Second chances, sure.  Two bites at the apple, we see it all the time.  Three strikes before you are out, fairly common.  But a fourth amended complaint to cure basic pleading deficiencies?  That seems overly generous by any standards.  Well, almost any standards because that is what plaintiff got in Greenwood v. Arthrex, Inc., 2023 U.S. Dist. LEXIS 40815 (W.D.N.Y. Mar. 10, 2023). 

Plaintiff originally filed her suit in New York state court against the manufacturer of a medical device that she alleges caused her injury.  While still in state court, plaintiff filed her first amended complaint adding component part manufacturers as additional defendants.  Those defendants removed the case to federal court and then moved to dismiss.  That motion was mooted by plaintiff filing a second amended complaint, presumably to attempt to correct the deficiencies pointed out in the motion to dismiss.  The component part defendants then moved to dismiss the second amended complaint which motion the court granted dismissing those defendants with prejudice.  Id. at *3-4.  Apparently concerned that her allegations would not withstand a motion to dismiss by the manufacturer defendant either, plaintiff filed a third amended complaint alleging four modified causes of action for negligence, strict liability design and manufacturing defect, breach of express and implied warranty, and failure to warn.  The manufacturer defendant then moved for judgement on the pleadings.  This time the court gave plaintiff her a fourth chance to plead something that would meet the TwIqbal standards. 

As recounted in the decision, the sum total of plaintiff’s allegations on her negligence cause of action are (i) the device was either defectively designed or manufactured to cause overheating, (ii) defendant manufactured and distributed the device, and (iii) months after plaintiff’s surgery defendant issued a recall of the device.  Id. at *13.  The court found that plaintiff alleged “circumstantial evidence” that was enough to allow the claim to survive.  Id. at *14. 

Plaintiff’s second cause of action alleged that it was feasible for defendant to design the product differently but does not allege what the alternative design is.  Plaintiff also alleges defendant failed to conduct adequate testing and/or failed to use proper materials or insulation in the device.  Id. at *5.  That was enough for the court to find it could “draw a reasonable inference” that defendant is liable for a product defect.  But that requires quite a leap from an unsupported claim that the product could have been designed differently to a finding that an unidentified feasible alternative design exists.

Next was plaintiff’s manufacturing design claim.  Here, plaintiff’s claims in her third amended complaint seem to be nearly identical to those dismissed in her second amended complaint.  Plaintiff did not compare the device used in her surgery to other devices, specify the malfunction, or allege a deviation from design specifications.  Id. at *15-16.  See Greenwood v. Arthrex, Inc., 2022 WL 211763, *12 (W.D.N.Y Jun. 13, 2022) (Greenwood I) (plaintiff did not allege the heat shrinking tube “deviated from similar part” and failed to identify a malfunction attributable to defendant’s parts; therefore manufacturing claim dismissed with prejudice).  This time, however, the court gave plaintiff another attempt to plead manufacturing defect by adding “a comparison of the . . . device used on her compared with others.”  Greenwood, 2023 U.S. Dist. LEXIS 40815, at *18.  This is already what the court told plaintiff was wrong in her second amended complaint and plaintiff did not fix it in the third amended complaint.  That should have been her third strike.

Fortunately, on plaintiff’s warranty claims that court decided three attempts to plead the required pre-suit was enough.  Under New York law, to state a claim for either express or implied warranty plaintiff must plead that she gave pre-suit notice to defendant.  That was missing in all three versions of the complaint.  In denying the request to amend this claim, the court acknowledged that plaintiff failed to address the same argument advanced in the prior motion to dismiss.  The court seemed to read between the lines and find that plaintiff must not have such proof of notice if she failed to plead it after being told it was a fatal deficiency to her claim.  We think the same logic should have applied to manufacturing defect. 

That left only plaintiff’s failure to warn claim.  Here plaintiff alleged that defendant failed to warn about the risk of overheating, but did not allege what warning should have been given.  Id. at *24.   That was not fatal to her claim.  However, failing to plead whether the overheating risk was knowable by the defendant was.  Plaintiff relied only on the post-surgery voluntary recall without even identifying the reason for the recall.  Plaintiff’s complaint did not allege whether the risk was “so apparent as to require a warning” or whether defendant had knowledge of the risk before plaintiff’s surgery.  Again, this is the same reason that led to the dismissal with prejudice last year.  See Greenwood I, at *12 (dismissing failure to warn because plaintiff failed to allege the reason for the recall, the recall was post-surgery, and, it was unclear whether defendant should have known of the danger).  But, again, this time the court is allowing plaintiff to amend.  Plaintiff, on her fourth try, may be able to plead facts of defendant’s prior notice. 

We are highly skeptical that plaintiff will be able to do in round 4 what it failed to do in all prior rounds – especially having already been advised of these same defects before round 3.  Stay tuned.  Maybe a fourth motion to dismiss will be the bite that finally swallows the whole apple.