United States District Court, E.D. Louisiana
DENISE PIERRE, ET AL.
MEDTRONIC, INC., ET AL.
ORDER AND REASONS
Medtronic Inc. and Covidien LP. filed a Motion to Dismiss
(Rec. Doc. 25) Plaintiffs' First Amended Complaint (Rec.
Doc. 19). Plaintiffs Denise Pierre and Floyd Baham timely
filed an opposition. Rec. Doc. 27. Defendants then sought,
and were granted, leave to file a reply. Rec. Doc. 33. For
the reasons discussed below, IT IS ORDERED
that the Defendants' motion to dismiss (Rec. Doc. 25) is
DENIED with respect to Plaintiffs'
construction or composition defect, design defect, and
redhibition claims and GRANTED with respect
to all other claims. Plaintiffs shall have twenty-one (21)
days to amend to address the deficiencies identified in this
Order and Reasons. If Plaintiffs do not correct those
deficiencies within twenty-one (21) days, the deficient
claims will be DISMISSED WITH PREJUDICE.
BACKGROUND AND PROCEDURAL HISTORY
November 17, 2016, Plaintiff Denise Pierre underwent surgery
to correct a ventral hernia. See Rec. Doc. 19 ¶
9. The surgeons used a piece of Parietex ProGrip Self
Fixating Mesh to close the hole in Pierre's abdominal
wall. See Id. The piece of mesh purportedly measured
20 centimeters by 15 centimeters. See Id. Pierre was
readmitted to the hospital on December 4, 2016, because the
mesh had allegedly become infected and begun to detach from
Pierre's abdominal wall. See Id. ¶ 10.
Pierre alleges that she received treatment for complications
from the mesh in June and July of 2017, and that she
continued to suffer from these complications when the First
Amended Complaint was filed in December 2017. See
Id. ¶¶ 11-13. Pierre's father, Floyd
Baham, is also a plaintiff and seeks damages for loss of
consortium. See Id. ¶ 111.
lodge various allegations against Defendants about the safety
of the mesh. See Rec. Doc. 19. First, Plaintiffs
allege that the mesh used in Pierre's surgery was
improperly sterilized, in violation of Defendants'
sterilization procedures, before being sent to the hospital
where Pierre's surgery took place. See Id.
¶¶ 58, 59. Plaintiffs' complaint states that,
because the mesh was improperly sterilized, Pierre developed
a severe infection following her surgery. See Id.
¶¶ 60, 62.
Plaintiffs allege that Defendants failed to adequately warn
about infection and the chance that the mesh would contract
after surgery. See Id. ¶¶ 66, 71.
Plaintiffs claim that, if Defendants had adequately warned
Pierre's surgeon, the surgeon would not have used the
mesh. See Id. ¶¶ 72, 75.
Plaintiffs allege that two design features of the mesh were
unnecessarily dangerous. According to Plaintiffs, the mesh
was made out of polyester and incorporated “thousands
of micro-grips” to secure the mesh once it was
implanted. See Id. ¶ 83. This design allegedly
caused unnecessary pain when the mesh contracted after
surgery, see Id. ¶ 83, and facilitated
infection by lowering the body's pH around the mesh,
see Id. ¶ 57. The complaint asserts that
“practical and feasible alternative designs” were
available to Defendants when they manufactured the mesh that
was used in Pierre's surgery. Id. ¶ 86.
Plaintiffs allege that Defendants expressly warranted that
the mesh was “adequately tested, ” “safe
and fit for its intended purposes, was of merchantable
quality, . . . and did not produce dangerous side effects . .
. .” Id. ¶ 91. Plaintiffs further allege
that the previously-discussed design and production defects
violated these express warranties. See Id.
¶¶ 92, 95. Plaintiffs finally posit that they
relied on Defendant's express warranties when deciding to
use the mesh and would not have done so otherwise. See
Id. ¶ 96.
Plaintiffs allege that the previously discussed design and
production defects rendered the mesh useless, such that
Plaintiffs would not have purchased the mesh if they had
known of the defects. See Id. ¶¶ 100-02.
Defendants moved to dismiss all claims for failure to state a
claim. See Rec. Doc. 25.
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 or her
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 one other state law claim. 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
have adequately pled that Defendants are manufacturers under
the LPLA. 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.” La. Rev. Stat. § 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). Plaintiffs allege that “Defendants
manufactured, supplied, distributed, formulated, prescribed,
marketed, and sold” the Parietex ProGrip Self Fixating
Mesh. See Rec. Doc. 19 ¶ 5; see also
Rec. Doc. 19 ¶¶ 6, 7, 17. Therefore, Plaintiffs
have stated facts that, if true, establish that Defendants
are manufacturers under the LPLA.
have also adequately pled that Pierre was injured by a
reasonably anticipated use of Defendants' product.
Plaintiffs allege that Pierre was injured when
Defendants' mesh was used during her hernia surgery.
See Id. ¶¶ 9-13. Plaintiffs also allege
that Defendants intended the mesh to be used in hernia repair
surgery. See Id. ¶ 17. Therefore, Plaintiffs