We offer today’s case as a good recitation of Alabama warranty and fraud law. Both have precise pleading requirements that plaintiff failed to meet in Morris v. Angiodynamics, Inc., 2024WL 476884 (M.D. Ala. Feb. 7, 2024).
Plaintiff was implanted with a port used to deliver his chemotherapy treatments. About five months after implant, plaintiff developed a pulmonary embolism and deep vein thrombosis. When the port was explanted it was found to be clotted. Id. at *1. Plaintiff brought claims for negligence, breach of warranty, and fraud against the manufacturer; and defendant moved to dismiss the latter two categories.
Plaintiff brought three warranty claims – breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose. All three failed for two reasons. First, Alabama law requires pre-suit notice to the seller as a pre-condition to any warranty claim. Id. at*2. Plaintiff’s first amended complaint alleged only that “upon information and belief” either he or his health care providers provided pre-suit notice. But not only was that conclusory allegation missing the who, it was also missing the when, how, and to whom. Id. What it confirmed for the court was that plaintiff “has no knowledge personally or otherwise, that any pre-suit notice was ever provided.” Id. Plaintiff claimed this was information that would come out in discovery, however, a conclusory complaint does not throw open those doors. Moreover, plaintiff should not need discovery to know whether he himself gave notice. Without “some degree” of specificity or a factual basis to support a claim of pre-suit notice, plaintiff’s warranty claims had to be dismissed.
The second reason for dismissing the express warranty claim was TwIqbal. Plaintiff failed to plead anything about where or how he received the alleged warranties or whether the defendant “communicated these affirmations to [plaintiff] directly.” Id. Plaintiff apparently pointed to the device’s Indications for Use (“IFU”), but the IFU is not a warranty of safeness. The IFU describes the device and its uses. It also provides warnings and possible complications, including the risk of clotting. Perhaps more importantly, the IFU is a communication from the manufacturer to healthcare providers; or the learned intermediaries. Nowhere did the first amended complaint allege how the purported warranty passed from plaintiff’s prescribing physician to him. Id. at *4.
The second reason for dismissing the implied warranty claims is because Alabama law does not allow such claims for inherently dangerous products such as medical devices. Rather, Alabama has decided that allegations of harm caused by medical devices and prescription drugs should be “addressed by claims under tort theories” rather than under the UCC. Id. at *5.
Moving on to fraud, plaintiff failed to plead these claims with the heightened specificity required by Fed.R.Civ.P 9(b). Plaintiff left out of his complaint the “time and place” of the allegedly fraudulent statements, the content of the statements, and what he relied on that induced him to agree to the implantation of the device. Id. at *6. That warranted dismissal of his fraudulent misrepresentation claims. Plaintiff also alleged fraudulent suppression. Under Alabama law, a party who is obligated to communicate a material fact and does not do so can be liable for fraudulent suppression. Id. But the “duty to speak” depends on several factors including the relationship between the parties. When parties deal with each other at arms’ length, there is no duty to disclose. While plaintiff alleged defendants had a duty to disclose to his physician, he did not allege any “confidential or special relationship” between himself and the defendants. Therefore, plaintiff’s fraudulent suppression claim was also dismissed. Id.
Finally, plaintiff had already amended his complaint once in response to a prior motion to dismiss—with only minor changes and none that remedied the deficiencies in these claims. The court was not inclined to give him another opportunity. Id. at *7. So, these claims are dismissed with prejudice.