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Soutner v. Covidien, LP

United States District Court, M.D. Pennsylvania

August 13, 2019

COVIDIEN, LP, Defendant


          Kane Judge.

         Before the Court is Defendant Covidien, LP (“Defendant”)'s motion to dismiss Plaintiffs Ronald Soutner and Janelle Soutner's (“Plaintiffs”) second amended complaint (Doc. No. 24), pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 25). For the reasons provided herein, the Court will grant Defendant's motion.

         I. BACKGROUND[1]

         Defendant is a Delaware limited partnership headquartered in Mansfield, Massachusetts, engaged in the design, manufacture, and sale of medical devices, including various surgical meshes. (Doc. No. 24 ¶¶ 3-5.) One such mesh, Parietex ProGrip Mesh, used in hernia repair surgeries, was implanted in Plaintiff Ronald Soutner (“Soutner”) during a surgical procedure on December 20, 2011, and is the subject of the instant action. (Id. ¶ 4.)

         Hernias are caused by the “penetration of fatty tissue, intestine, or organs through a weakened or compromised location in muscle of [sic] connective tissue.” (Id. ¶ 13.) As stated in the second amended complaint, hernia repairs are “common surgeries” - they are performed in the United States more than one million times each year - and inguinal hernia repairs make up approximately 80% of those procedures. (Id. ¶ 17.) Surgical mesh, including Defendant's Parietex ProGrip Mesh, is used during hernia repair surgeries to “strengthen the repair.” (Id. ¶ 19.) Defendant's Parietex ProGrip Mesh is intended for permanent implantation in a patient's body. (Id. ¶ 6.)

         According to Plaintiffs, unlike most hernia mesh products, which are polypropylene based, Defendant's Parietex ProGrip Mesh is made of monofilament polyester, which Plaintiffs allege is “flimsy” compared to polypropylene. (Id. ¶¶ 31, 42.) Plaintiffs aver that, as a result, surgeons reported difficulty in handling Defendant's Parietex ProGrip Mesh during hernia repair surgeries. (Id. ¶ 43.) Plaintiffs state that to remedy this issue, Defendant added a layer of collagen to the Parietex ProGrip Mesh, which was intended to make the mesh easier to handle during surgeries. (Id. ¶ 44.) In addition, Plaintiffs allege that Defendant attached micro-grips to the Parietex ProGrip Mesh to prevent the mesh from tearing. (Id. ¶¶ 46-47.) Plaintiffs further aver that the micro-grips have caused patients who have been implanted with the Parietex ProGrip Mesh to experience “debilitating pain” due to the Parietex ProGrip Mesh “contracting and pulling on all of the tissues and nerves upon which it is attached.” (Id. ¶ 48.)

         On December 20, 2011, Soutner underwent surgery to repair an inguinal hernia on the left side of his groin. (Id. ¶ 50.) During this procedure, Defendant's Parietex ProGrip Mesh was implanted into Soutner to “reinforce tissue affected by the hernia.” (Id. ¶¶ 50, 52.) At some point following the procedure, Soutner experienced severe inflammation in the region where the procedure was performed. (Id. ¶ 55.) According to Plaintiffs, the inflammation was so severe that Soutner's vas deferens was “destroyed.” (Id.) On October 7, 2013, Soutner underwent an additional surgical procedure, at which time Defendant's Parietex ProGrip Mesh was removed. (Id. ¶ 53.) During the second procedure, it was determined that “Defendant's Parietex ProGrip Mesh integrated to the surrounding muscles where it had to be dissected off.” (Id. ¶¶ 53-54.) During this second procedure, Soutner's vas deferens was removed. (Id. ¶ 55.) Plaintiffs allege that, following the second procedure, Soutner has experienced and continues to experience groin pain and life without his vas deferens. (Id. ¶ 57.) Plaintiffs further allege that as a direct and proximate result of the implanted mesh products, Soutner “suffered, is suffering, and/or will continue to suffer the abovementioned injuries, including the risk of malfunction, decreased efficacy, recurrent hernia, perforation of tissue and/or organs, adherence to tissue/organs, infection, nerve damage, subsequent surgeries, and other complications.” (Id. ¶ 65.)

         Plaintiffs allege that Soutner, through the exercise of reasonable diligence, could not have discovered his injury was caused by Defendant's mesh product because his physicians “were not informed by Defendant that these injuries could result from the implantation of Defendant[']s faulty mesh product.” (Id. ¶ 59.) Plaintiffs further allege that Soutner “did not know and could not have known that he was injured and that his injuries were caused by Defendant's defective product until he saw a commercial in 2017 which enlightened him to the fact that he was, in fact, injured and that his injuries could have been caused by the conduct of another.” (Id. ¶ 62.) Plaintiffs also allege that Soutner is “not employed in the medical field and was not privy to the same sophisticated medical information as Defendant, who negligently and fraudulently concealed the fact that these injuries could, and did in fact, result from its defective mesh product.” (Id. ¶ 61.)

