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Arthur v. Medtronic, Inc.

United States District Court, E.D. Missouri, Eastern Division

August 24, 2015

KATHLEEN A. ARTHUR, Plaintiff,
v.
MEDTRONIC, INC. et al., Defendants

Page 1146

          For Kathleen A. Arthur, Plaintiff: Michael J. Sewell, LEAD ATTORNEY, BERGER AND COHEN, Clayton, MO.

         For 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.

Page 1147

         MEMORANDUM AND ORDER

         CAROL E. JACKSON, UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendants' motion to dismiss plaintiff's first

Page 1148

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.

         I. Background

         On 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 region.

         Plaintiff 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.

         II. Legal Standards

         A. Rule 12(b)(6)

         The 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 ...


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