Tears v. Bos. Scientific Corp.

344 F.Supp.3d 500

Terrance TEARS, Plaintiff,

v.BOSTON SCIENTIFIC CORPORATION, Defendant.

17 Civ. 9793 (AJN)

United States District Court, S.D. New York.

Signed September 29, 2018

Debra Humphrey, Kevin Shi Yi Wang, Marc J. Bern & Partners LLP, New York, NY, for Plaintiff.

Angela Rosalee Vicari, Arnold & Porter Kaye Scholer LLP, New York, NY, for Defendant.

MEMORANDUM OPINION & ORDER

ALISON J. NATHAN, District Judge

This case arises from Plaintiff Terrance Tears' 2002 implantation with the Greenfield Filter, a vena cava filter manufactured by Defendant Boston Scientific Corporation ("BSC"). Tears seeks compensatory and punitive damages from BSC for alleged negligence, strict products liability, breach of express and implied warranties, fraudulent misrepresentation and concealment, negligent misrepresentation, and violation of New York General Business Law ("GBL") Sections 349 and 350. Before the Court is BSC's motion to dismiss the complaint in its entirety for failure to state a claim upon which relief can be granted. For the reasons provided below, BSC's motion to dismiss is GRANTED in full with prejudice.

I. BACKGROUND

The Court takes the following facts from Tears' complaint, from the documents incorporated by reference therein, and from the additional materials appended to BSC's filing.¹ See Helprin v. Harcourt, Inc. , 277 F.Supp.2d 327, 330 (S.D.N.Y. 2003) ("While the court may not consider matters outside the pleadings, it may consider documents ... incorporated by reference, documents that are integral to the plaintiff's claims, even if not explicitly incorporated by reference, and matters of which judicial notice may be taken.") (internal citations omitted).

The inferior vena cava ("IVC") is a "vein that returns blood to the heart from the lower extremities." Compl. ¶ 29. Blood clots can travel through the IVC from the leg or pelvis into the lungs, causing pulmonary embolism, a potentially life threatening condition. To mitigate this risk, individuals susceptible to clotting are often treated with anticoagulants. For individuals "who are at high risk" of clotting "or for whom anticoagulants are contraindicated, doctors may recommend implantation of an IVC filter."Id. ¶ 31. An IVC filter is a medical device that is inserted into the IVC to trap and filter clots from the lower extremities before they reach the lungs. There are two kinds of IVC filters currently on the market: permanent IVC filters, and retrievable IVC filters. Defendant BSC is the manufacturer of the Greenfield IVC Filter, a metal filter designed for permanent implantation "to prevent, among other things, recurrent pulmonary embolism via placement in the vena cava." Id. ¶ 35-36.

On or about October 30, 2002, Tears underwent a surgical implantation of the Greenfield Filter following his hospitalization for "pulmonary embolism related issues." Id. ¶ 60. The Filter was implanted in his "right femoral vein." Id. at 62. In 2015, Tears "began experiencing pains and problems in his chest region," which can be caused by "malfunctioning IVC filters." Id. at 65-66. On January 15, 2016, an abdominal scan revealed that Tears' IVC filter was located at the level of his L3-L4 vertebrae. On October 11, 2017, Tears filed the instant suit against BSC in the Supreme Court of New York, County of New York alleging that the Greenfield Filter is "unreasonably dangerous" and "faulty." Id. ¶¶ 1, 3. According to the complaint, Tears suffers "constant pains in the abdominal region" and is "at risk of suffering from serious health complication[s]," including "the risk of the filter migrating to the other parts of the vena cava, heart, lungs or other organs" as a result of the filter's defect. Id. ¶ 76. The complaint further alleges that BSC "knew its IVC filters were defective in design" and "failed to disclose to physicians, patients, or [to Tears]" the risks associated with permanent implantation. Id. ¶ 69-70.

On December 14, 2017, BSC filed a notice of removal to this Court. Dkt. No. 1. On December 21, 2017, BSC filed a motion to dismiss Tears' Complaint in its entirety. Dkt. No. 5. In response to an Order from the Court, Tears filed a letter on January 18, 2018, announcing its intention to rely on its pleadings rather than take the opportunity to amend. Dkt. No. 14. Tears filed an opposition to the motion to dismiss on January 22, 2018, Dkt. No. 16, and BSC filed its reply on January 29, 2018, Dkt. No. 17. The December 21, 2017 motion to dismiss now before the Court is therefore fully briefed.

