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Richard Esposito v. I-Flow Corporation et al

October 24, 2011


The opinion of the court was delivered by: Tucker, J.


October ___, 2011

Presently before this Court are the Motion of Defendants APP Pharmaceuticals, LLC and Abraxis Bioscience, Inc. (collectively, "APP" or the "APP Defendants") to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 21), the Motion of I-Flow Corporation ("I-Flow") to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 27), the Motion of Abbott Laboratories ("Abbott") and Hospira, Inc. to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and Local Rule 7.1 (Doc. 30), Plaintiff's Responses, respectively, thereto (Docs. 31, 32, 33), and Defendant Abbott and APP's Replies (Docs. 41, 42). This Court has jurisdiction pursuant to 28 U.S.C. § 1332 as there is complete diversity of citizenship*fn1 and the amount in controversy exceeds $75,000.00 exclusive of interest and costs. Venue is proper under 28 U.S.C.§ 1391(a)(2). Upon consideration of the parties' motions with briefs, exhibits and declarations, this Court will grant Defendants' Motions to Dismiss all counts.


This case arises from injuries suffered by Plaintiff following a shoulder surgery performed on August 8, 2008. (Am. Compl. ¶ 15.) The surgery was necessitated by an automobile accident and was performed in an unspecified location in Pennsylvania. (Am. Compl. ¶¶ 15, 18.) At the conclusion of his surgery, Plaintiff had pain pump catheters, which injected him with continuous doses of pain relief medication, inserted into his shoulder. (Am. Compl. ¶¶ 18, 19.) Subsequent to these events, Plaintiff developed complications including the "inability to raise his arm above shoulder level, arthritis/chondrolysis . . . . [and] narrowing of the joint space of his shoulder." (Am. Compl. ¶¶ 17, 19.) Arthritis/chondrolysis is the complete or nearly complete loss of cartilage in the shoulder joint, which Plaintiff alleges to have suffered due to the injections of the medications via the pain pump.*fn2 (Am. Compl. ¶¶ 19, 20.) Plaintiff also alleges to have suffered other side effects, including, but not limited to "other severe personal injuries, which are permanent and lasting in nature, physical pain and mental anguish, diminished enjoyment of life, medical, health, incidental and related expenses, the need for ongoing medical treatment, monitoring and/or medications, loss of earnings and earning potential and the fear of developing other health consequences." (Am. Compl. ¶ 26.) Plaintiff did not discover that these injuries were a result of the 2008 surgery until July 26, 2010 when additional surgery was performed. (Am. Compl. ¶ 27.) Plaintiff now faces the prospect of shoulder replacement surgery. (Am. Compl. ¶¶ 17, 21.)

Plaintiff alleges that the pain pump inserted into his shoulder was manufactured and distributed by Defendant I-Flow, and was filled with medication manufactured by Defendant Abbott, "or in the alternative by other defendants." (Am. Compl. ¶ 16.) Plaintiff further alleges that none of the Defendants warned Plaintiff or his surgeon about the risks associated with using the pain pump or pain pump medication, and that the surgeon used the pain pump and administered the pain pump medication in the manner intended and instructed by Defendants. (Am. Compl. ¶ 23.) Plaintiff submits that he justifiably relied on, and was induced by, the misrepresentations and active concealment of Defendants of the risks associated with their products. (Am. Compl. ¶ 25.)

Plaintiff, in his First Amended Complaint filed on October 28, 2010, alleges the following ten counts against all Defendants collectively: (1) fraudulent concealment; (2) strict liability; (3) breach of implied warranty of merchantability; (4) breach of implied warranty of fitness for a particular purpose; (5) negligent failure to warn; (6) negligence; (7) negligent misrepresentation; (8) breach of express warranty; (9) fraud; and (10) punitive damages. Plaintiff requests judgment against Defendants in an amount in excess of $150,000.00, plus delay damages, interest, and costs.


Motion to Dismiss Pursuant to Federal Rule 12(b)(6)

On a motion to dismiss for failure to state a claim pursuant to FED. R. CIV. P. 12(b)(6), the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium Antitrust Litig., 214 F.3d 395, 397-98 (3d Cir. 2000). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000).

While a court will accept well-pled allegations as true for the purposes of the motion, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The United States Supreme Court has recognized 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. 544, 555 (2007) (alteration in original). In Twombly, the Court made clear that it would not require a "heightened fact pleading of specifics," but only "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A "pleader is required to 'set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist.'" Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation omitted).

In 2009, the United States Supreme Court revisited the requirements for surviving a 12(b)(6) motion to dismiss in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). In Iqbal, the Court made clear that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements [will] not suffice" to defeat a Rule 12(b)(6) motion to dismiss. 129 S. Ct. at 1949. "[O]nly a complaint that states a plausible claim for relief [will] survive[] a motion to dismiss." Id. at 1950.

In light of the decision in Iqbal, the Third Circuit set forth a two-part analysis to be applied by district courts when presented with a 12(b)(6) motion. First, the court must separate the legal elements and factual allegations of the claim, with the well-pleaded facts accepted as true but the legal conclusions disregarded. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Second, the court must determine whether the facts alleged in the complaint demonstrate that the plaintiff has a "plausible claim for relief." Id. at 211 (citation omitted). If the court can only infer the mere possibility of misconduct, the complaint must be dismissed because it has alleged-but has failed to show-that the pleader is entitled to relief. Id. Motion to Dismiss Pursuant to Federal Rule 9(b) FED. R. CIV. P. 9(b) requires that in all averments of "fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." "The purpose of Rule 9(b) is to provide notice of the 'precise misconduct' with which defendants are charged" in order to give them an opportunity to respond meaningfully to a complaint, "and to prevent false or unsubstantiated charges." Rolo v. City Investing Co. Liquidating Trust, 155F.3d 644, 658 (3d Cir. 1998) (quoting Seville Indus. Machinery v. Southmost Machinery, 742 F.2d 786, 791 (3d Cir. 1984). To satisfy Rule 9(b), a plaintiff must "plead with particularity the 'circumstances' of the alleged fraud." Id. Rule 9(b) "requires plaintiffs to plead 'the who, what, when, where, and how: the first paragraph of any newspaper story.'" In re Advanta Corp. Sec. Litig., 180 F.3d 525, 534 (3d Cir. 1999) (quoting DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990)).

Plaintiffs need not, however, "plead the 'date, place or time of the fraud,' so long as they use an 'alternative means of injecting precision and some measure of substantiation into their allegations of fraud.'" Rolo, 155F.3d at 658 (quoting Seville Indus. Machinery, 742 F.2d at 791). The Third Circuit has cautioned that courts should "apply the rule with some flexibility and should not require plaintiffs to plead issues that may have been concealed by ...

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