Bostic v. Ethicon, Inc., 2022 WL 952129 (E.D. Pa. March 29, 2022), is a Pennsylvania mesh case raising a host of familiar issues in a motion to dismiss context. The complaint is of the typically overpleaded (14-count) variety. Dickens was not really paid by the word, but plaintiff lawyers seem to think they might be. Or perhaps they hope that if enough counts make it to the jury, compromise or charity might result in throwing a bone the plaintiff’s way. In any event, by the time the Bostic court was through considering the motion to dismiss, considerably fewer counts remained.
Let’s begin with the disappointing part. The court declined to dismiss the complaint as a “shotgun” pleading – an argument that seems to be more popular (if not necessarily more successful since our post last year on this subject). The defendant pointed out that the complaint was virtually identical to dozens of other complaints filed by other plaintiffs around the country. The complaint also contained very few case-specific allegations. All we learn from the complaint is that the plaintiff had been implanted with the mesh device, the mesh was made from polypropylene, and the plaintiff suffered injuries. The Bostic court reasoned that a defective “shotgun” complaint is one that fails to give the defendant adequate notice. According to the court, the Bostic complaint cleared this rather low hurdle. The defendant wanted some dates that might help it ascertain the viability of certain defenses, such as statute of limitations. The court essentially said Too Bad, and that a complaint need not head off affirmative defenses. Oh well
The court did better with the manufacturing defect claim. The demise of that cause of action was perfectly typical. The complaint alleged that the mesh device used non-medical grade material, was made of polypropylene, was cut in a manner resulting in sharp edges, and lacked a sheath that might have reduced abrasion. But these alleged defects were common with other mesh devices and, more important, were not deviations from the intended design. Thus, the manufacturing defect claim was really a disguised design defect claim. The court dismissed the manufacturing defect claim, but gave leave to amend because the plaintiff promised to specify how the device was different from similar products manufactured by the defendant. Count us as skeptical.
The Bostic court also held that Pennsylvania law would apply comment k across the board to all prescription medical products, including medical devices. This Erie guess was based on several Pennsylvania Superior Court decisions, as well as other decisions by E.D. Pa. Application of comment k compelled dismissal of the strict liability claims for design and warnings, and also dismissal of implied warranty claims. Those dismissals were with prejudice.
The Bostic court dismissed the common law fraud claim because it had not been pleaded with particularity. The complaint did “not allege the date, time or place in which those misrepresentations were made or otherwise inject precision into the allegations.” This dismissal was without prejudice, so the plaintiff can seek to “inject precision.” We expect precisely no precision, but you knew that, didn’t you?
Not content with having an imprecise fraud claim, the plaintiff also ladled on claims for constructive fraud, negligent misrepresentation, and fraudulent concealment. If less is more does that mean that more is less? In this case, more was simply duplicative. The Bostic court held that negligence for failure to warn is the sole theory under which a plaintiff can recover against a device manufacturer when the claim is essentially that the manufacturer knew of dangers associated with the product but concealed that information while fraudulently misrepresenting the product’s safety. Consequently, the Bostic court dismissed the potpourri of fraud/misrepresentation/concealment claims. Since we just this week learned that the word potpourri comes from the French for “putrid pot,” our usage seems appropriate.
As is lamentably typical (there’s that word again), the plaintiff included an express warranty claim that did “not contain any allegations regarding the specific sources of these warranties” and did not offer a single clue as to where the plaintiff read, heard, or saw those express warranties or otherwise knew of them. The Bostic court dismissed the express warranty claim. The plaintiff again promised (promises, promises!) to do better, so the court permitted an amendment.
Finally, we have the ultimate useless, gratuitous, makeweight claim in a personal injury case: unjust enrichment. The plaintiff received and used the product, and thus could not allege unjust enrichment. The plaintiff could “not plausibly allege that Defendants refused to provide her with a service or product in exchange for payment.” The Bostic court granted the motion to dismiss the unjust enrichment count with prejudice. Even better, the court ruled that any amendment “would be futile.” The dismissal was with prejudice.