Thompson v. Smith & Nephew, Inc.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

KRISTI BUFF-THOMPSON, )

)

Plaintiff, )

)

v. ) Case No. 19-cv-1232-JES-JEH

)

SMITH & NEPHEW, INC., a Delaware )

Corporation, a/k/a SMITH & NEPHEW )

Plc and/or SMITH & NEPHEW UK, )

)

Defendant, )

)

DONALD A. MITZELFELT, M.D., )

)

Respondent. )

ORDER AND OPINION

Now before the Court are Defendant Smith & Nephew, Inc.’s (“SNI”) Motion (Doc. 5) to

Dismiss for Failure to State a Claim, and Memorandum (Doc. 6) in Support; Plaintiff

Thompson’s Response (Doc. 9), and Memorandum in Support (Doc. 10); and Respondent

Mitzelfelt’s Motion (Doc. 7) to Dismiss, and Memorandum (Doc. 8) in Support. For the reasons

set forth below, Defendant SNI’s Motion (Doc. 5) is GRANTED in part and DENIED in part,

and Respondent Mitzelfelt’s Motion (Doc. 7) is GRANTED.

BACKGROUND

Plaintiff Kristi Buff-Thompson filed her Complaint against SNI in state court on March

21, 2019. See Doc. 1-3. Thereafter, SNI removed the action to this Court. In her Complaint,

Plaintiff alleges that she underwent hip replacement surgery on March 6, 2017. Id. at 2. Her

surgery was performed by Donald A. Mitzelfelt, M.D., who used a “Smith and Nephew System”

as part of the hip replacement procedure. Id. Between March 6 and March 21, 2017, Thompson

began having difficulty with her hip and had increased pain and discomfort at or near the surgery

site. On March 21, 2017, Thompson returned to the hospital complaining of severe pain and

discomfort, and Dr. Mitzelfelt performed another surgery on Thompson’s hip. At this time,

Thompson became aware that SNI’s hip replacement system had “a failed femoral head,

polyethylene and acetabular shell including its locking mechanism requiring extensive revision.”

Id. at 7. Thompson underwent additional surgeries due to the alleged defect in SNI’s hip

replacement system.

Count 1 of Plaintiff’s Complaint asserts a strict products liability claim against SNI;

Count 2 alleges breach of warranty against SNI; Count 3 asserts a negligence claim against SNI.

Additionally, under Count 4, Plaintiff designates Donald A. Mitzelfelt, M.D., as a respondent in

discovery pursuant to a state procedural statute. Id. at 11.

Defendant SNI now moves to dismiss Plaintiff’s Complaint for failure to state a claim.

See Doc. 5 (Motion), Doc. 6 (Memorandum). Additionally, Dr. Mitzelfelt moves for dismissal for

lack of subject matter jurisdiction. See Doc. 7 (Motion), Doc. 8 (Memorandum). Plaintiff filed a

Response to SNI’s Motion to Dismiss. See Doc. 9 (Response), Doc. 10 (Memorandum). Plaintiff

did not respond to Dr. Mitzelfelt’s Motion.

LEGAL STANDARD

A motion to dismiss pursuant to Rule 12(b)(6) challenges whether a complaint

sufficiently states a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). The

Court accepts well-pleaded allegations in a complaint as true and draws all permissible

inferences in favor of the plaintiff. See Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639

(7th Cir. 2015). To survive a motion to dismiss, the complaint must describe the claim in

sufficient detail to put defendants on notice as to the nature of the claim and its bases, and it must

plausibly suggest that the plaintiff has a right to relief. Bell Atlantic Corporation v. Twombly, 550

U.S. 544, 555 (2007). A complaint need not allege specific facts, but it may not rest entirely on

conclusory statements or empty recitations of the elements of the cause of action. See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). The allegations “must be enough to raise a right to relief above

the speculative level.” Twombly, 550 U.S. at 555.

