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finding that Plaintiff's design defect claim failed under theories of strict liability and negligence because the plaintiff failed to show a "safer alternative design" existed
Summary of this case from Castillo v. Bos. Sci. Corp.Opinion
No. 5:19–CV–1222–DAE
03-30-2020
Waldemar COFRESI, Plaintiff, v. MEDTRONIC, INC., Covidien, LP, Ethicon, Inc., and Johnson & Johnson, Defendants.
Nicole Elizalde Henning, The Henning Firm, San Antonio, TX for Plaintiff. Jessica C. Wilson, DLA Piper LLP, Boston, MA, Richard McLure Dye, Butler Snow LLP, Ridgeland, MS, Katherine Ann Fillmore, Christopher R. Cowan, Butler Snow LLP, Austin, TX, for Defendants.
Nicole Elizalde Henning, The Henning Firm, San Antonio, TX for Plaintiff.
Jessica C. Wilson, DLA Piper LLP, Boston, MA, Richard McLure Dye, Butler Snow LLP, Ridgeland, MS, Katherine Ann Fillmore, Christopher R. Cowan, Butler Snow LLP, Austin, TX, for Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
David Alan Ezra, Senior United States District Judge
Before the Court are two motions to dismiss. (Dkts. ## 11, 12.) The first was filed by Ethicon, Inc. ("Defendant Ethicon") on November 15, 2019, and the second was filed by Medtronic, Inc. ("Defendant Medtronic") and Covidien, LP ("Defendant Covidien") (collectively, "Medtronic Defendants") on November 18, 2019. (Id. ) Plaintiff Waldemar Cofresi ("Plaintiff") responded to both motions on December 17, 2019, (Dkt. # 17), and Medtronic Defendants filed a reply on January 3, 2020 (Dkt. # 20). Pursuant to Local Rule CV-7(h), the Court finds this matter suitable for disposition without a hearing. After careful consideration of the memorandum filed in support of and against the motion, the Court—for the reasons that follow—GRANTS the motions.
Defendant Ethicon is a subsidiary of Defendant Johnson & Johnson. (See Dkt. # 9, First Amended Complaint ("FAC") at ¶ 9.) At the time of Defendant Ethicon's filing, Defendant Johnson & Johnson had not been served. (Dkt. # 11 at 1.)
Defendant Covidien is owned by Defendant Medtronic. (FAC at ¶ 10.)
BACKGROUND
Plaintiff, a 66-year-old man, underwent surgery to repair a hernia on his left inguinal in September 2017. (FAC at ¶ 12.) The surgeon implanted a Prolene Mesh to repair the hernia. (Id. ) This Prolene Mesh was "designed manufactured, marketed, packaged, labeled, and sold by Defendant Ethicon." (Id. )
In October 2017, Plaintiff sought medical assistance for lower left stomach pain and increasing pain to the surgical site. (FAC at ¶ 13.) After running tests, the doctor prescribed Plaintiff antibiotics as she believed it was a problem in the large intestine. (Id. ) Plaintiff alleges that at some point later, he went to the hospital "complaining of pain in and around his operation site, mainly to his left groin and testicle" and discovered that he "also had a right inguinal hernia forming" and an infection in the left hernia site. (FAC at ¶ 14.)
As a result of this finding, a doctor recommended that Plaintiff "have reparative surgery to remove the Defendant Ethicon's Prolene Mesh and attempt another hernia repair using a different mesh." (Id. ) Plaintiff had another surgery conducted on him on August 30, 2018. (Id. ) During that surgery, the doctor implanted a ProGrip Laparoscopic Self-Fixating Mesh ("ProGrip Mesh") to fix the right hernia. (Id. ) The ProGrip Mesh is manufactured by Medtronic Defendants. (Id. ) The doctors noted that they inspected the left hernia and saw the entire area around the mesh to be "inflamed" and "found the Prolene Mesh had been completely integrated into all soft tissue in the groin" and were "unable to explant it" without performing a "complete orchiectomy." (Id. )
In September 2019, Plaintiff planned to undergo another surgery "to remove the remainder of the Prolene Mesh" and "try to find a solution to the effects of the ProGrip Mesh" that allegedly is "tearing itself from the tissue of Plaintiff where it was originally implanted." (FAC at ¶ 17; Dkt. # 1-1.)
