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Jorgensen v. Wright Medical Group Inc.

United States District Court, D. Utah

November 5, 2018

DIANE JORGENSEN, Plaintiff,
v.
WRIGHT MEDICAL GROUP, INC., a Delaware corporation, and WRIGHT MEDICAL TECHNOLOGY, INC., a Delaware corporation, Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S PARTIAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT AND MOTION TO STRIKE

          TED STEWART DISTRICT JUDGE

         This matter is before the Court on Wright Medical Technology, Inc.'s Partial Motion to Dismiss Plaintiff's Complaint and Motion to Strike.[1] Defendant seeks dismissal of Plaintiff's first, fifth, sixth, eighth, ninth, and tenth causes of action and seeks to strike Plaintiff's request for punitive damages and prejudgment interest. For the reasons discussed below, the Court will grant the Motion in part and deny it in part.

         I. BACKGROUND

         Plaintiff brings this action alleging that she sustained injuries stemming from allegedly defective hip implant devices manufactured and sold by Wright Medical Technology, Inc. (the “Wright Hip System”). Plaintiff alleges she underwent a right total hip replacement in June 2009 and later underwent a left total hip replacement in 2010. In both surgeries, Plaintiff used a Wright Hip System.

         Plaintiff alleges that because of the design, manufacture, and composition of the device, Plaintiff's Wright Hip System detached, disconnected, created metallic debris, and/or loosened from Plaintiff's acetabulum. This allegedly caused debilitating pain, decreased mobility, and emotional distress. Plaintiff then underwent revision surgery to remove the Wright Hip implants.

         Plaintiff's Complaint asserts ten causes of action. Defendant seeks partial dismissal of Plaintiff's Complaint.

         II. STANDARD OF REVIEW

         In considering a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), all well-pleaded factual allegations, as distinguished from conclusory allegations, are accepted as true and viewed in the light most favorable to Plaintiff as the nonmoving party.[2] Plaintiff must provide “enough facts to state a claim to relief that is plausible on its face, ”[3] which requires “more than an unadorned, the-defendant-unlawfully harmed-me accusation.”[4] “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'”[5]

         “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.”[6] As the Court in Iqbal stated,

only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.[7]

         In considering a motion to dismiss, a district court not only considers the complaint, “but also the attached exhibits, ”[8] and “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.”[9] The Court “may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.”[10]

         Rule 12(f) of the Federal Rules of Civil Procedure states that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Motions to strike under Rule 12(f) are viewed with disfavor by the federal courts and are infrequently granted.[11] Such motions “should be denied unless the challenged allegations have no possible relation or logical connection to the subject matter of the controversy and may cause some form of significant prejudice to one or more of the parties to the action.”[12]

         III. DISCUSSION

         Defendant seeks dismissal of Plaintiff's first, fifth, sixth, eighth, ninth, and tenth causes of action and seeks to strike Plaintiff's request for punitive damages and prejudgment interest. The Court will discuss each issue in turn.

         A. STRICT LIABILITY - MANUFACTURING DEFECT

         Utah law recognizes three types of product defects: “manufacturing flaws, design defects, and inadequate warnings regarding use.”[13] To succeed on a manufacturing defect claim, “a plaintiff must prove that (1) the manufacturing defect made the product unreasonably dangerous, (2) the defect was present at the time of the product's sale, and (3) the defect caused the plaintiff's injury.”[14] “[A] manufacturing defect claim, by its nature, involves a deviation from the product's design specifications, to the injury or potential injury of a user. The gravamen of the tort is not defective design but defective execution of the design.”[15]

         Plaintiff alleges “that the Wright Hip System implanted in Plaintiff was defectively manufactured because it differed from the manufacturer's design and specifications, or from typical units of the same product line.”[16] This is a conclusory statement that fails to satisfy the pleading standard. Plaintiff does not identify what component of the system was defectively manufactured, how it differed from the design and specifications, or how that deviation caused her injuries. Without such allegations, Plaintiff's claim must be dismissed. In response to the Motion to Dismiss, Plaintiff argues that her claim is sufficient because a properly functioning artificial hip would not have caused the damages she alleges she suffered. Even accepting this, it fails to demonstrate that the product was allegedly defective as a result of a manufacturing flaw. Therefore, the Court will dismiss this cause of action.

         B. NEGLIGENT FAILURE TO RECALL/RETROFIT

         Plaintiff's fifth cause of action alleges that Defendants were negligent in failing to recall, retrofit, or warn patients of physicians about the alleged dangers of the Wright Hip System. Defendant argues that there is no basis under Utah law to impose a post-sale duty to retrofit or recall. Plaintiff failed to respond to Defendant's Motion as to this claim and it will be dismissed.

         C. BREACH OF EXPRESS WARRANTY

         To prove that there was an express warranty, Plaintiff must show that Defendants made affirmations or promises, including product descriptions, that became a basis of the bargain.[17]Here, Plaintiff alleges generally that Defendants made certain representations to physicians and patients about the safety and efficacy of the Wright Hip System.[18] What is missing from Plaintiff's Complaint, however, is any allegation that these representations became a basis of the bargain.

         In response to the Motion to Dismiss, Plaintiff states that “[w]e know that Wright's representations about safety and performance became the basis of the bargain because Mrs. Jorgensen selected and received a Wright prosthetic hip system during her total hip replacement surgeries on June 1, 2009, and January 25, 2010.”[19] However, there are no allegations in the Complaint that would support this statement. While Plaintiff argues that she had other options when selecting a hip device, there is no allegation that Plaintiff was aware of any of ...


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