United States District Court, E.D. Louisiana
BRUCE C. BAPTIST
C.R. BARD, INC., ET AL.
ORDER AND REASONS
filed a Motion to Dismiss Plaintiff's Complaint for
failure to state a claim. Rec. Doc. 7. Plaintiff timely filed
an opposition. Rec. Doc. 18. For the reasons discussed below,
IT IS ORDERED that the motion to dismiss
(Rec. Doc. 7) is DENIED with respect to
Plaintiff's inadequate warning and redhibition claims and
GRANTED with respect to all other claims.
Plaintiff shall have twenty-one (21) days to amend his
complaint to address the deficiencies identified in this
Order and Reasons. If Plaintiff does not correct those
deficiencies within twenty-one (21) days, the deficient
claims will be DISMISSED WITH PREJUDICE.
BACKGROUND AND PROCEDURAL HISTORY
November 11, 2015, Plaintiff Bruce Baptist underwent surgery
to repair an inguinal hernia. See Rec. Doc. 15
¶ 6. Plaintiff's surgeon inserted PerFix Mesh, a
product allegedly manufactured by Defendants C. R. Bard, Inc.
and Davol Inc., into Plaintiff's body during the first
surgery. See Id. ¶¶ 6, 8. On October 16,
2017, Plaintiff suffered “inflammation, pain and
recurrence requiring additional surgery[, ]” allegedly
because of the mesh used during his surgery. See Id.
¶ 7. On November 17, 2017, Plaintiff brought suit under
the Louisiana Products Liability Act (LPLA), in addition to
other state law causes of action, for the injuries he
allegedly suffered from Defendants' mesh. See
Rec. Doc. 1. Plaintiff later amended his complaint to
incorporate additional factual allegations, but did not add
new claims or parties. See Rec. Doc. 15.
Amended Complaint, Plaintiff alleges that the mesh used in
his surgery is made of polypropylene. See Id.
¶¶ 9, 11. Defendants allegedly manufacture the mesh
by assembling multiple sheets of mesh on top of each other
into a single, multi-layer, piece of mesh. See Id.
The holes in the mesh are allegedly one millimeter across.
See Id. ¶ 30.
further alleges that the mesh used in his surgery suffered
from various infirmities-some due to the design of the mesh
and others due to Defendants' failure to properly
manufacture the mesh. Plaintiff alleges that these
infirmities were defects under the LPLA. First, Plaintiff
claims that the mesh did not conform to Defendants'
specifications because it was made of “substandard,
adulterated, and non-medical grade polypropylene.”
Id. ¶ 24. Second, Plaintiff alleges that
Defendants' mesh was more dangerous than necessary
because the holes were too small and mesh included too many
layers. See Id. ¶¶ 30, 31. These
characteristics allegedly allowed bacteria to grown in the
mesh after surgery and made the mesh more irritating to
surrounding tissue. See Id. Third, Plaintiff alleges
that the “Instructions for Use” of the mesh did
not adequately warn of risks posed by the mesh, particularly
that the risk of adverse side effects was greater than with
other types of mesh. See Id. ¶¶ 37-41.
Fourth, Plaintiff alleges that Defendants breached an express
warranty that the mesh “was a safe and effective
treatment for hernias, reasonably fit for intended purposes,
and of merchantable quality.” Id. ¶ 46.
In addition to his claims under the LPLA, Plaintiff also
brought claims for redhibition, negligence, and breach of
implied warranties. See Id. ¶¶ 50-68.
Plaintiff filed his initial Complaint, but before Plaintiff
filed his Amended Complaint, Defendants filed the instant
motion to dismiss, arguing that Plaintiff's factual
allegations are insufficient to state a claim for relief.
See Rec. Doc. 15. Plaintiff timely filed an
Opposition. See Rec. Doc. 18.
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a plaintiff's complaint “must
contain ‘enough facts to state a claim to relief that
is plausible on its face.'” Varela v.
Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). When deciding whether a plaintiff has met his
burden, a court “accept[s] all well-pleaded factual
allegations as true and interpret[s] the complaint in the
light most favorable to the plaintiff, but
‘[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements' cannot
establish facial plausibility.” Snow Ingredients,
Inc. v. SnoWizard, Inc., 833 F.3d 512, 520 (5th Cir.
