United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
KEITH P. ELLISON, UNITED STATES DISTRICT JUDGE.
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.
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”).
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
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).
Motion to Dismiss
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.
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.
Motion for Leave to Amend
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)).
MOTION TO DISMISS
Strict Liability Design Defect Claim
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.“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
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