Hon. Jan E. DuBois.
Plaintiff Ramona Shelley brings this suit for injuries allegedly caused by an implanted surgical mesh, Prolene TM soft mesh, manufactured and distributed by defendants Ethicon, Inc. and Johnson & Johnson for use in repairing ventral hernias. The Complaint sets forth seven separate claims against both defendants: (1) negligence, (2) strict liability–product defect, (3) strict liability–failure to warn, (4) breach of express warranty, (5) breach of implied warranty, (6) negligent misrepresentation, and (7) fraudulent misrepresentation. Defendants move to dismiss certain of Shelley’s claims.
II. LEGAL STANDARD
Rule 12(b) (6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of “failure to state a claim upon which relief can be granted” may be raised by motion. In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court “accept[s] all factual allegations as true, [and] construe[s] the complaint in the light most favorable to the plaintiff . . . .” Phillips v. County of Allegheny, 515 F.3d 224, 231, 233 (3d Cir. 2008) (internal quotations omitted).
“To survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise a right to relief above the speculative level . . . .’” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff's allegations must show that defendant's liability is more than “a sheer possibility.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
Defendants move to dismiss certain of Shelley’s claims for two reasons. First, defendants argue that as Johnson & Johnson is merely a holding company, all claims asserted against Johnson & Johnson should be dismissed. Second, defendants claim that Shelley’s non-negligence causes of action fail to state a claim upon which relief can be granted under Pennsylvania law and should be dismissed. The Court addresses these arguments in turn.
1. Claims Against Johnson & Johnson
First, defendants aver that Johnson & Johnson is “a holding company that does not design, develop, manufacture, market, promote or sell any product.” (Mot. at 5.) Specifically, defendants argue that Johnson & Johnson did not manufacture Prolene TM soft mesh and that it therefore owed no duty of care to Shelley and that all claims asserted against Johnson & Johnson should be dismissed. In support of this contention, defendants cite the Declaration of Douglas K. Chia, Secretary of Johnson & Johnson. Defendants concede that “[c]onsideration of this declaration requires conversion of certain portions of Defendants’ motion to one for summary judgment, ” pursuant to Fed.R.Civ.P. 12(d). (Mot. at 3.)
The Court rejects defendants’ argument with respect to Johnson & Johnson. The parties have not conducted any discovery, and as such, treatment of the instant Motion as one for summary judgment would be inappropriate at this stage in the litigation. Accordingly, the Court does not consider the Declaration submitted by defendants. Further, “at this early stage, factual determinations [as to corporate status] are not appropriate.” Apple Computer, Inc. v. Unova, Inc., 2003 WL 22928034, *6 (D. Del. Nov. 25, 2003).
Plaintiff has alleged that both defendants “designed, manufactured, labeled, tested, distributed, advertised, marketed, promoted and/or sold by defendants . . . . ” (Compl. at ¶16.) Plaintiff thus states a plausible claim for liability on the part of Johnson & Johnson. Defendants’ motion on this ground is denied.
2. Non-Negligence Claims
Defendants next argue that plaintiff’s non-negligence claims, those in Counts II through V, and VII, are improper as a matter of Pennsylvania law. As a threshold matter, the Court’s analysis is based on Hahn v. Richter, 543 Pa. 558, 563 (Pa. 1996), which in turn is based on the Restatement (Second) of Torts. However, the Pennsylvania Supreme Court has recently granted allocatur on the question of whether Pennsylvania will adopt the strict liability analysis of the Restatement (Third) of Torts. See Tincher v. Omega Flex, Inc., 64 A.3d 626 (Pa. 2013). In the event the Pennsylvania Supreme Court adopts the strict liability analysis of the Restatement ...