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Pellegrin v. C.R. Bard

United States District Court, E.D. Louisiana

June 20, 2018


         SECTION “R” (4)



         Defendants Medtronic, Inc. and Covidien, LP move to dismiss plaintiff's complaint.[1] For the following reasons, the Court grants the motion.

         I. BACKGROUND

         This case arises out of an allegedly defective product manufactured by defendants.[2] Plaintiff Kimberly Pellegrin alleges she was diagnosed on October 23, 2014 with gastritis, gastroparesis, and diabetes.[3] Plaintiff asserts that on October 25, 2014, she was rushed to the hospital and further diagnosed with a “perforated duodenal ulcer.”[4] She alleges she was also suffering from tachycardia, hypotension, sepsis, acute kidney injury, abnormal coagulation profile, and gastrointestinal bleeding.[5] That same day, plaintiff underwent surgery to repair the perforated ulcer and was implanted with defendants' allegedly defective product, Parietex Composite Mesh.[6] She does not allege the purpose for which the product was implanted.

         Confusingly, plaintiff's opposition to defendants' motion provides a different medical diagnosis and different dates for plaintiff's surgery. The Court notes that the complaint appears to be a near-verbatim copy of two other complaints recently filed against defendants. See No. 17-6075 (E.D. La. June 23, 2017); No. 17-11836 (E.D. La. Nov. 6, 2017). Plaintiff now states in her opposition that she underwent “hernia repair surgery” in March 2014 and again in July 2015, and that during both surgeries she was “repaired” with defendants' product.[7] The Court relies only on the factual information provided in the complaint. See Goodwin v. Hous. Auth. of New Orleans, No. 11-1397, 2013 WL 3874907, at *9 n. 37 (E.D. La. July 25, 2013) (noting that it is “inappropriate to raise new facts and assert new claims in an opposition to a motion to dismiss”). In any event, the alternative information provided by plaintiff in her opposition would not alter the Court's analysis or conclusions. It does, however, undermine the credibility of her counsel, who is obligated under Rule 11 not to file a pleading containing factual assertions that do not have evidentiary support or will not have such support after discovery. See Fed. R. Civ. P. 11(b)(3).

         Plaintiff alleges that defendants' product caused her to experience “severe and permanent bodily injuries, ” including “excruciating abdominal pain and swelling, difficulty walking, and physical pain.”[8] She alleges that at some point she underwent subsequent surgery “to remove and/or repair the damage” cause by defendants' product.[9] Plaintiff alleges that defendants' product contains “numerous defects, ” and specifically states that the product “abrades tissues” and does not perform its intended purpose.[10] Plaintiff does not allege that she experienced tissue abrasion.

         On November 14, 2017, plaintiff sued Medtronic, Covidien, C.R. Bard, Inc., and Davol, Inc. for damages. The complaint brings claims under various provisions of the Louisiana Products Liability Act (LPLA), La R. S. §§ 9:2800.51, et seq., and for redhibition, La. Civ. Code arts. 2520, et seq. On March 6, 2018, plaintiff voluntarily dismissed all claims against C.R. Bard and Davol.[11] The remaining defendants now move to dismiss plaintiff's complaint.[12]


         To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. See Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

         A legally sufficient complaint must establish more than a “sheer possibility” that the plaintiff's claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Id. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal relevant evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. The claim must be dismissed if there are insufficient factual allegations to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (2007).


         Defendants move to dismiss the complaint for two reasons. First, defendants argue plaintiff's claims are prescribed under the applicable statute of limitations. Second, defendants argue that plaintiff has failed to plead sufficient factual support to satisfy the pleading standard required by Iqbal and Twombly.

