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Ripple v. Davol, Inc.

United States District Court, S.D. Florida

May 31, 2017

JEAN L. RIPPLE, Plaintiff,
v.
DAVOL, INC. & C.R. BARD, INC., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

          ROBIN L. ROSENBERG UNITED STATES DISTRICT JUDGE.

         This cause is before the Court on Defendants' Motion to Dismiss [DE 19]. The motion has been fully briefed. For the reasons set forth below, the Motion is granted in part and denied in part.

         Plaintiff initiated this suit on October 19, 2016. Although Plaintiff brought several counts against Defendants, the gravamen of Plaintiff's complaint was that Defendants manufactured a defective, unsafe product (a medical device) that injured Plaintiff. Defendants filed a motion to dismiss. In response, Plaintiff amended her complaint. Plaintiff's Amended Complaint contains the following counts: Negligence (Count I), Strict Liability (Count II), Failure to Warn (Count III), Intentional Infliction of Emotional Distress (Count IV), Negligent Infliction of Emotional Distress (Count V), Breach of Implied Warranty (Count VI), Negligent Misrepresentation (Count VII), and Fraud (Count VIII). Defendants filed a second motion to dismiss targeted at Plaintiff's Amended Complaint and that is the motion presently before the Court.

         Defendants argue that Plaintiff's Amended Complaint should be dismissed on several different grounds. Defendants' arguments may be grouped into the following categories: (1) Plaintiff's Amended Complaint does not generally conform to federal pleading standards, (2) Plaintiff fails to state a claim for strict products liability and negligence, (3) Plaintiff fails to state a claim for failure to warn, (4) Plaintiff fails to state a claim for infliction of emotional distress, (5) Plaintiff fails to state a claim for breach of warranty, and (6) Plaintiff fails to meet the heightened pleading requirements for fraud and negligent misrepresentation. Each argument is addressed in turn.

         1. Federal Pleading Standards

         Defendants argue generally that Plaintiff's Amended Complaint does not conform to federal pleading requirements because the Amended Complaint does not contain enough factual detail. The Court disagrees-Plaintiff's thirty-nine page complaint contains enough factual detail that, viewing all inferences in Plaintiff's favor, the complaint complies with the requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). On this issue, Defendants argue that Plaintiff has not sufficiently alleged a product defect and that a defect proximately caused injuries to Plaintiff. The Court rejects this argument because, viewing all inferences in Plaintiff's favor, Plaintiff has properly alleged a defect in the product manufactured by Defendants which proximately caused her injuries. Plaintiff alleges, for example:

The Bard CK Hernia Patch, including the Bard CK Patch implanted in Plaintiff, presents and constitutes an unreasonable risk of danger and injury in the following respects:
a. it may malfunction after being implanted;
b. the rigid plastic ring may break;
c. in response to body forces the Bard CK Patch may distort, buckle or warp;
d. it was not properly manufactured;
e. the Bard CK Patch was defectively designed;
f. oxidation and degradation of the Bard CK Patch components could cause a chronic ...

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