United States District Court, E.D. Louisiana
ORDER AND REASONS
the Court are defendant St. Tammany Parish Hospital Service
District No. 2 d/b/a Slidell Memorial Hospital's
(“SMH”) motion to dismiss (Rec. Doc. 12),
defendants DePuy Synthes, Inc. and DePuy Synthes Sales,
Inc.'s (“DePuy”) motion to dismiss (Rec. Doc.
14), plaintiff Ronald Weathers' response (Rec. Doc. 23),
DePuy's motion to dismiss plaintiff's amended
complaint (Rec. Doc. 24), plaintiff's response (Rec. Doc.
25), and DePuy's reply (Rec. Doc. 28). Accordingly,
IT IS ORDERED that SMH's motion to
dismiss (Rec. Doc. 12) is GRANTED and
plaintiff's claims against SMH are DISMISSED
WITHOUT PREJUDICE with the right to renew pending
review by a Louisiana medical review panel;
IS FURTHER ORDERED that DePuy's motion to
dismiss (Rec. Doc. 14) is DISMISSED AS MOOT;
IS FURTHER ORDERED that DePuy's motion to
dismiss plaintiff's amended complaint (Rec. Doc. 24) is
DENIED in part and GRANTED in part, as explained
AND PROCEDURAL HISTORY
a personal injury lawsuit involving health care personal
injury, pharmaceutical personal injury, and product
liability. On August 15, 2017, at SMH, plaintiff underwent
surgery to repair a fracture to his right hip/femur.
See Rec. Doc. 12-1 at 2. To repair the fracture, the
surgeon installed a hip implant into plaintiff's body.
See id. The hip implant is known as the Trochanteric
Fixation Nail System (“TFN System”). See
Rec. Doc. 21 at 1. Plaintiff purchased it from SMH. See
id. at 3. The TFN System consists of a series of
cannulated nails, blades, screw, and end caps as well as
locking bolts and screws. See id. at 2. DePuy
manufactures, markets, and sells the TFN System. See
August 15, 2018, plaintiff filed a lawsuit in the
Twenty-Second Judicial District for the Parish of St. Tammany
against SMH and DePuy. See Rec. Doc. 12-1 at 2. On
October 1, 2018, DePuy filed a notice of removal. See
id. Soon thereafter, SMH and DePuy both filed motions to
dismiss for failure to state a claim. See Rec. Doc.
Nos. 12, 14. Plaintiff sought leave to amend his complaint.
See Rec. Doc. 20. On November 19, 2018, plaintiff
filed an amended complaint no longer listing SMH as a
defendant. See Rec. Doc. 21. Plaintiff
alleges the TFN System shifted within his body after
installation and injured him. See Rec. Doc. 24-1 at
3. Specifically, the shift occurred because one of the
device's locking bolts were either manufactured or
defectively designed. See id. From DePuy, plaintiff
seeks, inter alia, to recover the purchase price of
the TFN System, damages for medical treatment, lost wages,
ongoing disability, pain and suffering, and attorney's
Motion to Dismiss Standard
12(b)(6) of the Federal Rules of Civil Procedure allows a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. To survive a
motion to dismiss under Rule 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)). In other words, a plaintiff's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 556 U.S. at 556).
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
Iqbal, 556 U.S. at 678) (some internal citations and
quotation marks omitted). Plaintiff must “nudge [his
or her] claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570.
SMH's Motion to Dismiss (Rec. Doc. 12)
to the Louisiana Medical Malpractice Act
(“LMMA”), La. Rev.Stat.
§40:1231.8(b)(1)(a)(i), no action alleging medical
malpractice claims against a qualified healthcare provider
may be commenced in any court before being presented to a
LMMA medical review panel. If a plaintiff files a medical
malpractice action against a qualified healthcare provider
before bringing his claims in front of a LMMA medical review
panel, his action is considered premature and may be
dismissed. See Garber v. Oppenheimer, 2005 U.S.
Dist. LEXIS 11593, at *6 (E.D. La. June 2, 2005). Here,
Plaintiff concedes that his action against SMH is premature.
See Rec. Doc. 23 at 1. Furthermore, Plaintiff filed
an amended complaint not listing SMH as a defendant.
See Rec. Doc. 21. Therefore, SMH is no longer a part
of this lawsuit. Plaintiff's claims against SMH are
dismissed without prejudice. See Garber, 2005 U.S.
Dist., at *7.
DePuy's Motion to Dismiss Amended ...