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Weathers v. Depuy Synthes, Inc.

United States District Court, E.D. Louisiana

July 5, 2019

RONALD WEATHERS
v.
DEPUY SYNTHES, INC., ET AL

         SECTION: “B” (3)

          ORDER AND REASONS

         Before 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;

         IT IS FURTHER ORDERED that DePuy's motion to dismiss (Rec. Doc. 14) is DISMISSED AS MOOT; and

         IT 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 below.

         FACTS AND PROCEDURAL HISTORY

         This is 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 id.

         On 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.[1] 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 fees.

         LAW AND ANALYSIS

         A. Motion to Dismiss Standard

         Rule 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).

         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 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.

         B. SMH's Motion to Dismiss (Rec. Doc. 12)

         Pursuant 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.

         C. DePuy's Motion to Dismiss Amended ...


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