Opinion
1-23-CV-515-RP
06-06-2024
DE LOIS PHILLIPS, INDIVIDUALLY, AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF FRED STEVEN PHILLIPS, DECEASED, AMY LEANNE PHILLIPS, LAURA KYLENE PHILLIPS SUBLETT, KALLI JANETTE PHILLIPS JACKSON, AND STEFANIE DENE' PHILLIPS FELLER, Plaintiffs, v. ETHICON ENDO-SURGERY, INC., Defendant.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
UMARK LANE, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE:
Before the court is Defendant Ethicon Endo-Surgery, Inc.'s Motion to Dismiss Plaintiffs' First Amended Complaint (Dkt. 21) and all related briefing. Having considered the pleadings, the relevant case law, and the entire case file, the undersigned submits the following Report and Recommendation to the District Judge.
The motion was referred by United States District Judge Robert Pitman to the undersigned for a Report and Recommendation as to the merits pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. See Text Order dated March 27, 2024.
I. Background
On September 15, 2021, Fred Steven Phillips underwent a procedure to surgically remove a colon polyp. Dkt. 16 (FAC) ¶ 6. The surgeon used an “Ethicon Proximate Linear Cutter 75” (“Stapler”) to reconnect two ends of the colon where a middle section of the colon has been removed, known as anastomosis. Id. The anastomosis was tested under air and water and there was no leakage from the colon. Id. Phillips was discharged two days later. Id.
However, one week after surgery, Phillips was readmitted to the hospital due to a leak at the site of the colocolonic anastomosis staple line created on September 15, 2021. Id. ¶ 7. Following surgery to correct the defect, a pathologist determined there was a transmural defect in the anastomotic staple line caused by a failure of the staples. Id. ¶ 8. The failure of the anastomotic staple line caused Phillips to become septic and ultimately died on June 6, 2022, from sepsis and its sequalae. Id. ¶ 9.
Plaintiffs bring suit against Ethicon Endo-Surgery, Inc. (“EES”), which manufactured the Stapler and Staples used in Phillips' procedure. Dkt. 16 (FAC). They assert claims for breach of warranty of fitness for a particular purpose and breach of the warranty of merchantability. Id. ¶¶ 32, 33. EES moves to dismiss Plaintiffs' claims, arguing that the claims are insufficiently pleaded and Plaintiffs failed to allege that they provided EES with the required pre-suit notice. Plaintiffs oppose the motion and alternatively seek leave to amend their First Amended Complaint.
II. Standard of Review
When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6) the complaint must be liberally construed in favor of the plaintiff and all facts pleaded therein must be taken as true. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Although Federal Rule of Civil Procedure 8 mandates only that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” this standard demands more than unadorned accusations, “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Bell Atl. v. Twombly, 550 U.S. 544, 555-57 (2007). Rather, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. The Supreme Court has made clear this plausibility standard is not simply a “probability requirement,” but imposes a standard higher than “a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The standard is properly guided by “[t]wo working principles.” Id. First, although “a court must ‘accept as true all of the allegations contained in a complaint,' that tenet is inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Second, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, in considering a motion to dismiss, the court must initially identify pleadings that are no more than legal conclusions not entitled to the assumption of truth, then assume the veracity of well-pleaded factual allegations and determine whether those allegations plausibly give rise to an entitlement to relief. If not, “the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
III. Analysis
A. Breach of Warranty of Fitness for a Particular Purpose
To state a claim for breach of implied warranty of fitness for a particular purpose, “the plaintiff must [allege] that (1) the seller had reason to know any particular purpose for which the goods were required at the time of contracting, and (2) the buyer was relying on the seller's skill or judgment to select or furnish suitable goods.” Lawrence v. Corin Grp., PLC, No. 4:21-CV-112, 2021 WL 5907782, at *4 (E.D. Tex. Dec. 14, 2021); see also TEX. BUS. & COM. CODE § 2.315.
The particular purpose must be a particular non-ordinary purpose. Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 425 (5th Cir. 2006); Lawrence, 2021 WL 5907782, at *4.
