Porter v. Depuy Orthopaedics, Inc., Civil No. 3:19cv007 (REP)

WILLIE CLAUDE PORTER, Plaintiff, v. DEPUY ORTHOPAEDICS, INC., Defendant.

Civil No. 3:19cv007 (REP)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

August 6, 2019

REPORT AND RECOMMENDATION

Plaintiff Willie Claude Porter ("Plaintiff") brings this action against Defendant DePuy Orthopaedics, Inc. ("DePuy"),¹ alleging that DePuy committed gross and ordinary negligence, breached express and implied warranties, and should be held strictly liable for design defects related to a knee replacement device installed in Plaintiff's left knee. This matter comes before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on DePuy's Motion to Dismiss (ECF No. 18), moving pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss all counts of Plaintiff's Complaint for failure to state a claim upon which relief can be granted. For the reasons set forth below, the Court recommends that DePuy's Motion to Dismiss (ECF No. 18) be GRANTED, that Counts I, II, III and VII of Plaintiff's Complaint (ECF No. 1)be DISMISSED WITHOUT PREJUDICE and that Counts IV, V and VI be DISMISSED WITH PREJUDICE.

I. BACKGROUND

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts Plaintiff's well-pleaded factual allegations as true, though the Court need not accept Plaintiff's legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Based on this standard, the Court accepts the following facts.

A. DePuy's Rotating Platform Knee Implant

DePuy manufactures, markets and distributes several knee replacement implants, including fixed bearing knees, rotating platform knees and high flexion knees. (Compl. (ECF No. 1) ¶¶ 15-16.) Relevant here, DePuy pioneered a rotating platform knee ("RPK") implant to mirror the natural movements of a patient's original knee with structural bearings that can rotate. (Compl. ¶¶ 17, 20.) Indeed, DePuy advertised that its RPK implants provided more natural movement, involved less wear on the implants' parts and permitted rotation. (Compl. ¶ 19.) DePuy also held itself out "as [a] global leader[] in hip, knee and shoulder replacement, and as the largest provider of orthopaedic and neurological solutions in the world." (Compl. ¶ 21.)

Before 2012, however, DePuy became aware that its knee replacement implants, including its RPK implants, often failed prematurely, causing patients extreme pain and tissue and bone damage. (Compl. ¶ 22.) Specifically, although an unidentified party, presumably DePuy, advertised that DePuy's knee implant systems could last approximately fifteen years, several reports found that a considerable number of DePuy's implants failed after only one or two years. (Compl. ¶ 24.) In fact, in the last several years, DePuy has issued multiple recalls for components of its knee replacement systems. (Compl. ¶ 26.)

B. Plaintiff's Knee Replacement

On September 12, 2012, Plaintiff underwent a total left knee replacement surgery, during which Plaintiff's surgeon installed DePuy's RPK implant. (Compl. ¶ 27.) Approximately one year later, in late 2013, Plaintiff began complaining about sudden pain and swelling in his left knee. (Compl. ¶ 28.) Plaintiff's treating physician referred Plaintiff to physical therapy and ordered x-rays of his left knee. (Compl. ¶ 29.) Plaintiff's x-rays revealed no evidence of loosening in Plaintiff's RPK implant at that time; however, Plaintiff's physician observed some swelling. (Compl. ¶ 29.) Plaintiff attended physical therapy for several weeks thereafter. (Compl. ¶ 30.)

Between 2014 and 2016, despite attending physical therapy and receiving cortisone shots, Plaintiff continued to experience worsening pain, swelling, stiffness and weakness in his left knee. (Compl. ¶¶ 31-33.) In January 2017, Plaintiff started treatment with a new orthopedic physician, who ordered additional x-rays and scans of Plaintiff's left knee. (Compl. ¶¶ 33-35.) Upon review of the additional imaging, Plaintiff's new orthopedist identified knee replacement failure as a potential cause of Plaintiff's continued knee problems. (Compl. ¶¶ 35-37.) Specifically, Plaintiff's orthopedist noted possible loosening of the RPK implant. (Compl. ¶ 37.)

Between February and July 2017, Plaintiff underwent nonsurgical treatments for his left-knee pain that proved ineffective. (Compl. ¶ 38.) Consequently, on August 29, 2017, Plaintiff underwent a total knee revision surgery. (Compl. ¶ 39.) At the time of Plaintiff's revision surgery, Plaintiff's surgeon noted pain, swelling and effusion in Plaintiff's left knee, "with documented infection." (Compl. ¶ 39 (internal quotations omitted).) Plaintiff's surgeon also noted "aseptic loosening of the femoral and tibial components" of Plaintiff's RPK implant. (Compl. ¶ 39 (internal quotations omitted).) The revision surgery caused pain, permanentimpairment and weakness in the ligaments, bone and muscles surrounding Plaintiff's left knee. (Compl. ¶¶ 41-42.) Plaintiff may also require additional revision surgeries in the future. (Compl. ¶ 43.)

