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This post is from the non-Reed Smith side of the blog.

Smith & Nephew, Inc. continues to push the plaintiffs out of court in a hip implant case pending in federal court in New Jersey.  Earlier this year, Smith & Nephew won its motion to dismiss plaintiffs’ first complaint because it contained almost no facts and plaintiffs’ counsel opposed the motion with nothing more than a tardy letter attaching medical records, correspondence and no legal authority.  See Becker v. Smith & Nephew, Inc., 2015 U.S. Dist. LEXIS 6853 (D.N.J. Jan. 20, 2015).  We blogged about it here.

The court gave plaintiffs another chance, however, and plaintiffs took it.  Things didn’t get any better.  To quote Bugs Bunny’s sign from the classic Gashouse Gorillas episode: “Was this trip really necessary?”   It wasn’t.

In fact, plaintiffs seemed to know that their amended complaint was still deficient, asking the court to grant them discovery to fill gaping holes in their parallel violation claims.  But that’s precisely backward.  Plaintiffs must first state a claim, then they get discovery:

Plaintiffs contend that they should be permitted to allege unspecified deviations from FDA requirements at the pleading stage, and fill in the blanks through discovery.  Pl.’s Br. 8.  But a plaintiff must successfully plead a claim before obtaining discovery, not the other way around. Such a premature request for discovery conflicts with Rules 8 and 11(b) of the Federal Rules of Civil Procedure.  See Desai, 2013 U.S. Dist. LEXIS 5795, 2013 WL 163298 at *7; see also Hayes v. Howmedica Osteonics Corp., Civ. No. 08-6104, 2009 U.S. Dist. LEXIS 131984, 2009 WL 6841859 (D.N.J. Dec.15, 2009) (dismissing a strict liability claim involving a hip prosthesis under Twombly, which “[does] not distinguish between and among different types of cases.  It would be wrong for this Court to rule that this plaintiff because of her particular injury and theory of harm has a right to sup-port [her claim] through discovery as opposed [to] allegations in the complaint”).  As the Third Circuit recognized, “many PMA preemption motions are decided without any discovery.”  Smith, 552 F. App’x at 196.  Plaintiffs’ first cause of action for strict liability is dis-missed.

Becker v. Smith & Nephew, Inc., 2015 U.S. Dist. LEXIS 102385, at *8-9 (D.N.J. Aug. 5, 2015).  And so plaintiffs’ strict liability claims were dismissed again.

Plaintiffs also tried to allege an express warranty claim.  But, to do that, they must allege some sort of express warranty, and that warranty must be a statement that was not approved by the FDA.  Id. at *9.  Plaintiffs did neither:

To avoid preemption, the plaintiff must show that the defendant-manufacturer made “voluntary statements” that were “not approved by the FDA or mandated by the FDA about the use or effectiveness” of a medical device. . . .

[Plaintiffs’ express warranty claim] asserts no supporting facts.  The content of any such “warranty” is not given.  Who said what to whom, where, when, and how, is unknown.  There is no factual allegation in the complaint that Defendant ever made any identifiable, voluntary, unapproved statement to Deborah Becker or her physician regarding the safety, effectiveness or proper applications of the implant.  In short, this is “a formulaic recitation of the elements of a cause of action,” which Twombly tells us “will not do.”  550 U.S. at 556; see also Clements v. Sanofi-Aventis, U.S., Inc., No. 14-CV-1423 KM, 2015 U.S. Dist. LEXIS 75918, 2015 WL 3648911, at *11 (D.N.J. June 11, 2015) (finding same).

Plaintiffs’ cause of action for breach of express warranty is dismissed.

Id. at *10.

The court also dismissed plaintiffs’ New Jersey Consumer Fraud Act claim, which is not applicable when a plaintiff alleges damage due to a defective product, and loss of consortium claim, which was derivative of the claims that the court had already dismissed.  Id. at *10-12.  And, with that, plaintiffs’ amended complaint was dismissed in its entirety.

The only surprising aspect of the court’s decision is that plaintiffs get yet another chance.  Id. at *12.  Citing the Third Circuit’s liberal standard for allowing amendments, the court decided to let plaintiffs try to amend their complaint yet again.  It’s not clear that they will take that opportunity.  But if they do, they’d better allege facts.  After crash-and-burn oppositions to Smith & Nephew’s first two motions, it’s not likely that the court will respond well to a third.