United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Boston Scientific
Corporation's (“Boston Scientific”) Motion to
Dismiss (Doc. 21) and Plaintiff Felicia Davis'
(“Davis”) Response in Opposition (Doc. 33). The
matter is ripe for review.
a product liability suit about Boston Scientific's
permanent inferior vena cava filter (the “Greenfield
Filter”). The Greenfield Filter was created to prevent
pulmonary embolisms (Doc. 20 at ¶¶ 1, 29), which
occur when a blood clot travels through blood vessels like
the inferior vena cava to block one of the pulmonary arteries
in the lungs. (Doc. 20 at ¶ 20). When clots form in deep
leg veins, this condition is called deep vein thrombosis.
(Doc. 20 at ¶ 20). Patients at risk of deep vein
thrombosis or pulmonary embolisms are often treated with
permanent or retrievable inferior vena cava filters, such as
the Greenfield Filter, which trap and filter blood clots.
(Doc. 20 at ¶¶ 23, 33, 36).
alleges that studies show the beneficial effects of
implanting permanent inferior vena cava filters are offset by
recurrent deep vein thrombosis symptoms. (Doc. 20 at ¶
35). She further alleges that long-term implantation of
inferior vena cava filters can cause subsequent pulmonary
embolisms. (Doc. 20 at ¶ 29). Because of these factors,
medical device manufacturers have developed retrievable
inferior vena cava filters. (Doc. 20 at ¶¶ 35-36).
In 2010, the United States Food and Drug Administration
warned against implanting inferior vena cava filters for
extended periods of time due to their potential to cause
health complications. (Doc. 20 at ¶ 40). It released
another warning in 2014. (Doc. 20 at ¶ 42). Despite
these notifications, Davis alleges Boston Scientific
continued to market the Greenfield Filter for long-term use.
(Doc. 20 at ¶ 46).
September 2005, Davis suffered a pulmonary embolism. (Doc. 20
at 24). Based on the advice of an unnamed entity, she agreed
to have the Greenfield Filter implanted in her right common
femoral vein. (Doc. 20 at ¶¶ 25-26). A decade
later, she was hospitalized for chest pain and diagnosed with
bilateral segmental pulmonary emboli. (Doc. 20 at ¶ 28).
Almost two years after that, she was hospitalized again and
diagnosed with deep vein thrombosis. (Doc. 20 at ¶ 30).
then sued Boston Scientific in state court. (Doc. 2). After
the case was removed (Doc. 1), the Complaint was dismissed as
a shotgun pleading. (Doc. 19). Davis filed an Amended
Complaint, which deleted paragraphs that had previously
incorporated every preceding allegation and added nineteen
pages of additional allegations. (Doc. 20). The Amended
Complaint alleges the Greenfield Filter was defectively
designed and manufactured. (Doc. 20 at ¶ 59). It further
claims the Greenfield Filter was inadequately tested and had
inadequate warnings, instructions, and labeling. (Doc. 20 at
¶ 59). Based on these allegations, Davis claims Boston
Scientific is liable for: negligence (Count I), strict
liability design defect (Count II), strict liability
manufacturing defect (Count III), strict liability failure to
warn (Count IV), breach of express warranty (Count V), breach
of implied warranty of merchantability (Count VI), breach of
implied warranty of fitness (Count VII), fraudulent
misrepresentation (Count VIII), fraudulent concealment (Count
IX), negligent misrepresentation (Count X), and violations of
the Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”) (Count XI). (Doc. 20 at ¶¶
72-336). Davis also seeks punitive damages. (Doc. 20 at
¶¶ 337-339). Now, Boston Scientific moves to
dismiss. (Doc. 21).
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain a short and plain statement of a claim showing the
pleader is entitled to relief. The Rule's purpose is to
“give the defendant fair notice of what the claim is
and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
allegations are subject to heightened pleading standards
under Federal Rule of Civil Procedure 9(b), which requires a
party to “state with particularity the circumstances
constituting fraud.” This means “a plaintiff must
plead facts as to time, place, and substance of the
defendant's alleged fraud, specifically the details of
the defendant's allegedly fraudulent acts, when they
occurred, and who engaged in them.” U.S. ex rel.
Atkins v. McInteer, 470 F.3d 1350, 1357 (11th Cir. 2006)
(internal quotations omitted). Stated differently,
“[t]his means who, what, when, where, and how: the
first paragraph of any newspaper story.” Garfield
v. NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir.