II. LEGAL STANDARD

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts the allegations in the Complaint as true and draws all reasonable inferences in favor of the non-moving party.

McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 191 (2d Cir. 2007). To survive a motion to dismiss, the complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "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." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In other words, "the complaint's factual allegations must be enough to raise a right to relief above the speculative level, i.e., enough to make the claim plausible." Arista Records, LLC v. Doe 3 , 604 F.3d 110, 120 (2d Cir. 2010) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ) (internal citations omitted). "Threadbare recital of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

Generally, only "the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint" may be considered in assessing whether a claim is sufficient to survive a Rule 12(b)(6) motion. DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 111 (2d Cir. 2010). However, "when a plaintiff chooses not to attach to the complaint or incorporate by reference a document upon which it solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration." International Audiotext Network, Inc. v. American Tel. and Tel Co. , 62 F.3d 69, 72 (2d Cir. 1995) (quoting Cortec Indus., Inc. v. Sum Holding L.P. , 949 F.2d 42, 47-48 (2d Cir. 1991) (internal quotation marks omitted).

III. DISCUSSION

A. Tears' Alleged Injury

As a preliminary matter, BSC argues that Tears has not adequately alleged an injury caused by the Greenfield Filter, and therefore that the complaint must be dismissed in full. See Dkt. No. 7 at 6-8. According to BSC, Tears' injury allegations are either "(i) conclusory allegations and injuries not alleged to be caused by a defect in Plaintiff's Greenfield filter, [or] (ii) injuries that Plaintiff claims can be caused by IFC filters generally or as to which he is at risk, absent any allegation that he himself has experienced such injury." Id. at 6. It is true that many statements in the complaint concerning Tears' injuries are nothing more than conclusory statements, devoid of specific facts. See, e.g. , Compl. ¶ 77 ("As a direct and proximate result of the wrongful acts and omissions of Defendant, Plaintiff suffered severe injuries, including but not limited to economic damages, severe permanent injuries, emotional distress, psychological trauma of living with a defective product implanted in Plaintiff's body."). In addition, a risk of future harm is "insufficient to impose liability against a defendant in a tort context." Perez v. Braun Medical, Inc. , No. 17-cv-8512 (LLS), 2018 WL 2316334 (S.D.N.Y. May 9, 2018) (quoting Caronia v. Philip Morris USA, Inc. , 22 N.Y.3d 439, 446, 5 N.E.3d 11, 14, 982 N.Y.S.2d 40, 43 (N.Y. 2013) ).

Nevertheless, in deciding a motion to dismiss, the Court must "construe the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." McGarry v. Pallito , 687 F.3d 505, 510 (2d Cir. 2012) (internal quotation marks omitted). Tears states specifically (1) that the Greenfield Filter was implanted in his right femoral vein; (2) that he experienced stomach pain associated with filter malfunction; (3) that a scan of his stomach revealed the filter at the level of his L3-L4 vertebrae, and (4) that he continues to experience stomach pain. Compl. ¶¶ 62-66, 76. Taken together, these allegations permit a reasonable inference that Tears' filter has migrated, causing pain. Though the complaint is not a model of clarity, the allegations related to Tears' injury are not so vague as to deprive BSC of fair notice of the claims against it.

B. Negligence and Strict Products Liability Claims

Counts I-IV of the complaint rely on theories of negligence and strict liability related to the design, manufacture, or marketing of the Greenfield Filter. See Compl. ¶¶ 80-138. Tears pleads three alternate theories of products liability: design defect, manufacturing defect, and failure to warn. Under New York law, which applies in this diversity action, negligence claims under these three theories are "functionally equivalent" to their strict liability counterparts.² Oden v. Boston Scientific Corp. , 330 F.Supp.3d 877, 2018 WL 3102534 *4 (E.D.N.Y. June 4, 2018) ; see also Colon ex rel. Molina v. BIC USA, Inc. , 199 F.Supp.2d 53, 83 (S.D.N.Y. 2001) ("Courts have noted that, for the purposes of analyzing a design defect claim, the theories of strict liability and negligence are virtually identical."); Rosen v. St. Jude Medical, Inc. , 41 F.Supp.3d 170, 182 (N.D.N.Y. 2014) ("Under New York law, to state a claim for manufacturing defect under theories of strict liability or negligence, the plaintiff must allege that (1) the product was defective due to an error in the manufacturing process...