DISCUSSION

(A) SNI’s Motion to Dismiss

(1) Count 1

SNI first moves for dismissal of Count 1, which asserts a strict products liability claim

against SNI. Doc. 6, at 2–4. In her Complaint, Plaintiff alleges that SNI manufactured, designed,

assembled, distributed, and sold SNI hip replacement systems; SNI sold and placed its hip

replacement system for use in Thompson’s hip replacement surgery; Thompson underwent a

second surgery to replace the “failed femoral head, polyethylene and acetabular shell including

its locking mechanism,” and that the SNI hip replacement system left control of SNI in a

condition that was unreasonably dangerous, defective, and unsafe because of the poor quality of

the components that were likely to fail. Doc. 1-3, at 6–8.

SNI argues that Plaintiff’s Complaint does not sufficiently allege a strict products liability

cause of action against it because Plaintiff fails to allege how the product was defective in either

manufacture or design. Doc. 6, at 2.

“Under Illinois law, it is well-settled that recovery in a strict product liability action

requires a plaintiff plead and prove that ‘the injury complained of resulted from a condition of

the product, that the condition was unreasonably dangerous, and that it existed at the time the

product left the manufacturer’s control.’ ” Smith v. Phoenix Seating Sys., LLC, 894 F. Supp. 2d

1088, 1093 (S.D. Ill. 2012) (quoting Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516 (2008)). A

plaintiff may prove that a product is unreasonably dangerous by showing “a physical defect, a

design defect, or a failure of the manufacturer to warn of the danger or to instruct on the proper

use of the product.” Id.

Here, Plaintiff’s Complaint sufficiently alleges each element of a strict products liability

claim. Specifically, she alleges that the condition of the product—a failure of the “femoral head,

polyethylene and acetabular shell including its locking mechanism”—caused Thompson to

undergo additional surgeries and suffer pain. She alleges that, due to the poor quality of the

components, SNI’s hip replacement system was likely to fail during ordinary use and was

therefore unreasonably dangerous for its intended purpose, and that the design or manufacturing

defect was present when it left SNI’s control. These allegations are sufficient to state a strict

products liability claim. Accordingly, Defendant’s Motion to Dismiss is denied at to Count 1.

(2) Count 2

Next, SNI moves to dismiss Count 2, which asserts a breach of warranty claim against

SNI. In her Complaint, Plaintiff alleges that SNI impliedly and expressly warranted that the hip

replacement system and materials were of merchantable quality under the Uniform Commercial

Code, that SNI breached the implied and express warranties because the hip replacement system

and material were not of merchantable quality, and that Thompson suffered injuries as a result.

Doc. 1-3, at 8–9.

SNI argues that Plaintiff’s breach of express warranty claim should be dismissed because

Plaintiff fails to identify the actual terms of the purported express warranty or facts related to the

warranty. Doc. 6, at 5. Additionally, SNI argues that Plaintiff’s breach of implied warranty claim

should be dismissed because Plaintiff fails to allege the condition that made the medical device

not merchantable at the time of sale, or how the condition caused her damages. Further, SNI

argues that Plaintiff failed to plead that she gave SNI notice that the device did not work as

intended.

In her Response, Plaintiff asserts that she “also put Defendant on notice of said defect,”

but that allegation is not set forth in Plaintiff’s Complaint. Doc. 10, at 3. Additionally, Plaintiff

argues in her Response that “Defendant impliedly warranted to Plaintiff, Plaintiff’s physicians

and health care providers, that the hip replacement products were of merchantable quality and

safe for the use for which it was intended.” Doc. 10, at 3–4.

“In a breach of express warranty action under the Illinois UCC, plaintiff must show a

breach of an affirmation of fact or promise that was made a part of the basis of the bargain.”

Oggi Trattoria & Caffe, Ltd. v. Isuzu Motors Am., Inc., 372 Ill. App. 3d 354, 360 (1st Dist. 2007)

(quoting Hasek v. DaimlerChrysler Corp., 319 Ill. App. 3d 780, 788 (1st Dist. 2001)). “Since

express warranties are contractual in nature, the language of the warranty itself is what controls

and dictates the obligations and rights of the various parties.” Id. (quoting Hasek, 319 Ill. App.

3d at 788). Thus, to state a claim for breach of an express warranty, the plaintiff must state the

terms of the express warranty or attach the warranty to the complaint. Bd. of Educ. of City of

Chicago v. A, C & S, Inc., 131 Ill. 2d 428, 460 (1989).

