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Mims v. Davol, Inc.

United States District Court, D. New Mexico

March 22, 2017

ROSEMARIE B. MIMS Plaintiff,
v.
DAVOL, INC., and C.R. BARD, INC., Defendants.

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO Chief United States District Judge

         THIS MATTER is before the Court on Defendants' Motion and Brief to Dismiss Plaintiff's First Amended Complaint Pursuant to Fed. R. Civ. Pro. 12(B)(6), filed May 16, 2016 [Doc. 18]; and Plaintiff's Motion to Certify Question of State Law to the New Mexico Supreme Court, filed July 5, 2016 [Doc. 24]. For the reasons set forth below, the Motion to Dismiss is granted-in-part and denied-in-part.

         The Motion to certify is denied. This lawsuit arises out of injuries alleged to have been caused by a surgical mesh product that was inserted into Plaintiff's body to treat an abdominal hernia. [Doc. 10-1]

         Standards Governing a Rule 12(b)(6) Motion to Dismiss

         Fed. Civ. P. Rule 8(a)(2) requires a complaint to set out “a short and plain statement of the claim showing that the pleader is entitled to relief.” To withstand a motion to dismiss, a complaint must contain sufficient allegations of fact, taken as true, “to state a claim for relief that is plausible on its face.” In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007). In applying this test, the Court accepts as true “all plausible, non-conclusory, and non-speculative” facts alleged in the complaint. Shrader v. Al Biddinger, 633 F.3d 1235, 1243 (10th Cir. 2011). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Accordingly, in ruling on a Rule 12(b)(6) motion, “a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest [that] the defendant is liable.” Collins, 656 F.3d at 1214.

         BACKGROUND

         The Court assumes that the following facts, which are taken from Plaintiff's Amended Complaint for Damages for Personal Injury Resulting from Negligence, Strict Liability, Breach of Warranties, and Fraud (the Complaint), are true. [Doc. 10-1] On January 25, 2005, Plaintiff, who had an abdominal hernia, underwent surgery in Colorado Springs, Colorado, to have the “Bard® Composix® Kugel® Medium Oval, 11 cm x 14 cm” (the Product) inserted into her abdomen. [Doc. 10-1 ¶¶ 1, 11, 13, 80] The Product, which is designed, manufactured, and distributed by Defendants, is purposed to fix abdominal hernias. [Doc. 10-1 ¶ 5]

         In 2011, in New Mexico Plaintiff started feeling nauseated, vomiting, experiencing extreme abdominal pain and tenderness in her abdomen, and having frequent fevers. [Doc. 10-1 ¶ 92; Doc. 19 p. 15] She could not keep food down, and she had difficulty eating. [Id.] She was also suffering dehydration and weight loss. [Id.] Eventually, Plaintiff's symptoms led her to the emergency room in Las Cruces, New Mexico. [Id]. There, she learned that she had intestinal perforations; that the Product had migrated through her abdominal wall; and that she had abscesses, a bowel obstruction, sepsis, and chronic intestinal fistulae (abnormal connections or passageways between the intestines and other organs). [Doc. 10-10 ¶ 83]

         In October 2012, Plaintiff underwent an ileostomy due to a diseased intestine. [Doc. 10-1 ¶ 92] After the surgery, she had complications including several infections, and severe burning of her skin from fecal matter and bile. [Id.] She had to be fed intravenously. [Id.] When her condition worsened, she underwent another surgery in February 2013. [Id.] During the February surgery, which lasted approximately six hours, the surgeon discovered that the Product had eroded into her midline incision, and was infected. [Id.] The Product, which had to be removed, was partially disintegrated and misshapen. [Doc. 10-1 ¶ 14] When Plaintiff eventually recovered from that surgery, many of her symptoms returned, and she had to undergo yet another surgery-this time to remove a life threatening abdominal abscess. [Doc. 10-1 ¶ 92]

         The symptoms that Plaintiff experienced were caused by defects inherent in the Product. [Doc. 10-1 ¶ 16] The design of the Product requires that it be inserted into and through an area of the body with high levels of bacteria which can adhere to the mesh and cause immune reactions, a breakdown in the tissue, and other adverse reactions. [Doc. 10-1 ¶ 31] The Product is unreasonably susceptible to “creep” which is a gradual elongation and deformation, to shrinkage and contraction, and to becoming “improperly mated to the delicate and sensitive areas of the abdomen[.]” [Doc. 10-1 ¶¶ 25, 27, 31] Because the materials used to make the Product were not sufficiently strong or resilient, once the Product was inserted into Plaintiff's abdomen it disintegrated and became misshapen. [Doc. 10-1 ¶¶ 17, 18, 43] Further, because the material that is used to make the Product is biologically incompatible with human tissue, the Product caused Plaintiff to have a negative immune response, tissue inflammation, and the “formation of severe adverse reactions to the mesh.” [Doc. 10-1 ¶¶ 22-23] Plaintiff, having suffered each of these effects caused the defective Product, was forced to undergo additional surgeries. [Doc. 10-1 ¶ 30]

         The side effects experienced by Plaintiff as a result of the Product's defects were not unique to Plaintiff; numerous patients around the world who were implanted with the Product, and with similar products made by Defendants, experienced the same reactions. [Doc. 10-1 ¶¶ 20, 40] Immediately after the Product was placed on the market, Defendants began receiving notices of its defects and failures. [Doc. 10-1 ¶ 50] Despite the high rates of failure, injury, and complications associated with the Product, including the frequent need for repeat surgeries, Defendant failed to disclose these issues to the medical community. [Doc. 10-1 ¶ 29] Instead, Defendants continued to promote the Product as safe and effective without warning Plaintiff, or the general public, of its adverse effects. [Doc. 10-1 ¶¶ 47, 49] Defendants also hid information from physicians regarding the magnitude and frequency of the medical problems associated with the use of the Product, and continued marketing and distributing the Product to the medical community. [Doc. 10-1 ¶¶ 28-29, 49, 51]

         Based on the injuries that she suffered as a result of the Product's defects, Plaintiff filed a seven-count complaint, alleging (1) negligence, (2) strict liability based upon a design defect, (3) strict liability based upon a manufacturing defect, (4) strict liability based upon a failure to warn, (5) breach of express warranty, (6) breach of implied warranty, and (7) fraud. [Doc. 10-1 p. 22-38]

         Defendants seek dismissal of Plaintiffs claims on the following grounds. First, relying on the premise that Plaintiff's claims are governed by the procedural and substantive law of Colorado, Defendants argue that Plaintiff's claims are time-barred by Colorado's statute of limitations; and that Plaintiff's claims should otherwise be dismissed for failure to state a claim under Colorado law.[1] [Doc. 18 p. 1-2, 6-20] Secondly, and in the alternative, they ...


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