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Kester v. Zimmer Holdings

October 18, 2010

MOLLY KESTER, PLAINTIFF,
v.
ZIMMER HOLDINGS, INC., DEFENDANTS.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM OPINION AND ORDER OF COURT

Pending before the Court is the PARTIAL MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (Document No. 89) with brief in support (Document No. 90) filed by the sole remaining Defendant, Zimmer Holdings, Inc. ("Zimmer"). Plaintiff, Molly Kester ("Kester" or "Plaintiff"), has filed a response to the motion (Doc. No. 93). Accordingly, the issues have been fully briefed and the matter is ripe for disposition.

PROCEDURAL HISTORY

On November 18, 2009, Plaintiff filed a Complaint against APP Pharmaceuticals, LLC, APP Pharmaceuticals, Inc., Abraxis Bioscience, LLC, Abraxis Bioscience, Inc., (collectively, the "APP Defendants"), Hospira Inc., I-Flow Corporation, and Zimmer Holdings, Inc. in which she asserted the following nine causes of action: (1) negligence and negligence per se; (2) strict products liability; (3) breach of express warranty; (4) breach of implied warranty; (5) fraudulent misrepresentation; (6) fraudulent concealment; (7) negligent misrepresentation; (8) fraud and deceit; and (9) violation of Pennsylvania Unfair Trade Practices Act and Consumer Protection Law ("UTPCPL"). Overall, the Complaint averred that Plaintiff suffered numerous adverse health conditions following her shoulder surgery in 2007 that resulted from the implantation of an ambulatory pain pump into her shoulder and/or the medication administered through that pump.

All named Defendants*fn1 responded with Rule 12(b)(6) Motions to Dismiss, which the Court granted in a Memorandum Opinion and Order of Court (Doc. No. 87), dated June 16, 2010. In that Opinion, the Court dismissed the original complaint (Doc. No. 1) in its entirety, and granted Plaintiff leave to amend.

On July 7, 2010, Plaintiff filed an Amended Complaint. The Amended Complaint names Zimmer as the sole defendant and asserts the following three causes of action: (1) Negligence and Negligence Per Se; (2) Breach of Implied Warranty; and (3) Fraudulent Concealment. Thereafter, Zimmer filed the instant partial motion to dismiss and maintains that Count II and Count III of the Amended Complaint fail to state a claim.*fn2

STANDARD OF REVIEW

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) challenges the legal sufficiently of the complaint filed by Plaintiff. The United States Supreme Court has held that "[a] plaintiff's obligation to provide the "grounds' of his "entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (207) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)) (alterations in original).

The Court must accept as true all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. However, as the Supreme Court made clear in Twombly, the "factual allegations must be enough to raise a right to relief above the speculative level." Id. The Supreme Court has subsequently broadened the scope of this requirement, stating that only a complaint that states a plausibleclaim for relief survives a motion to dismiss." Ashcroft v. Iqbal, -- U.S. --, 129 S.Ct. 1937, 1950 (2009) (emphasis added).

Thus, after Iqbal, a district court must conduct a two-part analysis when presented with a motion to dismiss for failure to state a claim. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the Court must separate the factual and legal elements of the claim. Id. Although the Court "must accept all of the complaint's well-pleaded facts as true, [it] may disregard any legal conclusions." Id. at 210-211. Second, the Court "must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show' such an entitlement with its facts." Id. at 211 (citing Iqbal 129 S.Ct. at 1949). The determination for "plausibility" will be ""a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. at 211 (quoting Iqbal 129 S.Ct. at 1950).

As a result, "pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss." Id. at 211. That is, "all civil complaints must now set out "sufficient factual matter' to show that the claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. at 210 (quoting Iqbal, 129 S.Ct. at 1948).

However, nothing in Twombly or Iqbal changed the other pleading standards for a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and the requirements of Fed. R. Civ. P. 8 must still be met. See Phillips v. Co. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (internal citations omitted). Fed. R. Civ. P. 8 requires a showing, rather than a blanket assertion, of entitlement to relief, and "contemplates the statement of circumstances, occurrences, and events in support of the claim presented and does not authorize a pleader's bare averment that he wants relief and is entitled to it." Twombly, 550 U.S. at 555 n.3 (internal citations and quotations omitted). Additionally, the Supreme Court did not abolish the Fed. R. Civ. P. 12(b)(6) requirement that "the facts must be taken as true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on those merits." Phillips, 515 F.3d at 231(citing Twombly, 550 U.S. at 553).

LEGAL ANALYSIS

Zimmer contends that Count II and Count III of the Amended Complaint should be dismissed in their entirety. Plaintiff does not oppose dismissal of her breach of implied warranty claim (Count II) and therefore, the Court shall ...


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