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Pierre v. Medtronic, Inc.

United States District Court, E.D. Louisiana

April 23, 2018


         SECTION "B"(1)


         Defendants 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.


         On 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.

         Plaintiffs 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.

         Second, 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.

         Third, 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.

         Fourth, 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.

         Fifth, 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.


         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 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 omitted).

         Plaintiff 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, ”[1](2) “in design, ”[2] (3) because there is an inadequate warning, [3] or (4) because it failed to “conform to an express warranty.”[4] 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.

         Plaintiffs 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.

         Plaintiffs 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. ΒΆ 17. Therefore, Plaintiffs ...

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