Plaintiffs' First Amended Complaint alleges “[t]he cause of the complained of staple line dehiscence was a failure of the ‘stapler' and/or ‘staples' to perform their advertised and intended purpose of creating a functional anastomosis.” FAC ¶ 10. As such, Plaintiffs' allegations negate the element that Stapler and Staples were used for a non-ordinary purpose. See Brazos River Auth., 469 F.3d at 425; Lawrence, 2021 WL 5907782, at *4. Plaintiffs do not attempt to rebut this point in their responsive brief, except to argue that the existence of a warranty is a fact issue. Dkt. 22 at ¶ 9. But there is no fact issue where the pleaded allegations directly contradict the elements of the claim. Accordingly, the undersigned will recommend this claim be dismissed.
B. Breach of Warranty of Merchantability
To prevail on a breach of the implied warranty of merchantability, a plaintiff must prove that: (1) “the defendant sold or leased the product to the plaintiff; (2) the product was unmerchantable; (3) the plaintiff notified the defendant of the breach; and (4) the plaintiff suffered injury.” Bass v. Stryker Corp., 669 F.3d 501, 516 (5th Cir. 2012); see also TEX. BUS. & COM. CODE § 2.314 (West 2009). A product is unmerchantable if it is “unfit for its ordinary purpose.” Bass, 669 F.3d at 516.
EES argues Plaintiffs have failed to allege a particular defect in the Stapler or Staples to support this claim. EES argues it is insufficient to simply infer a defect from the occurrence of a known complication. In response, Plaintiffs cite one case for the proposition that they may establish a product defect by circumstantial evidence. See Mott v. Red's Safe & Lock Servs., Inc., 249 S.W.3d 90, 96 (Tex. App.-Houston [1st] 2007). In Mott, the appellate court reversed the trial court's grant of a no-evidence summary judgment, finding there was evidence that the product had been set up and used correctly. Id. This was sufficient circumstantial evidence that the product was defective to survive summary judgment.
In contrast, this case is still at the pleading, not evidentiary, stage. Plaintiffs must plead more than “a sheer possibility” that the Stapler or Staple failure caused Phillips's injuries. See Iqbal, 556 U.S. at 678. But their allegations are simply that immediately after use, the anastomosis was successful, but eight days after surgery, it was discovered Phillips's anastomosis failed; therefore, the Stapler or Staples must have been defective. Plaintiffs pleaded no facts that describe any defect in the Stapler itself or in the Staples themselves. From Plaintiffs' allegations, it is possible that the Stapler or Staples failed, but one can also imagine many other reasons the anastomosis failed over the eight days-the Staples were not placed properly, a proper diet was not followed, exertion, trauma to the area, etc. But the federal pleading standards require more than the mere possibility that Plaintiffs may be entitled to relief. McGuire v. Abbott Lab'ys, Inc., No. 1:22-CV-197, 2023 WL 3262033, at *5 (E.D. Tex. May 3, 2023) (“To plead a manufacturing defect claim adequately, a plaintiff must allege more than the mere fact of a product-related accident.”). Accordingly, the undersigned will recommend this claim be dismissed as inadequately pleaded.
C. Notice
To bring a breach of warranty claim, a plaintiff “must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from remedy.” TEX. BUS. & COM. CODE § 2.607(c)(1). Courts in Texas consistently hold that failure to provide pre-suit notice is fatal to a plaintiff's warranty claim. Morgan v. Medtronic, Inc., 172 F.Supp.3d 959, 970 (S.D. Tex. 2016); see, e.g., U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 201 (Tex. App.-Houston [1st Dist.] 2003, pet. denied) (plaintiff's breach of warranty claims fail because plaintiff provided no notice to manufacturer); see also McKay v. Novartis Pharm. Corp., 934 F.Supp.2d 898, 913 (W.D. Tex.2013) aff'd sub nom. McKay v. Novartis Pharm. Corp., 751 F.3d 694 (5th Cir. 2014).
