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Baptist v. C.R. Bard, Inc.

United States District Court, E.D. Louisiana

April 17, 2018

BRUCE C. BAPTIST
v.
C.R. BARD, INC., ET AL.

         SECTION "B"(5)

          ORDER AND REASONS

         Defendants 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.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On 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.

         In his 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.

         Plaintiff 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.

         After 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.

         LAW AND ANALYSIS

         To 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 omitted).

         Plaintiff alleges four claims under the Louisiana Products Liability Act (LPLA) and four other state law claims.[1] 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] (2) “in design, ”[3] (3) because there is an inadequate warning, [4] or (4) because it failed to “conform to an express warranty.”[5] 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 dangerousness.

         Plaintiff's 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 LPLA.

         Plaintiff 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 anticipated use.

         Plaintiff's 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).

         Plaintiff 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 ...


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