         After experiencing the injuries described supra, Soutner commenced this action by filing a complaint against Defendant on October 27, 2017, in the Court of Common Pleas of Dauphin County, Pennsylvania. (Doc. No. 1 at 10.) In his initial complaint, Soutner asserted the following ten claims against Defendant: strict liability based on defective design and manufacture (Count I); strict liability due to a failure to warn (Count II); negligence (Count III); breach of warranty (Count IV); fraudulent misrepresentation (Count V); negligent misrepresentation (Count VI); unjust enrichment (Count VII); breach of express warranty (Count VIII); breach of implied warranty of merchantability (Count IX); and breach of implied warranty of fitness (Count X). (Id. at 21-36.) On November 28, 2017, Defendant removed the action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. (Id. at 2.) Soutner filed an amended complaint on January 12, 2018, adding his wife Janelle Soutner as a plaintiff and asserting additional claims for punitive damages (Count XI), and loss of consortium (Count XII). (Doc. No. 8 at 25-27.) On February 26, 2018, Defendant filed a motion to dismiss all of the aforementioned claims pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 12), and filed a brief in support thereof on March 12, 2018 (Doc. No. 15). Plaintiffs filed their brief in opposition to Defendant's motion to dismiss on March 27, 2018 (Doc. No. 18), to which Defendants filed a brief in reply on April 10, 2018 (Doc. No. 19). The Court issued an Order and accompanying Memorandum on October 26, 2018, denying Defendant's motion and giving Plaintiff's leave to amend their complaint for a second time. (Doc. Nos. 22, 23.)

         On November 21, 2018, Plaintiffs filed a second amended complaint, adding new allegations related to the applicable statutes of limitations. (Doc. No. 24.) On December 5, 2018, Defendant filed a motion to dismiss Plaintiffs' second amended complaint (Doc. No. 25), and a filed a brief in support thereof on December 19, 2018 (Doc. No. 30). On January 10, 2019, Plaintiffs filed a brief in opposition (Doc. No. 37), to which Defendant filed a reply on January 24, 2019 (Doc. No. 39). Having been fully briefed, Defendant's motion to dismiss is ripe for disposition.


         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The legal standards governing pleading practice in federal court have shifted to a “more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.” See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To avoid dismissal, all civil complaints must set out “sufficient factual matter” to show that the claim is facially plausible. Id. The plausibility standard requires more than a mere possibility that the defendant is liable for the alleged misconduct. Indeed, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Fed.R.Civ.P. 8(a)(2)). “Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         The United States Court of Appeals for the Third Circuit has identified the following steps a district court must take when evaluating the sufficiency of a complaint's allegations as tested against a Rule 12(b)(6) motion: (1) identify the elements a plaintiff must plead to state a claim; (2) discard any conclusory allegations contained in the complaint “not entitled” to the assumption of truth; and (3) determine whether any “well-pleaded factual allegations” contained in the complaint “plausibly give rise to an entitlement to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citation and quotation marks omitted).

         In evaluating whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all factual allegations in the complaint, and construe all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). A court “need not credit a complaint's ‘bald assertions' or ‘legal conclusions' when deciding a motion to dismiss, ” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997), and must disregard any “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Additionally, a court may not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In deciding a Rule 12(b)(6) motion, a court may consider, in addition to the facts alleged on the face of the complaint, any exhibits attached to the complaint, “any matters incorporated by reference or integral to the claim, items subject to judicial notice, [and] matters of public record.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (citation and quotation marks omitted).

         The Federal Rules of Civil Procedure require that affirmative defenses be pleaded in the answer. Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (citing Fed.R.Civ.P. 8(c)). The Third Circuit, however, “permits a limitations defense to be raised by a motion under Rule 12(b)(6), but only if ‘the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.'” Id. (quoting Hanna v. U.S. Veterans' Admin. Hosp., 514 F.2d 1092 (3d Cir. 1975)). Where a complaint “is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would inequitable or futile.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).


         Defendant argues that Plaintiffs' six tort-based claims[2] and five contract-based claims[3]are barred by operation of the applicable statutes of limitations (Doc. No. 30 at 1), and Plaintiffs' claim for punitive damages should be dismissed because Plaintiffs have not sufficiently alleged that Defendant acted with reckless indifference (id. at 53). Defendant further argues that even if Plaintiffs' claims were not time-barred, all of the claims should be dismissed because they are either precluded by Pennsylvania law or pleaded inadequately. (Id. at 1.) Plaintiffs argue that either Pennsylvania's discovery rule or the doctrine of fraudulent concealment tolls the applicable limitations period and renders their claims timely. (Doc. No. 37 at 1.) Plaintiffs also state that they have sufficiently pleaded their claims against Defendant. (Id.)

         A. ...

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