¶ 40).

C. Arthrex's Motion (Docket No. 51) to Dismiss the Fourth Amended Complaint

Arthrex now moves to dismiss the Fourth Amended Complaint (Docket No. 51) with prejudice the remaining three causes of action. After withdrawal of its arguments opposing the First Cause of Action (Docket No. 53), Arthrex now argues that Greenwood still fails to allege either a manufacturing or design defect claim, thus her amended Second Cause of Action should be dismissed (Docket No. 51, Def. Memo. at 4-9). Finally, Arthrex asserts that Plaintiff has not alleged a failure to warn claim in her newly amended Third Cause of Action, either an insufficient warning or the absence of any warning (id. at 9-16).

III. Discussion

A. Motion to Dismiss, Rule 12(b)(6)

As discussed with TE and Precision Edge's Motions, Greenwood June 2022 Decision, 2022 WL 2117763, at *3, under Federal Rule of Civil Procedure 12(b)(6), this Court cannot dismiss a Complaint unless it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Greenwood June 2022 Decision, supra, 2022 WL 2117763, at *3. As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a Complaint must be dismissed if it does not plead “enough facts to state a claim to relief that is plausible on its face,” id. at 570.

To survive a motion to dismiss, the factual allegations in the Complaint “must be enough to raise a right to relief above the speculative level,” Twombly, supra, 550 U.S. at 555; see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A Rule 12(b)(6) motion is addressed to the face of the pleading. The pleading is deemed to include any document attached to it as an exhibit, Fed.R.Civ.P. 10(c), or any document incorporated in it by reference, Goldman v. Belden, 754 F.2d 1059 (2d Cir. 1985).

In considering such a motion, the Court must accept as true all the well pleaded facts alleged in the Complaint, Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57 (2d Cir. 1985). However, conclusory allegations that merely state the general legal conclusions necessary to prevail on the merits and are unsupported by factual averments will not be accepted as true. New York State Teamsters Council Health and Hosp. Fund v. Centrus Pharmacy Solutions, 235 F.Supp.2d 123 (N.D.N.Y. 2002).

B. Choice of Law

Again as previously observed, Greenwood March 2023 Decision, supra, 2023 WL 2457070, at *4; Greenwood June 2022 Decision, supra, 2022 WL 2117763, at *3-4, New York choice of law procedures are applicable, thus New York substantive law applies here.

C. Legal Standards: Product Liability under New York Law

In granting Arthrex's earlier Motion for Judgment on the Pleadings, this Court discussed the standards under New York law applicable for the various alleged theories for product liability: strict liability, negligence, and breach of warranty, Greenwood March 2023 Decision, supra, 2023 WL 2457070,...