Morgan v. Smith & Nephew, Inc.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Mo.February 23, 2017

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI SUZANNE MORGAN, ) ) Plaintiff, ) ) v. ) Civil Action No. 5:17-cv-06015-FJG ) SMITH & NEPHEW, INC., ) ) Defendant. ) DEFENDANT SMITH & NEPHEW, INC.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Defendant, Smith & Nephew, Inc. (“S&N”), by counsel, hereby moves the Court to dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim on the basis of express and implied preemption, and for failure to satisfy Fed. R. Civ. P. 8. In support thereof, S&N states as follows: 1. The Birmingham Hip Resurfacing (“BHR”) System, is a Class III medical device that received pre-market approval (“PMA”) from the U.S. Food and Drug Administration (“FDA”) on May 9, 2006. [Doc. 1, at ¶ 11.] 2. As a result, any state law tort claims that seek to “add to or modify” federal requirements for the device are expressly preempted by the Medical Device Amendments of 1976 (“MDA”), 21 U.S.C. § 360k(a). Wolicki-Gables v. Arrow Int’l, Inc., 634 F.3d 1296, 1300 (11th Cir. 2011); In Re Medtronic Sprint Fidelis Leads Prod. Liab. Litig., 623 F.3d 1200, 1204 (8th Cir. 2010); Zaccarelo v. Medtronic, Inc., 38 F.Supp.3d 1061, 1067-68 (W.D. Mo. 2014). Case 5:17-cv-06015-FJG Document 4 Filed 02/23/17 Page 1 of 4 2 3. Plaintiff was implanted with the BHR System on March 5, 2012. [Doc. 1, at ¶ 47.] She alleges that the device failed requiring her to undergo a revision surgery on January 6, 2014. [Id. ¶ 48.] 4. Plaintiff’s Complaint includes ten causes of action: (1) negligence/gross negligence; (2) defective manufacture; (3) failure to warn; (4) breach of express warranty; (5) breach of implied warranties; (6) negligent misrepresentation; (7) violation of the Missouri Merchandising Product Act; (8) fraudulent concealment; (9) negligent infliction of emotional distress; and (10) punitive damages. [Doc. 1.] 5. The causes of action in Plaintiff’s Complaint assert state tort law claims that seek to “add to or modify” federal requirements and are expressly preempted by the Medical Device Amendments of 1976 (“MDA”), 21 U.S.C. § 360k(a). In Re Medtronic Sprint Fidelis Leads Prod. Liab. Litig., 623 F.3d 1200, 1204 (8th Cir. 2010); Zaccarelo v. Medtronic, Inc., 38 F.Supp.3d 1061, 1067-68 (W.D. Mo. 2014). 6. While Plaintiff attempts to avoid dismissal of this action by pleading a “parallel claim” related to adverse event reporting, the Eighth Circuit has held that such claims are not parallel to state tort law, and constitutes an impliedly preempted attempt to enforce the Food, Drug and Cosmetic Act (“FDCA”). In Re Medtronic, Inc., 623 F.3d at 1205-06. 7. Finally, the Complaint fails to satisfy Fed. R. Civ. P. 8. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Complaint consists of formulaic, boilerplate allegations, often simply a reference to a federal regulation or statute, without any specific facts supporting the allegations or connecting them to Plaintiff’s claims. Case 5:17-cv-06015-FJG Document 4 Filed 02/23/17 Page 2 of 4 3 8. S&N incorporates by reference the law and argument set forth its Suggestions in Support of Motion to Dismiss Plaintiff’s Complaint, which is being filed together with this Motion. WHEREFORE, Plaintiff’s Complaint fails to plead a viable, non-preempted claim. Accordingly, S&N respectfully requests that the Court grant this Motion and dismiss Plaintiff’s Complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(6). Dated: February 23, 2017 Respectfully submitted, SHOOK, HARDY & BACON L.L.P. By: /s/ Harley V. Ratliff Harley V. Ratliff, #56478 MO Kelly Bieri, #59060 MO Devin Ross, #62213 MO 2555 Grand Blvd. Kansas City, MO 64108-2613 Telephone: (816) 474-6550 Facsimile: (816) 421-5547 hratliff@shb.com kbieri@shb.com dkross@shb.com Attorneys for Defendant Smith & Nephew, Inc. Case 5:17-cv-06015-FJG Document 4 Filed 02/23/17 Page 3 of 4 4 CERTIFICATE OF SERVICE I hereby certify that on February 23, 2017 the foregoing document, which was filed with the Court through the CM/ECF system which will send notice to the following counsel of record: D. Todd Mathews, #52502 156 North Main Street Edwardsville, IL 62025 Phone: (618) 659-9833 Fax: (618) 659-9834 todd@gorijulianlaw.com Attorneys for Plaintiff /s/ Devin K. Ross Devin K. Ross Attorney for Defendant Smith & Nephew, Inc. Case 5:17-cv-06015-FJG Document 4 Filed 02/23/17 Page 4 of 4