Here, Plaintiff fails to identify the terms of the purported express warranty or to separate

the express warranty allegations from the implied warranty allegations. Accordingly, Defendant’s

Motion is granted with respect to the express warranty claims. Plaintiff may replead her breach

of express warranty claim if she is able to identify the terms of the purported warranty.

To state a claim under Illinois law for breach of an implied warranty of merchantability,

“a plaintiff must allege that ‘(1) the defendant sold goods that were not merchantable at the time

of sale; (2) the plaintiff suffered damages as a result of the defective goods; and (3) the plaintiff

gave the defendant notice of the defect.’ ” See, e.g., CHS Acquisition Corp. v. Watson Coatings,

Inc., No. 17-CV-4993, 2018 WL 3970137, at *7 (N.D. Ill. Aug. 20, 2018) (quoting Baldwin v.

Star Sci., Inc., 78 F. Supp. 3d 724, 741 (N.D. Ill. 2015)). In order for goods to be merchantable,

they must be, inter alia, fit for the ordinary purposes for which they are used. 810 ILCS 5/2-314;

Baldwin, 78 F. Supp. 3d at 741.

Here, Plaintiff fails to allege the condition that made the medical device not merchantable

at the time of sale. It is likely that Plaintiff could cure this defect by incorporating some of the

allegations in Count 1 (paragraph 14a-e) in her breach of implied warranty claim. Additionally,

Plaintiff also fails to plead that she gave notice to SNI of the alleged defect. Accordingly, the

Court grants Defendant’s Motion with respect to the implied warranty claim, but allows Plaintiff

leave to replead this claim if she has a good faith basis for doing so.

(3) Count 3

Finally, SNI moves to dismiss Plaintiff’s negligence claim. In her Complaint, Plaintiff

alleges that SNI had a duty to manufacture, distribute, and sell the hip replacement system that

was safe and would not cause harm to foreseeable users. Plaintiff also alleges SNI had a duty to

provide instructions concerning the proper use of the hip replacement system and to provide

warnings of the dangers associated with using such system. Plaintiff further alleges that she

followed all post-operation instructions “in accordance with the product” and “as directed by the

plaintiff’s physician.” Doc. 1-3, at 9–10. Plaintiff goes on to allege that SNI acted or failed to act

in the following ways:

• failed to engage properly with the patient in the placement and use of the product;

• failed to warn of the potential for failed systems and components of the hip replacement

system;

• failed to specify any remedies for the failed system;

• failed to properly manufacture and inspect the components of the hip replacement

system;

• failed to appropriately size the correct system for use in the plaintiff; and

• failed to place a working and functional hip replacement system in plaintiff.

Doc. 1-3, at 10.

SNI argues that dismissal of Plaintiff’s negligence claim is appropriate because Plaintiff

fails to allege how SNI allegedly failed to properly manufacture and inspect the components of

the hip replacement system. Doc. 6, at 6. SNI also argues that the learned intermediary doctrine

bars Plaintiff’s negligence claims. Id. at 7.

“To establish a cause of action for negligence, a plaintiff must show the following

elements: the existence of a legal duty owed by the defendant to the plaintiff; breach of that duty;

a resulting compensable injury to the plaintiff; and that the breach was the proximate cause of the

injury.” Brobbey v. Enter. Leasing Co. of Chicago, 404 Ill. App. 3d 420, 430 (1st Dist. 2010).

However, “[u]nlike strict liability, under a theory of negligence it is not sufficient to show that

the product is defective or not reasonably safe; the plaintiff must also show that the defendant

breached a duty owed to plaintiff.” Id. (citing Cornstubble v. Ford Motor Co., 178 Ill. App. 3d

20, 24 (5th Dist. 1988)). Thus, “not only must plaintiff prove that the product was not reasonably

safe, but also that the defendant knew, or in the exercise of ordinary care should have known, of

that unsafe condition.” Id. (citing Cornstubble, 178 Ill. App. 3d at 24). In other words, “[t]he key

distinction between a negligence and strict liability claim is the concept of fault, as a defendant’s

fault, in addition to the condition of the product, is at issue in a negligence claim.” Smith v.