PROCEDURAL HISTORY
As a result of the above-mentioned medical complications, Plaintiff filed suit in state court on September 13, 2019, bringing claims of (1) negligence, gross negligence, failure to warn, and design defect negligence and (2) strict product liability for failure to warn and defective design. (Dkt. # 1-1.)
Defendant Ethicon removed the case to this Court on October 14, 2019. (Dkt. # 1.) Medtronic Defendants filed a motion to dismiss on October 21, 2019. (Dkt. # 4.) On November 5, 2019, this Court denied the motion without prejudice in light of Plaintiff's first amended complaint.
In his FAC, Plaintiff seeks "damages for personal injuries sustained after two different mesh products were implanted" to attempt to fix Plaintiff's hernias. (FAC at ¶ 8.) Plaintiff asserts that "[a]s a result of defective design, defective manufacturing, defective construction/composition, inadequate warning, breach of express warranties, improper marketing, negligent marketing, negligence, gross negligence by Defendants, the mesh products at issue have caused severe and irreversible injuries[.]" (FAC at ¶ 15.) Plaintiff asserts that he is entitled to punitive damages against all Defendants (FAC at ¶ 47) and brings a loss of consortium claim as a result of the implanting of the Prolene and ProGrip Mesh (FAC at ¶¶ 16, 18.)
Currently pending before the Court are two motions to dismiss. As noted above, one motion was filed by Defendant Ethicon on November 15, 2019, and the second motion was filed by Medtronic Defendants on November 18, 2019. (Dkts. ## 11, 12.) Plaintiff responded to both motions on December 17, 2019, (Dkt. # 17), and Medtronic Defendants filed a reply on January 3, 2020 (Dkt. # 20). To date, Defendant Ethicon has not filed a reply and Defendant Johnson & Johnson has made no filing.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead "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 analyzing whether to grant a 12(b)(6) motion, a court accepts as true "all well-pleaded facts" and views those facts "in the light most favorable to the plaintiff." United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 727 F.3d 343, 346 (5th Cir. 2013) (citation omitted). A court need not "accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. DISCUSSION
In Texas, a plaintiff can bring a products liability action under three theories of recovery: "(1) strict liability under [ Restatement (Second) of Torts] § 402A, (2) breach of warranty under the U.C.C., and (3) negligence." Syrie v. Knoll Int'l, 748 F.2d 304, 306 (5th Cir. 1984) (citation omitted); see also Lashley v. Pfizer, Inc., 750 F.3d 470, 477 (5th Cir. 2014) (same); Tex. Civ. Prac. & Rem. Code Ann. § 82.001(2). "To make out a strict liability cause of action, a party must establish that: (1) a product is defective; (2) the defect rendered the product unreasonably dangerous; (3) the product reached the consumer without substantial change in its condition from the time of original sale; and (4) the defective product was the producing cause of the injury to the user." Syrie, 748 F.2d at 306. A product can be defective due to defective design, manufacture, or marketing. See Lucas v. Texas Indus., Inc., 696 S.W.2d 372, 377 (Tex. 1984). "To prevail on a claim of negligence against the supplier of an allegedly defective product, a plaintiff must prove a legal duty owed to the plaintiff by the defendant, breach of that duty, and damages to the plaintiff proximately caused by the breach of that duty." Dewayne Rogers Logging, Inc. v. Propac Indust., Ltd., 299, S.W.3d 374, 385 (Tex. App. 2009). "[I]t is a negligence concept that permits the introduction of evidence on the care exercised in the manufacturer's selection of the design." Syrie, 748 F.2d at 307–08 (citation omitted).
Here, Plaintiff organizes his claims within the FAC as (1) negligence, gross negligence, failure to warn, and design defect negligence; (2) strict liability – failure to warn; and (3) strict liability – defective design. (See generally FAC.) If the Court finds that Plaintiff fails to state a defective design and failure to warn claim under strict liability, the Court need not engage in a negligence analysis of these claims. See Garrett v. Hamilton Standard Controls, Inc., 850 F.2d 253, 257 (5th Cir. 1988) ("[A]lthough a negligence claim requires a different showing from a strict liability claim, a manufacturer logically cannot be held liable for failing to exercise ordinary care when producing a product that is not defective[.]") The Court will thus analyze below whether Plaintiff can bring his strict liability claims before assessing whether the claims meet the standard for negligence.
