United States District Court, E.D. Missouri, Eastern Division
KATHLEEN A. ARTHUR, Plaintiff,
MEDTRONIC, INC. et al., Defendants
Kathleen A. Arthur, Plaintiff: Michael J. Sewell, LEAD
ATTORNEY, BERGER AND COHEN, Clayton, MO.
Medtronic, Inc., Medtronic Sofamor Danek USA, Inc.,
Defendants: Martin J. Buckley, LEAD ATTORNEY, BUCKLEY AND
BUCKLEY, L.L.C., St. Louis, MO; Andrew E. Tauber, MAYER BROWN
LLP, Washington, DC.
E. JACKSON, UNITED STATES DISTRICT JUDGE.
matter is before the court on defendants' motion to
dismiss plaintiff's first
amended complaint pursuant to Fed.R.Civ.P. 9(b) and 12(b)(6).
Plaintiff has filed a response in opposition and the issues
are fully briefed.
December 1, 2008, plaintiff Kathleen Arthur underwent an
anterior cervical discectomy and fusion surgery (ACDF) in
which her surgeon implanted the Infuse Bone Graft/LT-Cage
Lumbar Tapered Fusion Device (" Infuse" ),
manufactured by defendants Medtronic, Inc., and Medtronic
Sofamor Danek USA, Inc., (collectively, "
Medtronic" ). Plaintiff alleges the surgery did not
resolve her cervical pain and that she later developed
numbness in her arm and fingers. Despite pain management
treatment and additional surgical procedures, she continues
to experience severe pain and numbness. Plaintiff alleges
that Medtronic knew before 2008 that the Infuse device causes
excessive bone growth that compresses nerves around the
spinal cord and causes severe pain. She further alleges that
Medtronic promoted off-label use of Infuse in the cervical
filed this action bringing multiple state law claims.
Previously, the court found that the Medical Device Act
(MDA), 21 U.S.C. § § 301 et seq.,
preempted plaintiff's claims for strict liability,
failure to warn, negligence, negligent misrepresentation, and
breach of implied warranty. The court also found that
plaintiff's claims for fraudulent misrepresentation and
breach of express warranty were not preempted, but they were
not adequately pleaded. Plaintiff filed an amended complaint
reasserting her fraud and express-warranty claims. Defendants
assert that she has failed to cure the defects in her initial
complaint and move for dismissal.
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the legal sufficiency of the complaint. Fed. R. Civ. P.
12(b)(6). The factual allegations of a complaint are assumed
true and construed in favor of the plaintiff, " even if
it strikes a savvy judge that actual proof of those facts is
improbable." Bell Atlantic Corp. v. Twombly,550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)
(citing Swierkiewicz v. Sorema N.A.,534 U.S. 506,
508 n.1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)); Neitzke v.
Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d
338 (1989) (" Rule 12(b)(6) does not countenance . . .
dismissals based on a judge's disbelief of a
complaint's factual allegations." ); Scheuer v.
Rhodes,416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90
(1974) (stating that a well-pleaded complaint may proceed
even if it appears " that a recovery is very remote and
unlikely" ). The issue is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to
present evidence in support of his claim. Scheuer,
416 U.S. at 236. A viable complaint must include "
enough facts to state a claim to relief that is plausible on
its face." Twombly, 550 U.S. at 570; see id. at
563 (stating that the " no set of facts" language
in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957), " has earned its
retirement" ); see also As ...