         A. Prescription

         Plaintiff's products liability claims are subject to the general one-year prescriptive period applicable to delictual actions under Louisiana law. La. Civ. Code art. 3492. The prescriptive period “commences to run from the day injury or damage is sustained.” Id. Under Louisiana law, “damages are said to be sustained ‘when the damage has manifested itself with sufficient certainty to support accrual of a cause of action.'” Jenkins v. Bristol-Myers Squibb Co., 689 Fed.Appx. 793, 795 (5th Cir. 2017) (quoting Cole v. Celotex Corp., 620 So.2d 1154, 1156 (La. 1993)); see also Grenier v. Med. Eng'g Corp., 243 F.3d 200, 203-04 (ruling that the plaintiff's cause of action under the LPLA accrued once she had “suffered some physical injury” because of the defendant's allegedly defective product). “Prescription is an affirmative defense, and defendants bears the burden of its proof at trial.” Ducre v. Mine Safety Appliances, Inc., 963 F.2d 757, 760 (5th Cir. 1992). If a complaint reveals on its face that the prescriptive period has run, “the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period.” Younger v. Marshall Indus., Inc., 618 So.2d 866, 869 (La. 1993); see also Eastin v. Entergy Corp., 865 So.2d 49, 54 (La. 2004).

         The complaint alleges that plaintiff was implanted with defendants' product over three and a half years ago during surgery on October 25, 2014, [13]and that she experienced “severe and permanent bodily injuries” because of the implant.[14] Plaintiff also asserts she has undergone “subsequent surgeries” to repair the damage defendants' product has caused.[15]Importantly, the complaint does not provide any indication of when plaintiff first experienced her alleged injuries, or when plaintiff's “subsequent surgeries” were performed. Accordingly, the Court cannot determine from the face of the complaint when plaintiff's injuries manifested and her cause of action accrued. See Jenkins, 689 Fed.Appx. at 795. Because the prescriptive period commences on the day the cause of action accrues, the Court cannot find plaintiff's claims facially prescribed.

         Defendant argues that plaintiff's claim is facially prescribed because the prescriptive period started on the date of plaintiff's surgery over three and a half years ago.[16] But that is not correct. Plaintiff's cause of action accrued, and thus the prescriptive period commenced, when plaintiff “first suffered some physical injury.” Grenier, 243 F.3d 200, 203-04. Plaintiff does not provide a date on which she first experienced her alleged injuries. The Court cannot infer from other information provided in the complaint whether the onset of plaintiff's injuries was immediate upon the implantation of the product or developed later. Nor can the Court determine when she had revision surgery.

         Plaintiff's redhibition claim is subject to a one-year prescriptive period beginning from the date the buyer discovers the alleged defect. La. Civ. Code art. 2534(A)(1), (B). As with plaintiff's claims under the LPLA, the redhibition claim is not facially prescribed because the complaint does not allege when plaintiff first experienced her injuries.

         Plaintiff should note, however, that it is only the vagueness of her complaint that prevents the Court from finding her claims facially prescribed. Plaintiff alleges she underwent surgery more than three years before filing this complaint, during which she was implanted with defendants' allegedly defective product. Because plaintiff does not allege when and how her injuries manifested themselves, her date of injury cannot be ascertained. In any amended complaint, the Court directs plaintiff to include specific allegations explaining what injuries she suffered and when she first experienced those injuries.

         B. Sufficiency of the Pleading

         1. The Louisiana Products Liability Act

         In Louisiana, the LPLA provides the exclusive theories of liability of a manufacturer for damages caused by its product. La. R. S. § 9:2800.52. A plaintiff may not recover from a manufacturer in tort under any theory of liability that is not set forth in the LPLA. Id.; see also Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 261-62 (5th Cir. 2002). The statute provides that a manufacturer “shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.” La. R. S. § 9:2800.54(A).

         A product is unreasonably dangerous for the purposes of the statute “if and only if” it is unreasonably dangerous either (1) in construction or composition, (2) in design, (3) because of inadequate warning, or (4) because of nonconformity to an express warranty. Id. § 9:2800.54(B)(1-4). Thus, the LPLA limits the plaintiff to four theories of recovery: construction/composition defect, design defect, inadequate warning, and breach of express warranty. The complaint includes causes of action for each of these theories of recovery. The Court next considers whether plaintiff's allegations satisfy the LPLA.

         a. ...

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