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Collins v. Davol, Inc.

United States District Court, N.D. Alabama, Northwestern Division

November 4, 2014

ROBERT COLLINS and CAROLEIGH COLLINS, Plaintiffs,
v.
DAVOL, INC. and C.R. BARD, INC., Defendants

Page 1223

For Robert Collins, Caroleigh Collins, Plaintiffs: Ernest Cory, LEAD ATTORNEY, CORY WATSON CROWDER & DEGARIS PC, Birmingham, AL; Jon Collins Conlin, LEAD ATTORNEY, CORY WATSON CROWDER & DEGARIS, Birmingham, AL.

For Davol Inc, C.R. Bard Inc, Defendants: Clinton Timothy Speegle, Sara Anne Ford, LIGHTFOOT FRANKLIN & WHITE LLC, Birmingham, AL.

Page 1224

MEMORANDUM OPINION AND ORDER

ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE.

Robert Collins (" Mr. Collins" ) and Caroleigh Collins (" Ms. Collins" ) (collectively " the plaintiffs" ) bring this action against Davol, Inc. and C.R. Bard, Inc. (" the defendants" ) for breach of implied warranty, negligence, intentional and negligent infliction of emotional distress, failure to warn, loss of consortium, fraud, misrepresentation by omission, and violations of the Alabama Deceptive Trade Practices Act (" ADTPA" ), Ala. Code § § 8-19-1 et seq., and the Alabama Extended Manufacturer's Liability Doctrine (" AEMLD" ), Ala. Code § 6-5-501 et seq. Doc. 1. In a nutshell, the plaintiffs allege that the defendants continued to market, sell, and distribute the Composix Kugel Patch after learning that its design was defective, failed to provide adequate warnings about the dangers associated with the product, and that Mr. Collins suffered injuries when a Kugel Patch inserted into his abdomen during a 2004 surgery malfunctioned in 2012. Id. The defendants move to dismiss the complaint, doc. 3, and the motion is fully briefed, id.; docs. 8 and 12, and ripe for review. For the reasons stated more fully below, the motion is GRANTED as to the plaintiffs' breach of implied warranty, negligence, intentional and negligent infliction of emotional distress, failure to warn, loss of consortium, ADTPA, and AEMLD claims and DENIED as to the plaintiffs' fraud and misrepresentation by omission claims.

I. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain " a short and plain statement of the claim showing that the pleader is entitled to relief." " [T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell A. Corp. v. Twombly,

Page 1225

550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Mere " labels and conclusions" or " a formulaic recitation of the elements of a cause of action" are insufficient. Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). " Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citing Bell A. Corp., 550 U.S. at 557).

Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. " To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (citations omitted) (internal quotation marks omitted). A complaint states a facially plausible claim for relief " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). The complaint must establish " more than a sheer possibility that a defendant has acted unlawfully." Id.; see also Bell A. Corp., 550 U.S. at 555 (" Factual allegations must be enough to raise a right to relief above the speculative level." ). Ultimately, this inquiry is a " context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

II. FACTUAL BACKGROUND

The following is an account of the plaintiffs' allegations, accepted as true, that are pertinent to the resolution of the defendants' motion. On February 23, 2004, Mr. Collins underwent surgery at Vanderbilt University Medical Center in Nashville, Tennessee to repair a hernia. Doc. 1 at 3. During the procedure, Dr. William O. Richards implanted an Extra Large Composix Kugel Patch into Mr. Collins' abdomen. Id.

During 2005, 2006, and 2007, Davol issued recalls for various versions of the Kugel Patch because of " a faulty 'memory recoil ring' that [could] break under pressure." Id. at 5. The plaintiffs contend that neither Mr. Collins nor Mr. Collins' " physicians were aware of the dangerous and defective condition of the Kugel Patch or that [it] was the cause of Mr. Collins'[] injuries until sometime after [the defendants] . . . inform[ed] the ...


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