Plaintiff asserts that "[a]s the result of defective design, defective manufacturing, defective construction/composition, inadequate warning, breach of express warranties, improper marketing, negligent marketing, negligence, gross negligence by Defendants, the mesh products at issue have caused severe and irreversible injuries detailed below." (FAC at ¶ 15.) Such a conclusory, sweeping statement does not meet the pleading standards. As such, Plaintiff's claims of defective construction/composition and breach of express warranties (which Plaintiff only mentions in this one paragraph of the FAC) shall be dismissed as to all Defendants. This is discussed in greater detail below.
I. Defendant Ethicon's Motion to Dismiss
Defendant Ethicon asserts that regardless of whether Plaintiff's claims for design defect, manufacturing defect, and failure to warn are premised on negligence, gross negligence, or strict liability, Plaintiff does not allege sufficient facts to meet the pleading standards. (Dkt. # 11.) The Court agrees.
i. Design Defect
To succeed on a design defect claim, Plaintiff must show that "(1) the product was defectively designed so as to render it unreasonably dangerous; (2) a safer alternative design existed; and (3) the defect was the producing cause of the injury for which the plaintiff seeks recovery." Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009) (citing Texas Civ. Prac. & Rem. Code § 82.005(a) ). A "safer alternative design" is defined as:
a product design other than the one actually used that in reasonable probability (1) would have prevented or significantly reduced the risk of the claimant's personal injury, property damage, or death with substantially impairing the product's utility; and (2) was economically and technology feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge.
Tex. Civ. Prac. & Rem. Code § 85.005(b).
Defendant Ethicon argues that Plaintiff has failed to plead the elements of defective design, particularly because Plaintiff has failed to "show that there was a defect in the Prolene Mesh design" and failed specify "how the design was defective." (Dkt. # 11 at 2–3.) In addition, Defendant Ethicon emphasizes that under Texas law and within this Circuit, "a plaintiff cannot prove design defect by claiming that defendant should have sold an entirely different product." (Dkt. # 11 at 5); Brockert v. Wyeth Pharma., Inc., 287 S.W.3d 760, 770 (Tex. App. 2009) (citing Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 384–85 (Tex. 1995) (noting that a plaintiff cannot prove design defect by claiming that defendant should have sold an entirely different product)).
To defeat a 12(b)(6) challenge, "the complaint must contain either direct allegations on every material point necessary to sustain a recovery or contain allegations from which an inference fairly may be drawn that evidence on these material points will be produced at trial." Rios v. City of Del Rio, Tex., 444 F.3d 417, 420–21 (5th Cir. 2006) (citation omitted). Here, viewing the facts in the light most favorable to Plaintiff, the Court arguably can draw a reasonable inference that the Prolene Mesh had a defect (see FAC at ¶ 46 ("the material in the Product abrades tissues adversely affecting patient health and regularly fail to perform the purpose of its implantation such as the patient requires repair and/or removal of the Product and repeated treatment and surgery") and that defect caused Plaintiff's injuries (see FAC at ¶ 40 ("Defendants' defective design is the producing cause for Plaintiff's constant, chronic pain and the condemnation of being unable to take the mesh out of his body. Pain that would have subsided days after the surgery if a safer mesh was used instead.").
But even so, the Court finds that Plaintiff has failed to adequately allege the "safer alternative" element. The example of biomesh "made from natural or compatible organic tissue" (FAC at ¶ 39) is not an "alternative" to Prolene Mesh; it is an entirely different product. See Brockert, 287 S.W.3d at 770. And the reality is that Plaintiff's surgeon made the decision to use the Prolene Mesh; that Plaintiff now believes biomesh would have been a better choice does not mean that it is an "alternative" under the law. See Theriot v. Danek Med., Inc., 168 F.3d 253, 255 (5th. Cir. 1999) ("The problem with this argument is that it really takes issue with the choice of treatment made by Theriot's physician, not with a specific fault of the pedicle screw sold by Danek.")
