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Brocato v. Depuy Orthopaedics, Inc.

United States District Court, E.D. Louisiana

February 25, 2015

LAURIE BROCATO,
v.
DePUY ORTHOPAEDICS, INC., ET AL., Section

ORDER AND REASONS

IVAN L.R. LEMELLE, District Judge.

I. NATURE OF MOTION AND RELIEF SOUGHT

Before the Court is Defendants', DePuy Orthopaedics, Inc. and Johnson & Johnson, ("Defendants") Motion to Dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) (Rec. Doc. 8). Plaintiff opposes the instant motion. (Rec. Doc. 18).

II. FACTS AND PROCEDURAL HISTORY

Plaintiff, Laurie Brocato, is a citizen of the State of Louisiana. (Rec. Doc. 1 at 2). Defendant DePuy Orthopaedics, Inc. is a corporation organized under the laws of the State of Indiana, with its principal place of business in Warsaw, Indiana. (Rec. Doc. 1 at 2). Defendant Johnson & Johnson is a corporation organized under the laws of the State of New Jersey, with its principal place of business in New Brunswick, New Jersey. (Rec. Doc. 1 at 2).

Plaintiff filed the instant suit alleging products liability claims under the Louisiana Products Liability Act, La. Rev. Stat. ann. § 9:2800.51, et seq., (the "LPLA") in the Civil District Court for the Parish of Orleans on July 24, 2014. (Rec. Doc. 1). Defendants filed a notice of removal on November 14, 2014, invoking this Court's federal diversity subject matter jurisdiction pursuant to 28 U.S.C. § 1332. (Rec. Doc. 1).

Plaintiff's petition alleges that on March 20, 2014, she underwent knee replacement surgery in both her left and right knees. (Rec. Doc. 8 at 2). She further alleges that DePuy Smartset GHV Bone Cement, manufactured by Defendants, was used in both operations. (Rec. Doc. 8 at 2). Plaintiff claims that following her surgeries, she experienced pain in both knees, which required her to undergo a total revision surgery in her left knee on November 11, 2014, and that she presently contemplates a similar revision in the right knee. (Rec. Doc. 8 at 2). According to Plaintiff, her complications were caused by defects in Defendants' bone cement which caused loosening of her tibial implant from its cement mantle. (Rec. Doc. 1-1 at 3). Thus, Plaintiff seeks to recover damages for the revision surgeries, as well as for: (1) significant harm, conscious pain and suffering, physical injury and bodily impairment; (2) significant mental anguish, emotional distress and loss of quality of life, continued physical limitations, pain, injury, damages, harm, and future mental and emotional distress; and (2) medical expenses and other economic harm, including loss of income. (Rec. Doc. 1 at 4).[1]

Defendants move to dismiss Plaintiff's claims under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons that follow, IT IS ORDERED that Defendants' Motion GRANTED IN PART, AND DENIED IN PART.

III. CONTENTIONS OF MOVANT

Defendants argue Plaintiff has failed, in the context of the instant Motion to Dismiss, to allege sufficient factual content to bring her allegations beyond the realm of the merely conclusory. Thus, Defendants argue, Plaintiff's Complaint fails to satisfy the requirements of federal pleading standards as prescribed in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

IV. CONTENTIONS OF OPPONENTS

In opposition to dismissal, Plaintiff sought and was granted leave to file an Amended Complaint (Rec. Doc. 21), which, Plaintiff argues, succeeds in allowing her LPLA claims to hurdle the standards of Rule 12(b)(6).

V. MOTION TO DISMISS STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. Such a motion is rarely granted because it is viewed with disfavor. See Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997) (quoting Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982)).

When reviewing a motion to dismiss, courts must accept all well-pleaded facts as true and view them in the light most favorable to the non-moving party. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). However, "[f]actual 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). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Gonzales v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)(quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009))(internal quotation marks omitted). The Supreme Court in Iqbal explained that Twombly promulgated a "two-pronged approach" to determine whether a complaint states a plausible claim for relief. Iqbal, 129 S.Ct. at 1950. First, courts must identify those pleadings that, "because they are no more than conclusions, are ...


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