Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carpenter v. Boston Scientific Corp.

United States District Court, N.D. Texas, Dallas Division

July 24, 2019

CAROLYN CARPENTER, Plaintiff,
v.
BOSTON SCIENTIFIC CORPORATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          Sam A. Lindsay, United States District Judge.

         Before the court are Defendant Boston Scientific Corporation's (“Defendant” or “Boston Scientific”) Motion to Dismiss for Failure to State a Claim (Doc. 5), filed September 11, 2018; Plaintiff Carolyn Carpenter's (“Plaintiff” or “Carpenter”) Response (Doc. 10), filed October 2, 2018; and Defendant's Reply (Doc. 11), filed October 16, 2018.

         After careful consideration of the motion, briefs, pleadings, and applicable law, the court grants Defendant's Motion to Dismiss for Failure to State a Claim (Doc. 5); dismisses with prejudice Plaintiff's breach of implied and express warranty claims as being barred by the statute of limitations; and dismisses without prejudice Plaintiff's negligence and strict liability claims but allows her to file an amended pleading.

         I. Factual and Procedural Background

         On July 27, 2018, Carpenter filed Plaintiff's Original Petition (the “Petition”) in the 68th Judicial District Court of Dallas County, Texas, asserting the following state law claims against Boston Scientific: (1) negligence; (2) strict liability for a design defect; (3) strict liability for a manufacturing defect; (4) strict liability for failure to warn; (5) breach of implied warranty; and (6) breach of express warranty. Def.'s Notice of Removal, Doc. 1 at 1; Pl.'s Pet., Doc. 1-3 at 11-15. Boston Scientific was served on August 13, 2018, and removed this action to federal court on September 4, 2018, on the basis of diversity jurisdiction. Def.'s Notice of Removal, Doc. 1 at 1-3; Ex. B., Doc. 1-2 at 3.

         Carpenter asserts that these claims arise based on her being surgically implanted with Boston Scientific's medical device, the Advantage Fit Transvaginal Mid-Urethral Sling System (the “Advantage Fit”). The Advantage Fit is a device composed of polypropylene mesh that is implanted onto a woman's vaginal wall and secured in place by two arms that extend through the pelvis. Pl.'s Pet., Doc. 1-3, ¶ 7. The purpose of the device is to correct and restore the normal vaginal structure of women who suffer from pain, discomfort, and urinary incontinence. Id.

         On April 5, 2012, Carpenter underwent surgery at Texas Health Presbyterian Hospital Plano and was implanted with the Advantage Fit to treat her urinary incontinence. Pl.'s Pet., Doc. 1-3, ¶ 32. Carpenter alleges that, as a result of the implantation of the device, she suffered complications that required corrective surgeries. Specifically, she contends that, in January 2017, she had surgery to remove stones from her bladder; in May 2017, she had surgery to remove mesh that had eroded into her bladder; and in May 2018, she had surgery to remove additional mesh that had eroded into her bladder and treat bladder lesions. Pl.'s Pet., Doc. 1-3, ¶¶ 33-35. Carpenter alleges that she will continue to suffer injury as a result of being implanted with the Advantage Fit device, including pain, discomfort, chronic infections, surgeries, and erosion of the device into her surrounding organs and tissues. Pl.'s Pet., Doc. 1-3, ¶ 36.

         Carpenter asserts that scientific evidence shows that “this material is biologically incompatible with human tissue and promotes an immune response, ” which causes the mesh material to degrade, leading to “the formation of severe adverse reactions.” Pl.'s Pet., Doc. 1-3, ¶ 9. Carpenter asserts that Boston Scientific, in promoting the Advantage Fit, has made exaggerated and misleading representations regarding the safety, utility, and efficacy of the device. Pl.'s Pet., Doc. 1-3, ¶ 11. Carpenter asserts that, in addition to her, a significant number of women who were implanted with the Advantage Fit have subsequently experienced severe and irreversible injuries as a result of the device and have required frequent and often debilitating revision surgeries. Pl.'s Pet., Doc. 1-3, ¶ 12. Some of the resulting injuries, she contends, include: mesh erosion, infection, inflammation, scar tissue, organ perforation, blood loss, acute and chronic nerve damage and pain, and urinary and fecal incontinence. Pl.'s Pet., Doc. 1-3, ¶ 26. Carpenter contends that the medical and scientific literature studying the effects of polypropylene mesh, the material used in the Advantage Fit, has concluded that “each of these injuries, conditions, and complications . . . are in fact causally related to the mesh itself and do not often implicate errors related to the implantation of the devices.” Pl.'s Pet., Doc. 1-3, ¶ 27. Carpenter contends that the FDA issued warnings in 2008 and 2011, regarding the use of transvaginal mesh products. Pl.'s Pet., Doc. 1-3, ¶ 7.

         On September 11, 2018, Boston Scientific filed its Motion to Dismiss. Boston Scientific argues that Carpenter's claims are barred by the applicable statutes of limitations, that her Petition fails to state a claim upon which relief can be granted, and that it should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). For the reasons that follow, the court determines that Carpenter's breach of implied and express warranty claims are barred by the statute of limitations; that the pleadings do not support Defendant's arguments that her negligence and strict liability claims are time-barred; and that, although the Petition has factual deficiencies with respect to the negligence and strict liability claims, Carpenter will be permitted to replead her claims in an amended complaint.

         II. Rule 12(b)(6) - Failure to State a Claim

         To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir. 2008); Guidry v. American Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007). A claim meets the plausibility test “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). While a complaint need not contain detailed factual allegations, it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). The “[f]actual allegations of [a complaint] must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (quotation marks, citations, and footnote omitted). When the allegations of the pleading do not allow the court to infer more than the mere possibility of wrongdoing, they fall short of showing that the pleader is entitled to relief. Iqbal, 556 U.S. at 679.

         In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007); Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000). Likewise, “‘[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [the plaintiff's] claims.'” Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)). In this regard, a document that is part of the record but not referred to in a plaintiff's complaint and not attached to a motion to dismiss may not be considered by the court in ruling on a 12(b)(6) motion. Gines v. D.R. Horton, Inc., 699 F.3d 812, 820 & n.9 (5th Cir. 2012) (citation omitted).

         The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid claim when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v. Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 2002). While well-pleaded facts of a complaint are to be accepted as true, legal conclusions are not “entitled to the assumption of truth.” Iqbal, 556 U.S. at 679 (citation omitted). Further, a court is not to strain to find inferences favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or legal conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted). The court does not evaluate the plaintiff's likelihood of success; instead, it only determines whether the plaintiff has pleaded a legally cognizable claim. United States ex rel. Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004). Stated another way, when a court deals with a Rule 12(b)(6) motion, its task is to test the sufficiency of the allegations contained in the pleadings to determine whether they are adequate enough to state a claim upon which relief can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977); Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996), rev'd on other grounds, 113 F.3d 1412 (5th Cir. 1997) (en banc). Accordingly, denial of a 12(b)(6) motion has no bearing on whether a plaintiff ultimately establishes the necessary proof to prevail on a claim that withstands a 12(b)(6) challenge. Adams, 556 F.2d at 293.

         A statute of limitations may support dismissal pursuant to Rule 12(b)(6) when it is evident from a plaintiff's pleadings that the action is time-barred and the pleadings fail to set forth or raise some basis for tolling the statute. Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003) (citations omitted).

         III. Analysis

         A. Statute of Limitations

         1. Plaintiff's Breach of Implied and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.