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Hamblen v. Davol, Inc.

United States District Court, M.D. Florida, Tampa Division

December 15, 2017

BARBARA HAMBLEN and HERBERT HAMBLEN, Plaintiffs
v.
DAVOL, INC. and C.R. BARD, INC., Defendants.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE

         This cause is before the Court pursuant to Defendants Davol, Inc. and C. Bard Inc.'s Motion to Dismiss, in Part, Plaintiffs' Amended Complaint (Doc. # 18), which was filed on October 10, 2017. Plaintiffs Barbara Hamblen and Herbert Hamblen filed a Response in Opposition to the Motion (Doc. # 23) on October 23, 2017. For the reasons that follow, the Motion is denied.

         I. Background

         On December 14, 2005, Ms. Hamblen had an incisional hernia repaired by Dr. John Manubay at the Pine Brook Medical Center in Brooksville, Florida. (Doc. # 15 at ¶ 42). Dr. Manubay used a Large Circle Bard® Composix® Kugel® Hernia Patch. (Id. at ¶ 43). The Large Circle Bard® Composix® Kugel® Hernia Patch “is designed for the repair of ventral and inguinal hernias.” (Id. at ¶ 20). Defendants' Large Circle Bard® Composix® Kugel® Hernia Patch “has two layers of polypropylene mesh, a layer of expanded polytetrafluoroethylene (‘ePTFE') and a single rigid plastic polyethylene terephthalate ring.” (Id. at ¶ 23).

         The Patch implanted in Ms. Hamblen was unreasonably dangerous, according to Plaintiffs, because “it may malfunction after being implanted; the rigid plastic ring may break; in response to body forces the Bard CK Patch may distort, buckle, or warp; it was not properly manufactured; [it] was defectively designed; [and its] components could cause a chronic inflammatory response.” (Id. at ¶ 10).

         Defendants issued a product recall covering the Large Circle Bard CK Patch in January of 2007. (Id. at ¶ 64). Ms. Hamblen indicates that she “suffered years of severe abdominal pain and sought treatment from multiple doctors to identify the cause of the pain and to find relief. She was ultimately seen by Dr. Marc Polecritti who diagnosed her abdominal wall pain to be caused by her Bard CK Hernia Patch.” (Id. at ¶ 67). Dr. Polecritti removed the mesh from Ms. Hamblen's abdomen in an operation that occurred on July 10, 2013. (Id. at ¶ 68). Her doctor opines that “to a reasonable degree of medical probability, that the memory recoil ring in Ms. Hamblen's Bard CK Patch was fractured and this break was a contributing cause of the injuries suffered by Ms. Hamblen.” (Id. at ¶ 70).

         Plaintiffs claim that Defendants omitted information about the “risks, dangers, and disadvantages” of the product, and “marketed, advertised, promoted, sold and distributed” the product “as safe, ” when in fact, Defendants “knew or should have know” that the product “was not safe.” (Id. at ¶ 74).

         On July 3, 2017, Plaintiffs Barbara Hamblen and Herbert Hamblen filed a Complaint against Defendants Davol, Inc. and C. Bard Inc. (Doc. # 1) and filed an Amended Complaint (Doc. # 15) on September 26, 2017. The Amended Complaint contains the following six counts: negligence (count 1), strict liability - design and/or manufacturing defect (count 2), failure to warn (count 3), negligent misrepresentation (count 4), fraud - fraudulent misrepresentation and fraudulent nondisclosure (count 5), and loss of consortium (count 6).

         At this juncture, Defendants move for the dismissal of counts 4 and 5 of the Amended Complaint. (Doc. # 18). Plaintiffs have filed a response in opposition to the Motion to Dismiss and the Motion is ripe for review.

         II. Legal Standard

         On a motion to dismiss, this Court accepts as true all of the factual allegations in the complaint and construes them in the light most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further, this Court favors the plaintiff with all reasonable inferences from the allegations in the complaint. Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990) (“On a motion to dismiss, the facts stated in [the] complaint and all reasonable inferences therefrom are taken as true.”). However, the Supreme Court explains that:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Further, courts are not “bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

         In accordance with Twombly, Federal Rule of Civil Procedure 8(a) calls “for 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, 663 (2009) (quoting Twombly, 550 U.S. at 570). A plausible claim for relief must include “factual content [that] allows the ...


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