2006). But “[m]alice, intent, knowledge, and other
conditions of a person's mind may be alleged
generally.” Brooks v. Blue Cross & Blue Shield
of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir.
1997).These standards serve “an important
purpose in fraud actions by alerting defendants to the
precise misconduct with which they are charged and protecting
defendants against spurious charges of immoral and fraudulent
behavior.” Id. at 1370-71 (internal quotations
Federal Rule of Civil Procedure 12(b)(6), a court may dismiss
a pleading for failure to state a claim upon which relief can
be granted. This decision hinges on the
Twombly-Iqbal plausibility standard, which requires
a plaintiff to allege sufficient facts “to raise a
reasonable expectation that discovery will reveal
evidence” to support a claim. Twombly, 550
U.S. at 556; see also Randall v. Scott, 610
F.3d 701, 708 n.2 (11th Cir. 2010). At this stage, the Court
must accept all factual allegations in a complaint as true
and take them in the light most favorable to the plaintiff.
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008). But acceptance is limited to well-pleaded factual
allegations. La Grasta v. First Union Sec., Inc.,
358 F.3d 840, 845 (11th Cir. 2004). A
“the-defendant-unlawfully harmed me accusation”
is insufficient. Iqbal, 556 U.S. at 677. “Nor
does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Id.
(internal quotations omitted).
Scientific's Motion to Dismiss is multifaceted. It argues
the Amended Complaint: (1) is an impermissible shotgun
pleading; (2) is pled improvidently or insufficiently; and
(3) fails to adequately allege punitive damages. Davis
opposes. The Court will address each argument in turn.
Scientific argues the Amended Complaint should be dismissed
as a shotgun pleading because the grounds for each claim
cannot be discerned. This argument fails. The Eleventh
Circuit has defined only four types of shotgun pleadings:
The most common type-by a long shot-is a complaint containing
multiple counts where each count adopts the allegations of
all preceding counts, causing each successive count to carry
all that came before and the last count to be a combination
of the entire complaint. The next most common type, at least
as far as our published opinions on the subject reflect, is a
complaint that does not commit the mortal sin of re-alleging
all preceding counts but is guilty of the venial sin of being
replete with conclusory, vague, and immaterial facts not
obviously connected to any particular cause of action. The
third type of shotgun pleading is one that commits the sin of
not separating into a different count each cause of action or
claim for relief. Fourth, and finally, there is the
relatively rare sin of asserting multiple claims against
multiple defendants without specifying which of the
defendants are responsible for which acts or omissions, or
which of the defendants the claim is brought against. The
unifying characteristic of all types of shotgun pleadings is
that they fail to one degree or another, and in one way or
another, to give the defendants adequate notice of the claims
against them and the grounds upon which each claim
Weiland v. Palm Beach Cty. Sheriff's Office, 792
F.3d 1313, 1321-23 (11th Cir. 2015).
the Amended Complaint differs from the original because it no
longer incorporates each preceding allegation into each
count. Still, Boston Scientific argues it remains a shotgun
pleading because Davis' addition of nineteen pages of
allegations to the text of the original Complaint makes it
difficult to understand the grounds for each claim. But that
argument does not fall within one of the Eleventh
Circuit's four shotgun pleading categories. Instead, it
goes to Rule 8(a)(2)'s requirement for a “short and
plain statement.” Fed.R.Civ.P. 8(a)(2). Under that
framework, “so long as it is minimally sufficient to
put a defendant on notice of the claims against him[, ] [a
complaint] will not fail for mere surplusage.”
Bailey v. Janssen Pharmaceutica, Inc., 288 Fed.Appx.
597, 603 (11th Cir. 2008). Though the Amended Complaint
contains surplusage, that alone does not preclude Boston
Scientific from understanding the claims lodged against it.
The Amended Complaint does not fail as a shotgun pleading or
under Rule 8(a)(2).
alleges Boston Scientific is liable for negligence. The
elements of a negligence claim are “(1) a legal duty
owed by defendant to plaintiff, (2) breach of that duty by
defendant, (3) injury to plaintiff legally caused by
defendant's breach, and (4) damages as a result of that
injury.” Estate of Rotell ex rel. Rotell v.
Kuehnle, 38 So.3d 783, 788 (Fla. 2d DCA 2010). Boston