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Douse v. Boston Scientific Corp

United States District Court, M.D. Florida, Fort Myers Division

July 23, 2018


          OPINION AND ORDER [1]

         This matter comes before the Court on Boston Scientific's Motion to Dismiss (Doc. 41), which was filed on June 4, 2018. Plaintiff Valerie Douse responded on June 18, 2018. (Doc. 43). The matter is ripe for review.


         The facts of this products liability case have already been outlined in the Court's previous Order dismissing Douse's Amended Complaint. (Doc. 39). In the interest of brevity, the Court will only recite the salient details. This case concerns Boston Scientific's permanent inferior vena cava filter (the “Greenfield Filter”), which was created to prevent pulmonary embolisms. (Doc. 40 at ¶¶ 22-23). A pulmonary embolism occurs when a blood clot travels through blood vessels to block one of the pulmonary arteries in the lungs. (Doc. 40 at ¶ 19). When clots form in deep leg veins, this condition is called deep vein thrombosis. (Doc. 40 at ¶ 19).

         In September 2003, Douse suffered a pulmonary embolism. (Doc. 40 at ¶ 23). Based on the advice of an unnamed entity, she agreed to have the Greenfield Filter implanted to prevent further blood clot-related issues. (Doc. 40 at ¶¶ 23-24) In 2017, Douse was treated for complications associated with the Greenfield Filter, and was informed that it had perforated the walls of the vein in which it had been implanted. (Doc. 40 at ¶ 27). Apparently, such injuries are commonplace among patients who have undergone the implantation of permanent inferior vena cava filters. (Doc. 40 at ¶ 28).

         Douse then sued Boston Scientific in state court. (Doc. 2). After the case was removed (Doc. 1), Boston Scientific moved to dismiss. (Doc. 3). Upon review, the Court agreed with Boston Scientific and dismissed the Complaint. (Doc. 25). Douse then filed an Amended Complaint with claims including negligence, strict liability manufacturing defect, strict liability design defect, strict liability failure to warn, breach of warranty, negligent misrepresentation, implied warranty of merchantability, implied warranty of fitness, fraudulent misrepresentation, fraudulent concealment, and consumer fraud. (Doc. 27). Boston Scientific again moved to dismiss. (Doc. 29). The Court then agreed with Boston Scientific in part and dismissed the fraud and warranty-based claims. (Doc. 39).

         Douse then filed a Second Amended Complaint. (Doc. 40). She alleges the Greenfield Filter was defectively designed and manufactured. (Doc. 40 at 16-21). She further alleges the Greenfield Filter was inadequately tested and had inadequate warnings, instructions, and labeling. (Doc. 40 at 21-26). Based on these allegations, Douse claims Boston Scientific is liable for: negligence (Count I), strict liability defective design (Count II), strict liability manufacturing defect (Count III), strict liability failure to warn (Count IV), fraudulent misrepresentation (Count V), fraudulent concealment (Count VI), and negligent misrepresentation (Count VII). (Doc. 40 at 12-41). Now, for the third time, Boston Scientific moves to dismiss. (Doc. 41).


         Pursuant to 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. Fraud allegations are subject to a heightened pleading standards under Federal Rule of Civil Procedure 9(b), which requires a party to “state with particularity the circumstances constituting fraud.” To meet this threshold, a pleading must allege

(1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud.

Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (citing Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 F.3d 1364, 1371 (11th Cir. 1997)). But “[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally.” Brooks, 116 F.3d at 1371. These standards are intended to “(1) provide defendants with sufficient notice of what the plaintiff complains to enable them to frame a response. (2) prevent fishing expeditions to uncover unknown wrongs, and (3) protect the defendant from unfounded accusations of immoral or otherwise wrongful conduct.” U.S. ex rel. Butler v. Magellan Health Servs., Inc., 101 F.Supp.2d 1365, 1368 (M.D. Fla. 2000).

         Under 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 “plead 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); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). 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).


         Boston Scientific argues Counts V, VI, and VII should be dismissed with prejudice because Douse has failed to plausibly plead her claims despite three chances to do so. (Doc. 41). Douse opposes. (Doc. 43). The Court will address each claim in turn.

         A. Fraudulent Misrepresentation

         Count V alleges Boston Scientific fraudulently misrepresented the Greenfield Filter's safety and efficacy through several avenues including its website, product brochures, product labeling and statements to Douse's healthcare providers. The elements of a fraudulent misrepresentation claim in Florida are “(1) a false statement concerning a material fact; (2) the representor's knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation.” Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010). Boston Scientific argues Douse's allegations fail to meet the heightened particularity threshold of Rule 9(b). The Court agrees.

         1. ...

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