In general, people do not like to have to repeat themselves.  It is unavoidable.  Sometimes your audience is rightfully (or wrongfully) distracted.  Sometimes you aren’t that clear.  Sometimes you lose your zoom audio connection and have to start over.  Sometimes you don’t notice your daughter’s earbuds are in and that she’s been watching a YouTube video instead of hearing anything you just said.  It happens.  But a judge’s written opinion telling you everything you failed to do to state your case is not the same as trying to be heard across a table in a loud restaurant.  So, we think judges probably fall into the category of people who really, really do not like to have to repeat themselves.  It is a waste of time, effort, and resources.  So, when a court’s decision on a second motion to dismiss starts with “[t]he allegations in the Second Amended Complaint are the same as in the First Amended Complaint” except now plaintiff alleges more devices caused his injuries” – forced repetition follows.  Vicente v. DePuy Synthes Companies, 2021 WL 5150196, *2 (D.N.J. Nov. 5, 2021).

For context, plaintiff was in a motorcycle accident that caused several fractures in his left leg.  The surgical repair of his injuries included the implantation of orthopedic screws and plates.  Plaintiff required multiple subsequent surgeries for various reasons, including for hardware failure.  Id. at *1.  He sued the hardware manufacturer for strict liability design, manufacturing and warning defects and breach of express and implied warranty.  Id. at *2.   We posted about the court’s first dismissal of this case at the end of last year.  Based on a requested extension of time, plaintiff did not file his Second Amended Complaint until August of this year.  Id. at *3.  He had seven months to fix the pleading deficiencies pointed out by the court and instead decided to make the court do the whole thing all over again.

First the court had to re-dismiss plaintiff’s implied warranty claim because it is subsumed by the New Jersey Products Liability Act (“NJPLA”).  All claims for harm caused by a product in New Jersey fall under the NJPLA except for breach of express warranty.  Id. at *4.  Nothing in plaintiff’s allegations changed the court’s thinking.  Plaintiff’s implied warranty claim was based on an allegation defendant impliedly warranted the device was safe but breached that warranty because the device’s design was flawed.  Id. But that was just plaintiff’s attempt to “disguise[e] what would traditionally be considered a products liability claim as an alternative cause of action.”  Id. at *5.  Basing a breach of warranty claim on an alleged design defect is a just a “re-packaged design defect claim.”

Next the court moved onto the express warranty claim which failed the first time for lack of any factual assertions regarding what plaintiff or his doctors allegedly relied upon.  True too for this go round.  Plaintiff’s second amended complaint failed to allege what descriptions or statements were made to plaintiff to form the basis of any bargain, what plaintiff relied on before undergoing surgery with defendant’s devices, and how any particular product failed to conform to defendant’s description.  Id. at *6.

To state a claim for design defect in New Jersey, plaintiff must allege either a feasible safer alternative design or that the product’s risk outweighs its utility.  Id. at *6.  Plaintiff failed to allege either, instead arguing – again — that he should be able to rely on the consumer expectations test.  But that is only available in New Jersey when it is “self-evident” the product is not reasonably safe and fails to perform as a reasonable consumer would expect.  Id. at *7.   Medical devices are complex and a question like how long an orthopedic screw can last in the presence of an unhealed fracture is not something within the general knowledge of the average consumer or lay person.  Id.  Nor is an allegation that the device broke sufficient evidence of a design defect.  “[T]he design standard is not one of perfection, but reasonableness . . . [i]t is not enough to allege that an injury should not have happened.”  Id.

Nor is the mere happening of an accident, such as a device breaking, sufficient to plead a manufacturing defect claim.  Id. at *8.  In its decision on the first motion to dismiss, the court told plaintiff he was missing factual allegations about the supposed manufacturing defects.  Seven months later the same is true.  Plaintiff still did not allege some deviation from the intended design.  Attempting to rely on a malfunction theory, plaintiff argued the severity, type, and timing of his injuries were enough to “suggest” that something went wrong.  Id. at *9.  But because broken devices can occur in the absence of a defect – meaning plaintiff’s injuries could be the result of other causes – he could not proceed on circumstantial evidence.  Id.

Finally, the court re-examined plaintiff’s identically re-pleaded failure to warn allegations which amounted to nothing more than that defendant knew or should have known of the risk of device failure and the need for revision surgery.  And which the court again found conclusory and insufficient to satisfy TwIqbalId.  But that wasn’t the only thing plaintiff failed to remedy.  Plaintiff’s failure to warn claim also failed under the learned intermediary doctrine to which New Jersey recognizes a direct-to-consumer advertising exception.  But plaintiff failed to allege any DTC advertising to get him around the learned intermediary doctrine.  Last, but not least, the NJPLA has a presumption of adequacy for warnings the FDA finds adequate.  Plaintiff failed to plead any facts to counter that presumption.  Id. at *10.

About the only thing new this time around is that the court dismissed plaintiff’s claims with prejudice.  After seven months, “the differences [or lack thereof] between the First and Second Amended complaints do not suggest that the plaintiff is progressing in the direction of an actionable claim.”  Id.

The DDL blog (again) offers a tip of the cyber hat to Terry Henry at Blank Rome for sending the Vicente case to us.