In light of the foregoing, the Court finds that Plaintiff has failed to make a claim for design defect under a negligence or strict liability cause of action as to Defendant Ethicon.
ii. Manufacturing Defect
"A manufacturing defect exists when a product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous." Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006). Here, the Court finds that nowhere in the FAC does Plaintiff allege that a particular mishap occurred in the manufacturing process that rendered the Prolene Mesh unreasonably dangerous or somehow the product "deviate[d], in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous." Elmazouni v. Mylan, Inc., 220 F. Supp. 3d 736, 741 (N.D. Tex. 2016) (quoting Cooper Tire, 204 S.W.3d at 800 ). It appears to the Court that Plaintiff argues instead that it is the entire design of the Prolene Mesh that is defective. Consequently, Plaintiff has failed to plead a manufacturing defect, and this claim must be dismissed as to Defendant Ethicon.
iii. Failure to Warn / Marketing Defect
Failure to warn and marketing defect are essentially the same in this Circuit. See e.g. In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig., 888 F. 3d 753, 772 (5th Cir. 2018) ; Bryant v. Giacomini, S.p.A., 391 F. Supp. 2d 495, 503 (N.D. Tex. 2005) ("In a marketing defect (‘failure-to-warn’) case, the claimant must show that the warning was defective, and that the defect was the producing cause of the injury.")
Plaintiff asserts that the Prolene Mesh "was unreasonably dangerous and defective and not reasonably safe for its intended purpose because it did not have correct or complete warnings and instructions issued in a language that was direct, unequivocal, or sufficiently forceful to adequately explain and warn of the hazards of the product or the way to use the product safely." (FAC at ¶ 30.) Defendant Ethicon urges this Court to dismiss this claim as the FAC contains no indication or factual allegations "as to (a) what specific warnings were supposedly inadequate; (a) how Ethicon's warnings were inadequate; (c) what complications that Plaintiff sustained that were not set forth in Ethicon's warnings; and (d) what warnings should have been given instead." (Dkt. # 11 at 9.) The Court agrees with Defendant Ethicon.
"Generally, a manufacturer has a duty to warn if it knows or should know of the potential harm to a user because of the nature of its product." Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 426 (Tex. 1997). "A product may be unreasonably dangerous if a manufacturer fails to warn of a foreseeable risk arising from the use of the product, and the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous." McLennan v. Am. Eurocopter Corp., Inc., 245 F.3d 403, 427 (5th Cir. 2001) (quoting Coleman v. Cintas Sales Corp., 40 S.W.3d 544, 549–50 (Tex. App. 2001) ). To prevail on a claim for marketing defect, a plaintiff must prove that
(1) a risk of harm is inherent in the product or may arise from the intended or reasonably anticipated use of the product, (2) the product supplier actually knew or should have reasonably foreseen the risk of harm at the time the product was marketed, (3) the product possessed a marketing defect, (4) the absence of the warning or instructions rendered the product unreasonably dangerous to the ultimate user of the product, and (5) the failure to warn or instruct constituted a causative nexus in the product user's injury.
DeGrate v. Executive Imprints, Inc., 261 S.W.3d 402, 411 (Tex. App. 2008).
The aim of a marketing defect claim is to impose liability where the failure to warn itself caused a product to be unreasonably dangerous. See Ethicon Endo-Surgery, Inc. v. Meyer, 249 S.W.3d 513 (Tex. App. 2007) (emphasis added). Here, the Court finds that Plaintiff's claim cannot survive Defendant Ethion's dismissal motion because Plaintiff fails to identify how the warning was inadequate or insufficient. The Court shall grant Defendant Ethicon's motion as to this claim under strict liability and negligence.
b. Gross Negligence and Punitive Damages
Defendant Ethicon argues that Plaintiff fails to "show that Ethicon acted grossly negligent or that it acted with fraud or malice so as to give rise to a claim for punitive damages" as Plaintiff does not identify any "finding by the FDA that Prolene Mesh is ‘biologically incompatible’ for the use of hernia repairs akin to the repair undertaken by Plaintiff" and "numerous patients have benefited from its use for many years." (Dkt. # 11 at 11.) Plaintiff asserts that "scientific evidence adduced thus far shows that Defendants Ethicon and Johnson and Johnsons' Prolene mesh, which is made of polypropylene material, is biologically incompatible with human tissue and promotes a negative immune response in a large subset of the population implanted with it." (FAC at ¶ 26.)