C. Plaintiff's Complaint

On January 7, 2019, Plaintiff filed suit in this Court against DePuy, several DePuy affiliates and companies associated with Johnson & Johnson. (ECF No. 1.) On May 7, 2019, Plaintiff filed a stipulation of voluntary dismissal, dismissing without prejudice all defendants except DePuy. (Stipulation of Voluntary Dismissal Without Prejudice (ECF No. 17) at 1.)

Based on the above facts, Plaintiff's Complaint raises seven counts for relief. In Count I, Plaintiff alleges that DePuy breached its duty to use reasonable care in the manufacture, sale and distribution of its RPK implants. (Compl. ¶¶ 46-52.) Specifically, Plaintiff alleges that DePuy committed wanton, reckless, grossly negligent and negligent acts by: (1) manufacturing, inspecting, marketing, distributing, selling and supplying the RPK implants "in such a way that persons using the product would be subject to unreasonable danger;" (2) failing to warn hospitals and patients that the RPK implants performed defectively; (3) placing or permitting the placement of the RPK implants into the stream of commerce when DePuy knew or should have known that the implants performed defectively; (4) failing to limit the harm caused by the RPK implants; (5) manufacturing, inspecting, marketing, distributing, selling and supplying the RPK implants in an unsafe condition; (6) failing to maintain awareness of and respond to public, governmental and industry studies, reports, information, recommendations and complaints regarding problems with the RPK implants; and, (7) failing to exercise due care under the circumstances. (Compl. ¶ 51(A)-(H).)

In Count II, Plaintiff alleges that DePuy breached the express warranties made through the advertisement, marketing and promotion of its RPK implants, which represented the implants as safe, effective and appropriate for their intended use. (Compl. ¶¶ 53-59.) In Counts III and IV, Plaintiff alleges that DePuy breached the implied warranties of merchantability and fitness for a particular purpose. (Compl. ¶¶ 60-73.)

In Count V, Plaintiff alleges that the design defects in the RPK implants render DePuy strictly liable. (Compl. ¶ 76-82.) Similarly, in Count VI, Plaintiff alleges that DePuy should be strictly liable, because the RPK implants failed to conform to DePuy's representations and caused serious physical injury to Plaintiff. (Compl. ¶¶ 83-87.) For both Counts V and VI, Plaintiff asserts that DePuy's conduct warrants the imposition of punitive damages. (Compl. ¶¶ 82, 87.)

Finally, in Count VII, Plaintiff alleges that DePuy's conduct represented a willful and wanton disregard for the rights of others such that Plaintiff has a right to punitive damages at common law. (Compl. ¶¶ 88-94.) Based on these seven counts, Plaintiff seeks $1,000,000.00 in compensatory damages, $350,000.00 in punitive damages, pre- and post-judgment interest and any other relief that the Court deems proper. (Compl. at 17-18.)

D. DePuy's Motion to Dismiss

On May 8, 2019, DePuy filed its Motion to Dismiss (ECF No. 18), moving this Court pursuant to Rule 12(b)(6) to dismiss all counts of Plaintiff's Complaint. In support of its Motion, DePuy argues that federal law preempts Plaintiff's claims, citing to the Supreme Court's holding in Riegel v. Medtronic, Inc., 552 U.S. 312, 323-24 (2008), for the proposition that the Medical Device Amendments of 1976 (the "MDA"), 21 U.S.C. § 360c et seq., expressly preempts state common-law claims that impose different or additional requirements on device manufacturers.(Def.'s Mem. at 7-12.) DePuy points to other federal court decisions relying on the preemption doctrine to dismiss similar state-law claims related to the exact same knee implant at issue here. (Def.'s Mem. at 9-12 (citations omitted).)

Even if federal law does not preempt Plaintiff's claims, DePuy contends that Plaintiff has nonetheless failed to state claims upon which relief can be granted. For one, DePuy maintains that Plaintiff's strict liability claims (Counts V and VI) must fail, because they improperly allege strict liability under Ohio law when none of Plaintiff's allegations render Ohio law applicable. (Def.'s Mem. at 14.) Instead, DePuy argues that Virginia law, which provides no strict liability scheme for product defects, applies to Plaintiff's claims. (Def.'s Mem. at 14.)

As for Plaintiff's negligence claim in Count I, DePuy contends that Plaintiff has failed to identify any specific defect in the RPK implant that caused his alleged injuries. (Def.'s Mem. at 15.) DePuy adds that Plaintiff has also failed to identify how a different implant design or manufacturing process would have prevented his alleged injuries. (Def.'s Mem. at 15.) DePuy asserts that Plaintiff's warranty claims (Counts II, III and IV) likewise prove implausible, because Plaintiff alleges no specific facts to support those claims. (Def.'s Mem. at 15-17.) And DePuy argues that the Court should dismiss Count VII,...