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Kuchenbecker v. Johnson & Johnson

United States District Court, S.D. Florida, Miami Division

September 13, 2019

CORRINE KUCHENBECKER and THOMAS KUCHENBECKER, Plaintiffs,
v.
JOHNSON & JOHNSON, and ETHICON, INC. Defendants.

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

          FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE

         Plaintiffs Corrine Kuchenbecker and Thomas Kuchenbecker commenced this lawsuit against Defendants Johnson & Johnson and Ethicon, Inc., seeking compensatory, economic, and punitive damages for injuries caused by complications from a transvaginal mesh device, known as the Gynecare TVT Abbrevo System, which was implanted in Plaintiff Corrine Kuchenbecker. The Plaintiffs' core claim is that the Defendants are liable in negligence and strict liability for e defectively designing and manufacturing the Gynecare TVT Abbrevo System, and for failing to adequately warn consumers of known dangers and risks associated with using this system. Defendants moved to dismiss certain claims in the 12-count Complaint as failing to state a claim I upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). For the reasons below, Defendants' Partial Motion to Dismiss is GRANTED IN PART AND DENIED IN PART.

         I. LEGAL STANDARD

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the formal sufficiency of the allegations supporting claims for relief. Under Rule 12(b)(6), the Court "may dismiss a claim for 'failure to state a claim upon which relief can be granted.'" Tello v. Royal Caribbean Cruises, Ltd., 939 F.Supp.2d 1269, 1275 (S.D. Fla. 2013) (quoting Fed.R.Civ.P. 12(b)(6)). To survive dismissal, the Complaint "must contain 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, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 679. And those "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. When ruling on a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff and accept the plaintiffs well-pleaded facts as true. See St. Joseph's Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 954 (11th Cir. 1986).

         II. DISCUSSION

         A. COUNTS I AND III - "DEFECTIVE MANUFACTURING"

         The thrust of Plaintiffs' lawsuit is that the Defendants are liable in negligence and strict liability for defectively designing and manufacturing the Gynecare TVT Abbrevo System, and for failing to adequately warn consumers of known dangers and risks associated with using this system. Defendants request dismissal of the defective manufacturing claims in Counts I and III on grounds the Complaint amounts to "nothing more than a formulaic recitation of elements, bereft of factual support." (D.E. 5 at 4.)

         Plaintiffs' defective manufacturing claims fall into two theories of liability: negligence and strict liability. The basic elements of a negligence cause of action apply equally to products liability manufacturing defect claims grounded in negligence. See Colville v. Pharmacia & Upjohn Co. LLC, 565 F.Supp.2d 1314, 1320 (N.D. Fla. 2008). A plaintiff must allege: (1) a duty of care was owed to the plaintiff; (2) defendant breached that duty of care (i.e. negligence); and (3) the breach of that duty of care was a proximate cause of the plaintiffs injuries. Id. In addition to these elements, a plaintiff must also establish that the product at issue was "defective or unreasonably dangerous." Id. (quoting Marzullo v. Crosman Corp., 289 F.Supp.2d 1337, 1342 (M.D. Fla. 2003)). Likewise, a manufacturing defect claim grounded in strict liability requires that a plaintiff prove the product made by the manufacturer was defective or created an unreasonably dangerous condition that proximately caused the plaintiffs injury. Id. (quoting McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1258 (11th Cir. 2002)). And finally, under both theories of liability, a plaintiff must also demonstrate that "the injuries complained of were caused by a defective product whose defect existed at the time of injury and at the time in which the product left the manufacturer's control." Id. (quoting Rodriguez v. Nat'l Detroit, Inc., 857 So.2d 199, 201 (Fla. 3d DCA 2003)).

         Here, the Court finds the Complaint fails to state a plausible claim for defective manufacturing under negligence and strict liability. The closest Plaintiffs come to alleging a manufacturing defect is the allegation that Defendants failed to "manufacture the Gynecare TVT Abbrevo System so as to avoid an unreasonable risk of harm to women in whom the Gynecare TVT Abbrevo System[s] were implanted, including the Plaintiff." (D.E. 1 at ¶ 116b.) But the only factual allegations offered to support this conclusion relate to the defective design and defective warning claims. See Id. at ¶¶ 62a-62i, 74a-74r. And without pinpointing a single specific manufacturing defect (i.e. that the Gynecare TVT Abbrevo System, as manufactured, deviated from the manufacturing specifications in some way), and explaining how that defect caused any of the alleged injuries, this allegation is simply another way of alleging defective design. The Complaint does allege that the Gynecare TVT Abbrevo System was "defective in its manufacture and construction when it left the hands of [Defendants] in that it deviated from Gynecare TVT Abbrevo System specifications." Id. at ¶ 125. But, again, the Complaint fails to specify how the device implanted in the Plaintiff deviated from manufacturing specifications. Without more, the Court simply cannot draw the reasonable inference that Defendants defectively manufactured the Gynecare TVT Abbrevo System that was implanted in the Plaintiff.

         Therefore, even taking these allegations as true and viewing them in the light most favorable to Plaintiffs, the Court finds that Plaintiffs fail to allege a plausible manufacturing defect claim grounded in negligence or strict liability. Accordingly, Count I is DISMISSED to the extent it asserts a manufacturing defect claim, [1] and Count III is DISMISSED in its entirety.

         B. COUNT IV - "STRICT LIABILITY - DEFECTIVE PRODUCT"

         In Count IV, Plaintiffs assert a strict liability claim for "defective product" on grounds the Gynecare TVT Abbrevo System was "defective and unreasonably dangerous to foreseeable consumers, patients, and users." Id. at ¶¶ 128-32. Defendants argue Count IV should be dismissed because Florida does not recognize "defective product" as a separate cause of action. Rather, Defendants assert that manufacturers can be held strictly liable for a defective product "by virtue of a design defect, a manufacturing defect, or an inadequate warning." (D.E. 5 at 5.)

         Plaintiffs argue that Florida law has long recognized a claim for strict products liability based upon a defective product. (D.E. 10 at 4 (citing West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla. 1976).) While Plaintiffs are correct that West recognized the doctrine of strict liability for defective products, see West, 336 So.2d at 87-88, subsequent case law makes clear that a plaintiff prevails on a defective product claim by showing the product is defective "by virtue of a design defect, a manufacturing defect, or a defective warning," Ferayorni v. Hyundai Motor Co., 711 So.2d 1167, 1170 (Fla. 4th DCA 1998) (citing Brown v. Glade & Grove Supply, Inc., 647 So.2d 1033, 1035 (Fla. 4th DCA 1994)) (emphasis added). In other words, a defect in design, manufacture, or warning is a species of a strict product liability claim. Moreover, Plaintiffs' three sentence paragraph in support of Count IV does not cite any authority establishing that Florida courts recognize a strict liability "defective product" claim as a cause of action independent from strict liability defective design, manufacture, or warning claims. (See generally D.E. 10 at 4.) Therefore, the Court concludes that Plaintiffs' "defective product" claim is not a standalone cause of action under Florida law.

         Furthermore, to the extent Florida law recognizes a strict liability "defective product" claim, as alleged, this claim is duplicative of Plaintiffs' strict liability claims for defective design (Count II) and for defective warning (Count V). "Duplicative claims are those that stem from identical allegations, that are decided under identical legal standards, and for which identical relief is available." Manning v. Carnival Corp., No. 12-22258-CIV, 2012 WL 3962997, at *2 (S.D. Fla. Sept. 11, 2012) (quoting Wultz v. Islamic Republic of Iran,755 F.Supp.2d 1, 81 (D.D.C. 2010)). "To promote judicial ...


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