To state a claim for gross negligence, a plaintiff must allege facts indicating that "the defendant knew about the peril, but his acts or omissions demonstrate that he did not care." Louisiana–Pac. Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex. 1999) ; Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 314 (5th Cir. 2002) (noting that gross negligence has two requirements "(1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed with conscious indifference to the rights, safety, or welfare of others.") Punitive damages are available when the evidence shows that the defendant acted with fraud, malice, or gross negligence. Tex. Civ. Prac. & Rem. Code § 41.003.
Here, while a close call, the Court finds that Plaintiff's allegations do not go beyond mere legal conclusions. Plaintiff fails to show that Defendant Ethicon acted with an extreme degree of risk or was consciously indifferent to the safety of others by creating the Prolene Mesh in question. Thus, Plaintiff's punitive damages and gross negligence claims must be dismissed.
II. Medtronic Defendants' Motion to Dismiss
Medtronic Defendants assert that (1) Plaintiff does not include sufficient factual allegations to support his conclusion that ProGrip Mesh was defectively designed; (2) Plaintiff fails to state a failure to warn claim; (3) Plaintiff's design defect and failure to warn claims brought under a negligence theory rise and fall with his strict liability claims; (4) Plaintiff fails to state a claim for gross negligence; and (5) Plaintiff is not entitled to punitive damages or loss of consortium. (Dkt. # 12.) The Court assesses each of these arguments below.
a. Design Defect
Much like the arguments made in Defendant Ethicon's motion, Medtronic Defendants assert that Plaintiff fails to show that a safer alternative design existed because "biomesh" is "an entirely different type of product than the synthetic meshes at issue here," and under Texas law, Plaintiff must " ‘explain how [the ProGrip Mesh at issue] could have been modified or improved,’ not allege that it should have been biomesh." (Dkt. # 12 at 11 (citing Brockert, 287 S.W.3d at 771 (dismissing design defect claim where the plaintiff "argue[d] that the product ... should have been a different product" because "Texas law does not recognize this sort of categorical attack on a product")).) Medtronic Defendants also assert that "Plaintiff cannot plausibly allege that polypropylene mesh is a safer alternative design when he simultaneously alleges that Ethicon's Prolene Mesh is defective because it is made of polypropylene." (Dkt. # 20 at 3.)
To recover on a design defect claim in Texas, a plaintiff must show: (1) the product was defectively designed so as to render it unreasonably dangerous; (2) a safer alternative design existed; and (3) the defect was the producing cause of the injury for which the plaintiff seeks recovery. Timpte Indus., 286 S.W.3d at 311 (citing Texas Civ. Prac. & Rem. Code § 82.005 ). Here, for the same reasons that the Court found no design defect claim could be brought against Defendant Ethicon, here Plaintiff cannot meet the safer alternative design element by suggesting that an alternative to the ProGrip Mesh is "biomesh" or "polypropylene" mesh as those are different products. Thus, the Court finds that Plaintiff fails to plausibly make out a design defect claim.
a. Failure to Warn / Marketing Defect
Medtronic Defendants assert that the learned intermediary doctrine applies to Plaintiff's failure to warn claims as Plaintiff obtained ProGrip Mesh through his surgeon and thus "any duty of the Medtronic Defendants ran to Plaintiff's surgeon not to Plaintiff." (Dkt. # 12 at 13.) Furthermore, Medtronic Defendants assert that their warning (Dkt. # 12, Exh. A) included the possible complications associated with the use of ProGrip Mesh complained of by Plaintiff, and thus, "there is no factual basis for this Court to infer that Plaintiff's surgeon would not have implanted the ProGrip Mesh if only the Medtronic Defendants had provided different warnings." (Dkt. # 12 at 14.)
The Court agrees. As noted above, liability will only be imposed if the failure to warn itself caused a product to be unreasonably dangerous, and here, Plaintiff fails to identify how the warning on the ProGrip Mesh was inadequate. Furthermore, Plaintiff must identify what his surgeon was warned or what the surgeon reviewed in order to allege that the surgeon would have decided against using ProGrip Mesh had the warning been different. For these reasons, the Court shall grant Medtronic Defendants' motion as to this claim.
b. Gross Negligence
Medtronic Defendants assert that they are not grossly negligent in the development of ProGrip Mesh. They argue that the development of the product did not involve an extreme degree of risk and Medtronic Defendants support that claim by noting that the FDA cleared ProGrip Mesh "as safe and effective for use in the United States for repairing inguinal hernias" and since 2012, ProGrip Mesh "has not been subject to any recalls, market withdrawals, or other adverse regulatory action." (Dkt. # 12 at 7, 16.) Medtronic Defendants assert that Plaintiff also fails to "alleges the probability nor the magnitude of the alleged potential harm to others, and instead offers only vague allegations that the Medtronic Defendants were somehow ‘reckless’ in their research of the product." (Dkt. # 12 at 16.)
