Perkins v. Johnson & Johnson

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

JAMY SUE PERKINS, )

)

Plaintiff, )

)

v. ) Case No. 20-CV-3267

)

JOHNSON & JOHNSON and )

ETHICON, Inc. )

)

Defendants. )

OPINION AND ORDER

SUE E. MYERSCOUGH, U.S. District Judge:

Before the Court is Defendant Johnson & Johnson’s and

Defendant Ethicon, Inc.’s (collectively, Defendants) Motion to

Dismiss (d/e 12) Plaintiff Jamy Sue Perkins’ Complaint (d/e 1).

Plaintiff’s claims in Counts I, II, and X plausibly state injuries for

which relief may be granted under Federal Rule of Civil Procedure

12(b)(6), while Counts III, IV, V, VI, VII, VIII, IX, and XI do not.

Therefore, Defendant’s motion is GRANTED in part and DENIED in

part.

I. BACKGROUND

Defendants have filed their Motion to Dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6). When considering a motion

under Rule 12(b)(6), the Court “construe[s] [the complaint] in the

light most favorable to the nonmoving party, accept[ing] well-

pleaded facts as true, and draw[ing] all inferences in [the party’s]

favor.” Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016)

(citing Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th

Cir. 2010)). Using this standard, the allegations in the Complaint

are considered below.

Plaintiff Jamy Sue Perkins filed her Complaint (d/e 1) against

Defendants Johnson & Johnson and Ethicon, Inc on October 6,

2020. Plaintiff alleges various product liability and negligence and

personal injury claims against Defendants stemming from injuries

Plaintiff sustained after she had a prescription medical device

surgically implanted in her body on October 21, 2016. The device,

called a TVT-O, was implanted to treat stress urinary incontinence

(SUI). The TVT-O was designed, manufactured, packaged, labeled,

and sold by Defendants. Once the TVT-O was implanted, Plaintiff

alleges she suffered extreme pain, mesh erosion, and other injuries

which would not have occurred but for the TVT-O’s allegedly

defective nature and Defendants’ wrongful conduct. Eventually,

Plaintiff had the TVT-O surgically removed on March 17, 2017.

On October 6, 2020, Plaintiff filed her Complaint. In it,

Plaintiff alleges the injuries she experienced amount to eleven

Counts of product liability and personal injury. Specifically,

Plaintiff alleges one Count of negligence, one Count of defective

design, one Count of defective manufacturing, one Count of failure

to warn, one Count of common law fraud, one Count of constructive

fraud, one Count of breach of an express warranty, one Count of

breach of implied warranty, one Count of “Discovery Rule, Tolling,

and Fraudulent Concealment,” and one Count of “Punitive

Damages.” Defendants filed the instant Motion to Dismiss (d/e 12)

on April 19, 2021.

II. ANALYSIS

Defendants first argue that Illinois’ two-year statute of

limitations for personal injury and product liability cases, codified

at 735 ILCS 5/13-202 & 213(d), applies to each of Plaintiff’s claims.

Defendants argue that Plaintiff’s case is, therefore, time-barred

because Plaintiff filed her Complaint more than two years after

Plaintiff had the TVT-O removed. Plaintiff concedes that the two-

year bar applies to each claim but argues that the two-year statute

did not begin tolling until “a date within the applicable statute of

limitations for filing Plaintiff’s claims.” Pl.’s Opp. (d/e 15) p. 3

(quoting Compl. (d/e 1) at ¶ 146). Defendants point to Plaintiff’s

alleged date of discovery as too indefinite to pass muster under

analysis of Illinois’ statute of limitations law. In response, Plaintiff

argues that Defendants’ objections regarding the statute of

limitations are, themselves, untimely brought at the motion to

dismiss stage.

Statute of limitations defenses, like those Defendants argue

here, are affirmative defenses which Plaintiffs are not required to

anticipate or plead around in federal court. Sidney Hillman Health

Ctr. of Rochester v. Abbott Labs., Inc., 782 F.3d 922, 928 (7th Cir.