2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)) (some internal citations and quotation marks
alleges four claims under the Louisiana Products Liability
Act (LPLA) and four other state law claims. To prevail under
the LPLA, a plaintiff must show that (1) the defendant
manufactured the product, (2) the plaintiff's damage was
“proximately caused by a characteristic of the product,
” (3) the characteristic made the product
“unreasonably dangerous, ” and (4) the
plaintiff's damage resulted from a reasonably anticipated
use of the product. See La. Rev. Stat. §
9:2800.54(A). A product can be unreasonably dangerous (1)
“in construction or composition, ” (2) “in
design, ” (3) because there is an inadequate
warning,  or (4) because it failed to “conform
to an express warranty.” See Id. §
9:2800.54(B). A plaintiff bears the burden of proving all
elements of an LPLA claim. Id. Plaintiff has brought
an LPLA claim under each theory of unreasonable
Amended Complaint satisfies the two preliminary requirements
of the LPLA, that the defendants be manufacturers and the
plaintiff be injured by a reasonably anticipated use of the
product. A manufacturer includes an “entity who is in
the business of [producing, making, fabricating,
constructing, [or] designing] a product for placement into
trade or commerce.” Id. § 9:2800.53(1).
The definition also encompasses an “entity who labels a
product as his own or who otherwise holds himself out to be
the manufacturer of the product.” Id. §
9:2800.53(1)(a). Plaintiff alleges that the mesh used in his
surgery was branded as a Bard product. See Rec. Doc.
15 ¶ 2(A). Plaintiff also alleges that “Defendants
researched, designed, developed, tested, manufactured,
labeled, [and] packaged” the mesh. See Id.
¶ 8. Therefore, Plaintiff has stated facts that, if
true, establish that Defendants are manufacturers under the
has also adequately pled that he was injured by a reasonably
anticipated use of Defendants' product. Plaintiff alleges
that he was injured when Defendants' mesh was used during
Plaintiff's hernia surgery. See Id. ¶ 6.
Plaintiff also alleges that Defendants intended the mesh to
be used in hernia repair surgery. See Id. ¶ 8.
Therefore, Plaintiff has alleged that any injuries he
suffered from the mesh were the result of a reasonably
first LPLA claim is for a “construction or
composition” defect. See Rec. Doc. 15
¶¶ 20-25 (citing La. Rev. Stat. § 9:2800.55).
“A product is unreasonably dangerous in construction or
composition if, at the time the product left its
manufacturer's control, the product deviated in a
material way from the manufacturer's specifications or
performance standards for the product or from otherwise
identical products manufactured by the same
manufacturer.” La. Rev. Stat. § 9:2800.55. A
plaintiff “must show not only what a manufacturer's
specifications or performance standards are for a particular
product, but how the product in question materially deviated
from those standards so as to render it unreasonably
dangerous.” Lyles v. Medtronic Sofamor Danek, USA,
Inc., 871 F.3d 305, 311 (5th Cir. 2013). A deviation is
material when it “increases the propensity for injury .
. . .” Roman v. W. Mfg., Inc., 691 F.3d 686,
698 (5th Cir. 2012). A plaintiff must also show how the
alleged deviation caused the plaintiff's injury. See
Rayford v. Karl Storz Endoscopy Am., Inc., No. 15-2835,
2016 WL 4398513, at *4-5 (W.D. La. June 22, 2016).
fails to state a claim for a “construction or
composition” defect. Plaintiff alleges that
Defendants' mesh used “substandard, adulterated,
and non-medical grade polypropylene, ” which “did
not conform to Defendants' specifications or performance
standards.” See Rec. Doc. 15 ¶ 24. Even
assuming that this statement sets out Defendants'
specifications or performance standards, which is a stretch
given the lack of factual detail, Plaintiff's allegations
do not show that the deviation was material or that the
deviation was the cause of Plaintiff's injury. Plaintiff
repeatedly states that all “[p]olypropylene is
toxic when inserted into the human body.” Id.
¶ 11; see also Id. ¶¶ 12-13.
Plaintiff does not offer any facts to suggest that the
“substandard, adulterated, and non-medical grade
polypropylene” allegedly used in Defendants' mesh
was more dangerous than the allegedly toxic polypropylene
that Defendants intended to use in the mesh. Nor does
Plaintiff offer any facts to suggest that the use of
allegedly “substandard, adulterated, and non-medical
grade polypropylene” caused different or ...