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Ardoin v. Stryker Corp.

United States District Court, S.D. Texas, Houston Division

October 7, 2019

FLORENCE ARDOIN, Plaintiff,
v.
STRYKER CORPORATION, et al, Defendants.

          MEMORANDUM AND ORDER

          HON. KEITH P. ELLISON, UNITED STATES DISTRICT JUDGE.

         Before the Court are Defendant Howmedica Osteonics Corporation's Motion to Dismiss and Plaintiff Florence Ardoin's Motion for Leave to File Plaintiff's Third Amended Complaint. (Doc. Nos. 24, 26). After considering both Motions and all applicable law, the Court determines that Defendant's Motion to Dismiss must be GRANTED in part and DENIED in part, and Plaintiff's Motion for Leave to Amend must be DENIED.

         I. BACKGROUND

         Plaintiff underwent a right total hip arthroplasty in 2015. (Doc. No. 23 ¶ 6). The surgeon, Dr. Christopher K. Smith, implanted an artificial hip system called the Stryker Secur-Fit Max System (“System”), which is manufactured, marketed, and sold by Defendant. Id. The System is made up of four parts: a Stryker Trident Cluster PSL Acetabular Shell (“Acetabular Shell”), a Trident 0 Degree Polyethylene Insert, a Stryker Secur-Fit Max Femoral Stem, and a 36 mm Biolox ceramic head. Id. The System also used Torx Cancellous Bone Screws (“Bone Screws”). Id.

         In the spring of 2016, Plaintiff started experiencing pain in her lower back and right hip. Id. ¶ 7. Plaintiff went to see Dr. Smith, who referred her to Dr. Carl Hicks for a revision surgery. Id. Plaintiff underwent a revision surgery with Dr. Hicks. Id. ¶ 8. Dr. Hicks reported after the surgery that the Acetabular Shell had loosened and two Bone Screws were broken. Id. Dr. Hicks implanted a new acetabular cup with three bone screws. Id.

         This case was removed from state court to this Court. (Doc. No. 1). Plaintiff filed a First Amended Complaint once the case was removed, properly replacing the originally named defendant with Defendant Howmedica. (Doc. No. 6). Defendant filed a first Motion to Dismiss soon after. (Doc. No. 13). The Court granted Defendant's first Motion to Dismiss and granted Plaintiff leave to amend. Plaintiff has since filed her Second Amended Complaint (Doc. No. 23), and now before the Court is Defendant's second Motion to Dismiss (Doc. No. 24). Plaintiff has also filed a Motion for Leave to File Third Amended Complaint requesting leave to amend on any claims that the Court dismisses. (Doc. No. 26).

         II. LEGAL STANDARD

         A. Motion to Dismiss

         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint that “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Well-pleaded factual allegations in the complaint must be accepted as true and must be viewed “in the light most favorable to the plaintiff[].” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008). However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Courts do not accept as true “conclusory allegations, unwarranted factual inferences, or legal conclusions.” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010) (quoting Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007)).

         Federal Rule of Civil Procedure 8(a) generally controls pleading requirements, calling for “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, in cases alleging fraud or mistake, the heightened pleading requirements of Rule 9(b) apply. Fed.R.Civ.P. 9(b). Under Rule 9(b), “a party must state with particularity the circumstances constituting fraud or mistake.” Id.; see also Matter of Life Partners Holdings, Inc., 926 F.3d 103, 116-17 (5th Cir. 2019). In the Fifth Circuit, the Rule 9(b) pleading standard requires that the complaint contain factual allegations for the “time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what [that person] obtained thereby.” Life Partners, 926 F.3d at 117 (alteration in the original) (quoting Tuchman v. DSC Comm'ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994)). In other words, the plaintiff must plead “the who, what, when, where, and why” of the alleged fraudulent conduct. Id.

         B. Motion for Leave to Amend

         Under Federal Rule of Civil Procedure 15(a), a district court “should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). Rule 15 “evinces a bias in favor of granting leave to amend.” Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005) (quoting Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th Cir. 2002)). However, leave to amend may be denied for reasons such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . ., [or] futility of amendment . . . .” Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 591 (5th Cir. 2016) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

         III. MOTION TO DISMISS

         A. Strict Liability Design Defect Claim

         Plaintiff has pled many instances of defective design. Although the Complaint is not entirely clear, it appears that Plaintiff alleges defective design of the Acetabular Shell (Doc. No. 23 ¶ 24), other unspecified components of the System, id. ¶ 25, and the Bone Screws, id. ¶ 26.[1]“To recover for a products liability claim alleging a design defect, a plaintiff must prove that (1) the product was defectively designed so as to render it unreasonably dangerous; (2) a safer alternative design existed; and (3) the defect was a producing cause of the injury for which the plaintiff seeks recovery.” Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009).

         Defendant argues that Plaintiff's alleged design defects relating to the Acetabular Shell and the Bone Screws are actually allegations of manufacturing defects, because Plaintiff describes the defects as “discrepancies” or “anomalies” and issues with the “metallurgical integrity.” (Doc. No. 24, at 11-12). However, a design can contain instructions that necessarily generate discrepancies or weakness when followed; in other words, even if the manufacturer follows the instructions exactly, the instructions may be designed in a way that guarantees fluctuations in quality. See De Los Santos v. Ford Motor Co., No. 04-14-00562-CV, 2015 WL 3776389, at *4 (Tex. App. June 17, 2015) (finding that design that called for a type of steel that became “embrittled” during a heat-treating process was a design defect, rather than a manufacturing defect). Although Plaintiff's complaint is not abundantly detailed, the Court takes the alleged facts as true: that the Acetabular ...


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