2015) (quoting Cancer Found., Inc. v. Cerberus Capital Mgmt., LP,

559 F.3d 671, 674 (7th Cir. 2009) (“Dismissing a complaint as

untimely at the pleading stage is an unusual step, since a

complaint need not anticipate and overcome affirmative defenses,

such as the statute of limitations.”) This is because conclusions

regarding statutes of limitations defenses “typically turn on facts

not before the court at” the motion to dismiss stage. Id. (quoting

Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th

Cir. 2012)). Defendants insist that Plaintiff has alleged facts

sufficient to establish the statute of limitations defense and, as a

result, effectively pled herself out of court because she gave an

indefinite date in her Complaint. Def.’s Mot. (d/e 13) at p. 4 (citing

Hollander v. Brown, 457 F.3d 688, 692 n.1 (7th Cir. 2006).

However, dismissal at the pleading stage is appropriate “only

where the allegations of the complaint itself set forth everything

necessary to satisfy the affirmative defense.” Abbott, 782 F.3d at

928 (quoting Chi. Bldg. Design, P.C. v. Mongolian House, Inc., 770

F.3d 610, 613–14 (7th Cir.2014)). “As long as there is a conceivable

set of facts, consistent with the complaint, that would defeat a

statute-of-limitations defense, questions of timeliness are left for

summary judgment (or ultimately trial), at which point the district

court may determine compliance with the statute of limitations

based on a more complete factual record.” Id. Indeed, “[u]nless the

complaint alleges acts that create an ironclad [statute of limitations]

defense, a limitations argument must await factual development.”

Foss v. Bear, Stearns & Co., Inc., 394 F.3d 540, 542 (7th Cir.

2005). A pleading which would create an ironclad defense, for

example, would be an allegation that a plaintiff’s injuries occurred

on a specific date outside the statute of limitations period.

In contrast, Plaintiff has alleged that she discovered her injury

within the two-year statute of limitations period required under

Illinois law. Compl. ¶ 146. That allegation answers the question of

“whether there is any set of facts that if proven would establish a

defense to the statute of limitations” in the affirmative. Clark v.

City of Braidwood, 318 F.3d 764, 767 (7th Cir. 2003) (emphasis in

original); see also Early v. Bankers Life & Cas. Co., 959 F.2d 75, 80

(7th Cir. 1992) (“[W]hen a complaint is dismissed at the pleadings

stage the question is not what are the facts, but is there a set of

facts that if proved would show that the case had merit?”) While

the indefinite date given in the Complaint raises more questions

than it answers, a more complete factual record is necessary before

the Court can determine whether Plaintiff’s suit is untimely. At this

stage, Plaintiff’s allegations do not “create an ironclad defense,” and

so Defendants’ “limitations argument must await factual

development.” Foss, 394 F.3d at 542.

a. Counts III, IV, V, VI, VII, VIII, IX, and XI of Plaintiff’s

Complaint do not allege sufficient facts to support the

claims made therein and are, therefore, dismissed

without prejudice.

Defendants next argue that each of Plaintiff’s product liability

and personal injury claims should be dismissed because the claims

fail the pleading standards of Rule 12(b)(6) of the Federal Rules of

Civil Procedure.

A motion to dismiss under Rule 12(b)(6) challenges the

sufficiency of the complaint. Christensen v. Cnty. of Boone, Ill., 483

F.3d 454, 458 (7th Cir. 2007). To state a claim for relief, a plaintiff

need only provide a short and plain statement of the claim showing

she is entitled to relief and giving the defendants fair notice of the

claims. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.

2008). While the facts of the complaint are accepted as true and

viewed in the light most favorable to the plaintiff, courts “are not

bound to accept as true legal conclusions couched as a factual

allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A

pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’” Id. Still,

the plaintiff need only provide “enough detail to give the defendant

fair notice of what the claim is and the grounds upon which it rests,

and, through his allegations, show that it is plausible, rather than

merely speculative, that he is entitled to relief.” Tamayo, 526 F.3d

at 1083.