Phoenix Seating Sys., LLC, 894 F. Supp. 2d 1088, 1098 (S.D. Ill. 2012). “In medical device

cases, Illinois employs the learned intermediary doctrine, under which manufacturers have a duty

to warn physicians of a ‘device’s dangerous propensities, and physicians, in turn, using their

medical judgment, have a duty to convey any relevant warnings to their patients.’ ” Griffin v.

Medtronic, Inc., No. 17 CV 927, 2017 WL 4417821, at *3 (N.D. Ill. Oct. 5, 2017) (quoting

Hansen v. Baxter Healthcare Corp., 309 Ill. App. 3d 869, 881 (1st Dist. 2002)).

Here, Plaintiff fails to rebut Defendant’s arguments with respect to the negligence claim.

Rather, Plaintiff simply asserts that she should be allowed to conduct discovery and then amend

her Complaint. Doc. 10, at 4–5. The Court agrees with Defendant that Plaintiff fails to allege

how SNI failed to properly manufacture and inspect the components of the hip replacement

system. Again, it is likely that Plaintiff could cure this defect by incorporating some of the

allegations in Count 1 (paragraph 14a-e) in her negligence claim. Moreover, Plaintiff’s

allegations that SNI “failed to engage properly with the patient,” “failed to warn of the potential

for failed systems and components,” “failed to specify any remedies for the failed system” and

“failed to appropriately size the correct system for use in plaintiff” are both conclusory and

appear to be barred by the learned intermediary doctrine. See Griffin v. Medtronic, Inc., No. 17

CV 927, 2017 WL 4417821, at *4 (N.D. Ill. Oct. 5, 2017) (“[U]nder the learned intermediary

doctrine, Medtronic did not owe Griffin a duty to warn him of anything, so any claim based on a

failure to warn Griffin is dismissed.”).

Because Plaintiff has not had the opportunity to file a complaint in this Court or to amend

her original Complaint, the Court will allow Plaintiff 21 days to file an amended complaint

curing the deficiencies identified above. However, Plaintiff is cautioned that a failure to respond

to the alleged deficiencies identified in a motion to dismiss will result in dismissal. See Alioto v.

Town of Lisbon, 651 F.3d 715, 718, 721 (7th Cir. 2011) (“[A] litigant effectively abandons the

litigation by not responding to alleged deficiencies in a motion to dismiss.”); Grzanecki v. Smith

& Nephew, Inc., No. 18-CV-00204, 2019 WL 2297452, at *3 (N.D. Ill. May 30, 2019) (stating

that the plaintiff “forfeited her right to continue litigating her claim” against the defendant by

failing to respond to a motion to dismiss); Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039,

1043 (7th Cir. 1999).

(B) Mitzelfelt’s Motion to Dismiss

Finally, Dr. Mitzelfelt moves for dismissal for lack of subject matter jurisdiction. Docs. 7,

8. Dr. Mitzelfelt was named as a respondent in discovery in the state court action. See 735 ILCS

5/2-402. In Illinois, respondents in discovery are distinguished from named defendants. Boothe v.

Marshall Browning Hosp., No. 12-CV-025-MJR-SCW, 2012 WL 3308778, at *2 (S.D. Ill. Aug.

13, 2012) (“This Court reads Section 2–402 as plainly distinguishing a respondent in discovery

from a party defendant. It is axiomatic that if the statute provides a process by which a

respondent in discovery may become a defendant, then a respondent in discovery is not a

defendant to an action.”). In his Motion, Respondent Mitzelfelt argues that he is not a named

defendant and should therefore be dismissed from this case. Plaintiff failed to respond to

Mitzelfelt’s Motion, and it does not appear that Plaintiff intends to pursue any claims against

Mitzelfelt in this case. Accordingly, the Court grants Respondent Mitzelfelt’s Motion and

dismisses him from this case. Alioto, 651 F.3d at 721 (7th Cir. 2011).

CONCLUSION

For the reasons set forth above, Defendant SNI’s Motion (Doc. 5) is GRANTED in part

and DENIED in part, and Respondent Mitzelfelt’s Motion (Doc. 7) is GRANTED. The Clerk is

directed to dismiss Respondent Mitzelfelt from the case. Plaintiff may file an amended complaint

curing the deficiencies identified above with 21 days of this Order.

Signed on this 13th day of September, 2019.

s/ James E. Shadid

James E. Shadid

United States District Judge