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Peggy Doughtery, Individually and As Parent and Natural Guardian of v. C.R. Bard

July 18, 2012


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


Currently before me is defendants' motion to dismiss plaintiff's first amended complaint. As is more thoroughly explained below, several of plaintiff's claims are barred by Pennsylvania law and must be dismissed with prejudice. But I will accede to plaintiff's request to file a second amended complaint in order to attempt to rehabilitate the remaining claims.


On September 26, 2011, plaintiff, Peggy Doughtery, filed her original complaint on behalf of herself and her minor child D.J., alleging that D.J. sustained injuries after he was implanted with a PerFix Plug, a medical device manufactured and distributed by defendants for use in the surgical repair of inguinal hernias. Doughtery claims that various defects in the PerFix Plug caused D.J.'s injuries and that defendants were aware of these defects. Doughtery filed her first amended complaint on January 5, 2012, after defendants moved to dismiss the original complaint. Doughtery asserts three claims for strict liability, alleging a manufacturing defect (count I), a design defect (count II), and a failure to warn (count III). She also asserts a claim for negligence (count IV). Next, Doughtery alleges that defendants breached the implied warranty of merchantability, the implied warranty of fitness for a particular purpose, and an express warranty (count V). And finally, she alleges that defendants violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Stat. Ann. §§ 201-1 et seq. (count VI).

Defendants have filed this motion to dismiss the first amended complaint under Federal Rule of Civil Procedure 12(b)(6).


In deciding a motion to dismiss under Rule 12(b)(6), courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation marks and citation omitted). But "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements" will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint must contain sufficient factual matter to be plausible on its face. Id. "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"; a sheer possibility that a defendant acted unlawfully is not sufficient. Id.


In seeking dismissal of Doughtery's first amended complaint, defendants argue, among other things, that the complaint is "impermissibly vague and lacks the factual detail" required under Iqbal. (Mem. of Law in Supp. of Defs.' Mot. to Dismiss 1st Am. Compl. ("Defs.' Br." at 2.) I agree and will therefore grant defendants' motion to dismiss. But Doughtery requests that she be granted leave to amend her complaint a second time to add necessary factual details and to correct and strengthen her claims,*fn1 and I will also grant her request.

Rule 15(a)(2) provides that a court "should freely give leave [to amend a complaint] when justice so requires." Fed. R. Civ. P. 15(a)(2). "Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). I find no evidence of bad faith, dilatory motive, undue delay, or prejudice here; nor do defendants suggest differently. Defendants contend only that the filing of the second amended complaint attached to the response would be futile because certain of Doughtery's claims are clearly barred by law.

As more fully discussed below, I agree that Doughtery's strict-liability claims, as well as her claim for breach of the implied warranty of merchantability, to the extent that they are based on an alleged design defect or failure to warn, are barred under Pennsylvania law.*fn2 Doughtery's claim for breach of the implied warranty of fitness for a particular purpose is similarly barred. No amendment would be able to salvage these claims, and thus they must be dismissed with prejudice.*fn3

That leaves Doughtery's strict-liability manufacturing-defect claim in count I, her negligence claim in count IV, and her claims for breach of the implied warranty of merchantability (to the extent that it is based on a manufacturing defect) and breach of express warranty in count V. Because these claims, if properly pleaded with sufficient factual allegations, could potentially survive a motion to dismiss, I will allow Doughtery to amend her complaint to allege additional facts and cure the deficiencies in her pleading of these claims, provided that she can do so in compliance with the limits of Rule 11.

I turn now to defendants' arguments that Doughtery's strict-liability and breach-of-warranty claims are barred under Pennsylvania law.

A. Strict Liability (Counts I--III)

Defendants argue that Doughtery's strict-liability claims fail as a matter of law because manufacturers and sellers of prescription medical devices, such as the PerFix Plug, are not subject to strict liability under Pennsylvania law. Pennsylvania law recognizes three different types of defects that can give rise to a strict-liability claim: a design defect, a manufacturing defect, and a warning defect (i.e., a failure to warn). See Phillips v. A-Best Prods. Co., 665 A.2d 1167, 1170 (Pa. 1995). In this case, Doughtery advances all three theories of strict liability. I agree with defendants that Doughtery's strict-liability claims based on an alleged design defect and an alleged failure to warn are not cognizable under Pennsylvania law. But, contrary to defendants' contention, Doughtery's strict-liability claim based on an alleged manufacturing defect is not clearly barred.

The Pennsylvania Supreme Court has adopted section 402A of the Restatement (Second) of Torts, which imposes strict liability for products sold "in 'a defective condition unreasonably dangerous to the user or consumer.'" Phillips, 665 A.2d at 1170 (quoting section 402A). Comment k of this section, however, limits liability for "unavoidably unsafe" products, such as prescription drugs. See Restatement (Second) of Torts § 402A cmt. k (1965).*fn4 The comment recognizes that "[t]here are some products, which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use," and provides that such products, "properly prepared, and accompanied by proper directions and warning, [are] not defective . . . [or] unreasonably dangerous." Id. Adopting and applying comment k, the Pennsylvania Supreme Court has held that, "assuming proper preparation and warning, a manufacturer of ...

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