Following Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938),

the Court, while sitting in diversity pursuant to 28 U.S.C. § 1332,

applies Illinois statutory and case law when analyzing each of

Plaintiff’s personal injury and product liability claims.

i. Count II: Design Defect

To state a claim of strict product liability for a design defect

under Illinois law, a plaintiff need only plead (1) that the injury

resulted from a condition of the product, (2) the condition was

unreasonably dangerous, and (3) the condition existed at the time

the product left the manufacturer’s control. Mikolajczyk v. Ford

Motor Co., 231 Ill.2d 516, 525 (Ill. 2008). A plaintiff may prove a

product is unreasonably dangerous by showing either “a physical

defect in the product itself, a defect in the product’s design, or a

failure of the manufacturer to warn of the danger or to instruct on

the proper use of the product.” Id. In order to meet the pleading

standards of Rule 12(b)(6), a plaintiff must “plead facts that show

how the [product] was so defective in either its manufacturing or

design as to make it unreasonably dangerous, or why the

[product’s] package warnings were inadequate to warn Plaintiff of

any alleged unreasonable danger.” Corwin v. Conn. Valley Arms,

Inc. 74 F.Supp.3d 883, 890–91 (N.D. Ill. Nov. 17, 2014).

Here, Plaintiff has so pled. In her Complaint, Plaintiff claims

that the TVT-O was designed in a myriad of ways which, Plaintiff

claims, rendered the TVT-O unreasonably dangerous and defective.

For example, Plaintiff states, inter alia, that the use of

polypropylene in the TVT-O causes injuries and that the design of

the TVT-O increases the risk that it would have increased

propensities to shrink and contract. Moreover, that the TVT-O

would shrink and contract in an area of the body with high

bacteria, Plaintiff claims, also makes it unreasonably dangerous.

Additionally, Plaintiff alleges the date she received the TVT-O,

Compl. at ¶ 22, and that the TVT-O caused both the complications

she experienced thereafter and her injuries, id. at ¶ 26–28. These

allegations adequately provide a short and plain statement of

Plaintiff’s claims and provide Defendants with fair notice of the

claims against them. Therefore, Defendants’ motion to dismiss is

denied as to Plaintiff’s design defect claims in Count II.

ii. Count III: Manufacturing Defect

Plaintiff also alleges Defendant defectively manufactured the

TVT-O. “A manufacturing defect occurs when one unit in a product

line is defective.” Salerno v. Innovative Surveillance Tech., Inc., 402

Ill.App.3d 490, 497 (1st Dist. 2010). As Defendants point out, and

Plaintiff concedes, the Complaint does not allege any facts which

would establish that the particular TVT-O Plaintiff received

contained a manufacturing defect which differentiated it from other

products in the same line. Plaintiff’s allegations, then, are

insufficient to state a claim of manufacturing defect under Illinois

law. Therefore, Plaintiff’s manufacturing defect claim in Count III of

her Complaint is dismissed without prejudice.

iii. Count IV: Failure to Warn

Defendants next challenge the sufficiency of Plaintiff’s failure

to warn claims in Count IV of Plaintiff’s Complaint. Under Illinois

law, a plaintiff must show that the manufacturer had a duty to

warn of a defect, that the manufacturer knew or should have known

the risk that the product would cause the injury, that the

manufacturer failed to warn of the risk, that such a failure made

any other warning inadequate, and that the absent or inadequate

warning proximately caused the injury suffered. Northern Tr. Co. v.

Upjohn Co., 213 Ill.App.3d 390, 401 (1st Dist. 1991). “Generally,

the manufacturer of a prescription medical device has a duty to

warn prescribing physicians or other health professionals who may

prescribe the device of the product’s known dangerous

propensities.” Hansen v. Baxter Healthcare Corp., 198 Ill.2d 420,

430 (Ill. 2002). Significantly, the plaintiff must allege that, had the

plaintiff’s healthcare professionals been adequately warned, they

would not have prescribed or recommended or used the product.

See Northern Tr. Co., 213 Ill.App.3d at 402; Vaughn v. Ethicon,

Inc., 2020 WL 5816740, at *4 (Sept. 30, 2020) (“Stated another way,

the plaintiff must be able to prove that if there had been a proper

warning, the learned intermediary . . . would have declined to

prescribe or recommend the product.”)