EES also argues Plaintiffs' claims fail because they failed to give the required pre-suit notice of their claims. Plaintiffs argue they are excused from the notice requirement because they did not purchase the product in question and they gave notice by filing suit. Dkt. 22 ¶ 13. Alternatively, Plaintiffs also argue EES received notice on May 18, 2023, seven days after suit was filed. Id. ¶ 15. Plaintiffs also contend EES received notice through the surgeon's deposition in May 2021, but Plaintiffs do not describe why EES would have knowledge of the deposition and the quoted deposition excerpt does not describe a report of Phillips's failed anastomosis. Id. ¶ 16.
Several of Plaintiffs' arguments are easily disposed of. “'[C]ommencement of litigation' does not satisfy the notice requirement.” McKay v. Novartis Pharm. Corp., 751 F.3d 694, 706 (5th Cir. 2014). Thus, their filing suit does not satisfy the notice requirement. The seller or manufacturer must be made aware of the particular problems with the particular product used by the plaintiff bringing suit. General notice of another person's issues with the product does not suffice. Id.
This leaves Plaintiffs' argument that notice is not required because they did not purchase the Stapler or Staples. As EES points out, this position is both factually and legally wrong. In the parties' Joint Rule 26 Report, they stated, “[t]he surgical stapler and/or staples made the basis of this lawsuit were ultimately sold to Fred Phillips for the purpose of creating the functional peristaltic non-leaking colocolonic anastomosis.” Dkt. 12 at 1. Moreover, courts have rejected Plaintiffs' position. See Del Castillo v. PMI Holdings N. Am. Inc., No. 4:14-CV-03435, 2016 WL 3745953, at *3 (S.D. Tex. July 13, 2016); Alvarado v. Conmed Corp., No. CIV EP-06-CV-0198-KC, 2008 WL 2783510, at *9 (W.D. Tex. Mar. 13, 2008); see also Garcia v. Tex. Instruments, Inc., 610 S.W.2d 456, 465 (Tex. 1980)). Accordingly, Plaintiffs' claims are also barred because they have failed to give the required pre-suit notice.
D. Leave to Amend
Alternatively, Plaintiffs seek another opportunity to cure these deficiencies by amending their First Amended Complaint. The court notes that Plaintiffs already repleaded their claims after EES's first motion to dismiss was fully briefed. Dkts. 8, 10, 11, 16. That motion raised the same issues that were raised in the current motion to dismiss.
Rule 15 governs motions to amend made before trial and provides that “[t]he court should freely give leave when justice so requires.” Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016) (quoting FED. R. CIV. P. 15(a)(2)). “Rule 15(a) ‘evinces a bias in favor of granting leave to amend.'” Id. (quoting Herrmann Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 566 (5th Cir. 2002)). A movant is required to give the court some notice of the nature of his or her proposed amendments. Id. (“it is clear that some specificity is required”). Even when proper notice is given, permissible reasons for denying a motion for leave to amend include “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 by virtue of allowance of the amendment, futility of amendment, etc.” Id. at 591 (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Courts use the Rule 12(b)(6) standard to evaluate futility, and courts deny leave as futile when “the theory presented in the amendment lacks legal foundation or because the theory has been adequately presented in a prior version of the complaint.” Id. at 591-92; Jamieson By & Through Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir. 1985).
In this case, Plaintiffs have given the court no notice as to how they would amend their complaint to present cognizable, non-futile claims. Plaintiffs have also already tried and failed to cure these deficiencies. Accordingly, the undersigned denies leave to amend.
IV. Recommendation
The undersigned RECOMMENDS that the District Judge GRANT Defendant Ethicon Endo-Surgery, Inc.'s Motion to Dismiss Plaintiffs' First Amended Complaint (Dkt. 21). Specifically, the undersigned recommends Plaintiffs' breach of warranty of fitness for a particular purpose claim be dismissed with prejudice and Plaintiffs' breach of the warranty of merchantability be dismissed without prejudice.
V. Objections
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996)(en banc).