Gross negligence has two requirements "(1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed with conscious indifference to the rights, safety, or welfare of others." Great Plains, 313 F.3d at 314. Again, although a close call, this Court finds that Plaintiff fails to allege that Medtronic Defendants have been grossly negligent. Plaintiff's vague allegations of reckless behavior does not meet the pleading standards.
c. Punitive Damages and Loss of Consortium
The Court finds that Plaintiff's claims for punitive damages and loss of consortium also fail as to Medtronic Defendants. Importantly, Plaintiff fails to allege facts regarding Medtronic Defendants' conduct to show "fraud, malice, or gross negligence." Tex. Civ. Prac. & Rem. Code § 41.003(a). And pleading "loss of consortium" without more detail does not meet the necessary standard for making this claim. (See Dkt. # 12 at 18 (noting that Plaintiff failed to allege "that he was married at the time he was implanted with the Medtronic Defendants' ProGrip Mesh or thereafter, or identifying his spouse or naming that individual as a Plaintiff").) Furthermore, because this Court is dismissing the underlying tort claims, Plaintiff's loss of consortium claim must also be dismissed. See Barker v. Halliburton Co., 645 F.3d 297, 299 (5th Cir. 2011) ("Under Texas law, a loss of consortium claim is derivative of the tortfeasor's liability to the physically injured spouse.")
d. Plaintiff's Other Claims
There is some question as to whether Plaintiff brings claims other than that for (1) negligence, gross negligence, failure to warn, and design defect negligence; (2) strict liability – failure to warn; and (3) strict liability – defective design. (See generally FAC.) Plaintiff asserts that he "alleges in his live pleading that his injuries and damages are the result of defective design, defective manufacturing, defective construction/composition, inadequate warning, breach of express warranties, improper marketing, negligent marketing, negligence and gross negligence." (Dkt. # 17.) Medtronic Defendants argue that to the extent Plaintiff brings any of these claims, they should be dismissed. (Dkt. # 20.)
First, as noted above, this Court finds that merely listing claims for defective construction/composition and for breach of express warranties is not enough to meet the pleading standard. There appears to be no separate claim for defective construction/composition under Texas law, and the FAC contains no factual allegations in support of Plaintiff's breach of express warranty claim. For these reasons, these claims shall be dismissed as to all Defendants.
As a general rule, "[e]ven if a party does not make a formal motion under Rule 12(b)(6), the district judge on his or her own initiative may note the inadequacy of the complaint and dismiss it for failure to state a claim as long as the procedure employed is fair to the parties." Century Sur. Co. v. Blevins, 799 F.3d 366, 372 (5th Cir. 2015) (citing 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure—Civil § 1357 (3d ed. 2004) ). Given that the Court will allow Plaintiff an opportunity to amend his complaint, the Court finds that a sua sponte dismissal is fair as to all Defendants for these two claims.
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Second, as this Court noted above, a manufacturing defect "exists when a product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous." Cooper Tire, 204 S.W.3d at 800. Here, Plaintiff has not provided any color to his claim for manufacturing defect against any Defendants and thus, this claim shall also be dismissed.
Finally, the Court finds that Plaintiff's claims for "improper" or "negligent" marketing is synonymous with a failure to warn claim. Bryant, 391 F. Supp. 2d at 503. The marketing defect claim has been discussed in detail above, and for the reasons listed above, these claims must also be dismissed as to Medtronic Defendants.
CONCLUSION
For the reasons stated above, Defendant Ethicon's motion (Dkt. # 11) is GRANTED , and Medtronic Defendants' motion (Dkt. # 12) is GRANTED . Plaintiff's claims as to these Defendants are DISMISSED WITHOUT PREJUDICE . Furthermore, Plaintiff's claims against all Defendants for defective construction/composition and breach of express warranties are DISMISSED WITHOUT PREJUDICE . Plaintiff may amend his complaint to re-plead the claims within twenty-one days of the date of this Order.
IT IS SO ORDERED .