Plaintiff has not adequately pleaded a failure to warn claim

under Illinois law. While Plaintiff does allege that Defendants

breached their duty to warn Plaintiff and her physician, Compl. at ¶

34, and that such warnings may have “affected” her physician’s use

of the TVT-O, id. at ¶ 45, Plaintiff does not allege that her physician

would not have recommended or used the TVT-O had she been

properly warned. Instead, Plaintiff only alleges that she would not

have “purchased, used, consented to or relied on” the TVT-O. Such

allegations do not address whether the physician who implanted the

TVT-O would have still recommended or used the TVT-O had the

physician been adequately warned of the alleged dangerousness of

the product. Therefore, Plaintiff’s failure to warn claim in Count IV

is dismissed without prejudice.

iv. Counts I and X: Negligence and Gross Negligence

To prove product liability based on negligence in Illinois, a

plaintiff must allege facts that establish “the existence of a duty of

care owed by the defendant, a breach of that duty, an injury that

was proximately caused by that breach, and damages.” Calles v.

Scripto-Tokai Corp., 224 Ill.2d 247, 263 (Ill. 2007). In addition to

the issue of the product’s condition, “[t]he crucial question in a

negligent-design case is whether the manufacturer exercised

reasonable care in the design of the product.” Id. at 263–64. So, to

state a claim of negligent design, Plaintiff must plead facts alleging

fault in addition to the elements of defective design.

As already discussed, Plaintiff has adequately pleaded facts

alleging defective design in strict liability in Illinois law. The only

question is whether Plaintiff has also adequately alleged fault. She

has. In her Complaint, Plaintiff alleges that Defendants “have

known and continue to know that some of the predicate products

for their pelvic mesh products,” such as the TVT-O, “had high

failure and complication rates.” Compl. at ¶ 150. Plaintiff also

alleges that Defendants “had sole access to material facts

concerning the defective nature” of the TVT-O. Id. at ¶ 152.

Finally, Plaintiff states that her injuries, including additional

surgery and other additional medical treatment, were both directly

and proximately caused by the Defendants’ negligence. Put

together, the allegations set forth in Plaintiff’s negligence claims

adequately raise a “reasonable inference that the defendant is liable

for the misconduct alleged,” namely, that Defendants did not

exercise reasonable care in the design of the product. Iqbal, 556

U.S. at 678. Therefore, Defendants’ motion to dismiss Counts I and

X of Plaintiff’s Complaint is denied.

v. Counts V and VI: Fraud and Constructive Fraud

Count V and VI state claims of fraud and constructive fraud.

Both fraud and constructive fraud claims are subject to the

heightened pleading standards of Federal Rule of Civil Procedure

9(b), which mandates that “a party must state with particularity the

circumstances constituting fraud or mistake,” but “[m]alice, intent,

knowledge, and other conditions of a person’s mind may be alleged

generally.” The plaintiff must “state the identity of the person who

made the misrepresentation, the time, place and content of the

misrepresentation, and the method by which the misrepresentation

was communicated to the plaintiff.” Vicom, Inc. v. Harbridge

Merch. Servs., Inc., 20 F.3d 771, 777 (7th Cir. 1994).

Here, Plaintiff does not sufficiently allege circumstances to

meet this heightened Rule 9(b) standard. Instead, Plaintiff

allegations are stated in general terms. For instance, Plaintiff

alleges that Defendants “falsely and fraudulently represented and

continue to represent to the medical and healthcare community

[and] Plaintiff” that the TVT-O had been tested and found to be safe.

Compl. at ¶ 91. However, such statements are missing the

particulars of the individual making the misrepresentation as well

as the time, place, and method in which the misrepresentation was

made. As a result, Plaintiff’s fraud and constructive fraud claims

do not meet the enhanced pleading standard of Rule 9(b) and

Counts V and VI are dismissed without prejudice.

vi. Counts VII and VIII: Breach of Implied and Express

Warranties

Plaintiff’s claims of breaches for implied and express

warranties are similarly dismissed. Under Illinois law, “[t]o state a

claim for breach of implied warranty of fitness for a particular

purpose, plaintiffs ‘must allege that (1) the seller had reason to

know of the particular purpose for which the buyer required the

goods; (2) the buyer relied on the seller's skill and judgment to

select suitable goods; and (3) the seller knew of the buyer's reliance

on its skill and judgment.’” In re McDonald’s French Fries Litig.,

503 F.Supp.2d 953, 957 (N.D. Ill. 2007) (quoting Indus. Hard

Chrome Ltd v. Hetran, Inc., 64 F.Supp.2d 741, 746 (N.D. Ill. 1999)).

