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Burningham v. Wright Medical Group, Inc.

United States District Court, D. Utah

January 22, 2018

DALE BURNINGHAM and LANA BURNINGHAM, Plaintiffs,
v.
WRIGHT MEDICAL GROUP, INC., WRIGHT MEDICAL TECHNOLOGY, INC., Defendants.

          MEMORANDUM DECISION AND ORDER

          Jill N. Parrish United States District Court Judge

         Before the Court are Defendants' Motion to Dismiss and Motion to Strike (ECF No. 39). For the reasons below, the Court grants the Motion to Dismiss in part and grants the Motion to Strike in its entirety. Additionally, the Court will certify to the Utah Supreme Court questions regarding the proper application of the unavoidably unsafe exception in strict products liability actions involving implanted medical devices.

         I. BACKGROUND

         Plaintiffs Dale and Lana Burningham originally filed a complaint in the Superior Court of the State of California for the County of Los Angeles on December 10, 2013. Plaintiffs' complaint alleged that Mr. Burningham sustained injuries from implanted hip devices designed, manufactured, marketed, and sold by Wright Medical Technology.

         The Burninghams' case was originally one of hundreds brought against the Wright Defendants in Judicial Council Coordinated Proceeding No. 4710 (the “JCCP”). However, in April 2016, Plaintiffs moved to release their case from the JCCP, remand it to the regular docket of the court to complete discovery, and set it for trial. Defendants did not oppose that motion, but they did move to dismiss pursuant to the doctrine of forum non conveniens. In support of their motion to dismiss, Defendants represented to the California court that, if the action were dismissed, they would consent to the jurisdiction of this Court for purposes of this matter. They also agreed to treat the re-filed action in this Court as if filed on the date it was originally filed in California for statute of limitations purposes.

         On November 15, 2016, the California court granted the motion to dismiss, and Plaintiffs filed a complaint in this Court on Febuary 8, 2017. Their complaint alleges three Causes of Action involving the failure of three implanted medical devices: (1) a Profemur Modular Neck implanted in Mr. Burningham's left hip, fractured on February 3, 2012 and revised on February 6, 2012; (2) a metal-on-metal failure of Conserve Components implanted in Mr. Burningham's right hip, revised on February 6, 2012; and (3) a metal-on-metal failure of Conserve Components implanted in Mr. Burningham's left hip, revised on March 27, 2013.

         II. MOTION TO DISMISS

         Defendants do not move the Court to dismiss the complaint in its entirety. Rather, they argue that a majority of Plaintiffs' claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The Court will briefly review the legal standard and evaluate the relevant claims in turn.

         A. Legal Standard

         Rule 8(a)(2) requires that pleadings contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6) permits defendants to challenge the sufficiency of such pleadings on the grounds that they do not state a claim upon which relief can be granted. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Burnett v. Mortg. Elec. Registration Sys., 706 F.3d 1231, 1235 (10th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         In evaluating the sufficiency of the pleadings, the Court accepts as true all well-pleaded factual allegations and views them in the light most favorable to the plaintiff. Id. at 1235. However, “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice to state a claim that can survive a motion to dismiss.” Iqbal, 556 U.S. at 678. Therefore, “[d]etermining whether a complaint states a plausible claim for relief is a ‘context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'” Burnett, 706 F.3d at 1236, quoting Iqbal, 556 U.S. at 679. “Pleadings that do not allow for at least a ‘reasonable inference' of the legally relevant facts are insufficient.” Id. (quoting Iqbal, 556 U.S. at 678). This standard does not, however, require plaintiffs to plead specific facts. The Tenth Circuit has explained:

The Twombly/Iqbal standard is a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do. In other words, Rule 8(a)(2) still lives. Under Rule 8, specific facts are not necessary; the statement need only give the defendant fair notice of what the claim is and the grounds upon which it rests.

Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotations, citations, and alterations omitted).

         B. ...


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