Additionally, the plaintiff must allege that the product was used in

a manner outside its ordinary intended use. See 810 ILCS 5/2-

315.

To state a claim for breach of the implied warranty of

merchantability, a plaintiff must allege facts which establish that

the product is “not fit for the ordinary purposes for which such

goods are used.” 810 ILCS 5/2-314. Additionally, the implied

warranty of merchantability is breached “only if the defect in the

goods existed when the goods left the seller’s control.” Lipinski v.

Martin J. Kelly Oldsmobile, Inc., 325 Ill.App.3d 1139, 1150 (1st

Dist. 2001).

Finally, under Illinois law, an express warranty is created by

“[a]ny affirmation of fact or promise made by the seller to the buyer

which relates to the goods and becomes part of the basis of the

bargain.” 810 ILCS 5/2-313(a). So, to sufficiently plead a breach of

an express warranty, a plaintiff must allege that a defendant seller

made an affirmation of fact or promise which formed 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).

In this case, Plaintiff has not stated a claim for a breach of

either an express or implied warranty. Plaintiff cites Elward v.

Electrolux Home Products, Inc. to argue that “whether express or

implied warranties have been breached involves ‘disputed issue[s] of

fact that cannot be resolved at this [motion to dismiss] stage.’” Pl.’s

Br. (d/e 15) p. 13 (quoting Elward, 264 F.Supp.3d 877, 886 (N.D.

Ill. 2017). However, in reality, Elward states that “the alleged

unconscionability of the warranty provisions” in that case involved

“a disputed issue of fact that cannot be resolved at” the motion to

dismiss stage. Elward, 264 F.Supp.3d at 886. Elward does not

state that all issues regarding whether warranties have been

breached can never be resolved at the motion to dismiss stage.

More importantly, Plaintiff’s Complaint does not allege facts

sufficient to plead breaches of either implied warranties or express

warranties. First, Plaintiff does not allege that the TVT-O was used

for a purpose outside its ordinary intended use, and so her claim of

breach of an implied warranty for fitness for a particular purpose

must fail. See 810 ILCS 5/2-315. Plaintiff’s claim of breach of an

implied warrant of merchantability is similarly defecient because

her Complaint only offers recitations of elements of law and does

not mention facts supporting any allegation that a defect in the

TVT-O existed when it left Defendants’ control, never mind the fact

that the Complaint alleges violations of “Common Law principles

and the statutory provisions of the State of Virginia” rather than the

law of Illinois. Compl. at ¶ 141 (emphasis added). Finally, Plaintiff

only alleges vague references to “assurances,” “misrepresentations,”

and “representations” made by Defendants to Plaintiff and

healthcare professionals without specifying any express affirmation

of fact or promise which would form the basis of a bargain between

Defendants and Plaintiff. Without that foundation, Plaintiff’s

breach of an express warranty claim does not rise to the standard

required by Rule 12(b)(6). Therefore, each of Plaintiff’s claims of

express and implied warranties in Counts VII and VIII are dismissed

without prejudice.

vii. Counts IX and XI: “Discovery Rule, Tolling, and Fraudulent

Concealment” and Punitive Damages

Defendants lastly challenge the sufficiency of Plaintiff’s

Complaint regarding Counts IX and XI, which are captioned

“Discovery Rule, Tolling, and Fraudulent Concealment” and

“Punitive Damages” respectively. However, the parties do not

dispute that neither the “legal principles” stated in Count IX nor the

punitive damages requested in Count XI consist of legal claims for

which relief may be granted. See Vincent v. Alden-Park Strathmoor,

Inc., 241 Ill.2d 495, 504 (Ill. 2011) (“Of course, a prayer for punitive

damages is not, itself, a cause of action. Punitive damages are

merely a type of remedy.”) Instead, Plaintiff merely asserts that the

“legal principles” stated in Count IX and punitive damages generally

should apply to her case. Pl.’s Br. (d/e 15) at p. 14. Because

neither Count IX nor Count XI state a legal claim on which relief

may be granted, those claims are dismissed.

III. CONCLUSION

For the forgoing reasons, Defendants’ Motion to Dismiss (d/e

12) is GRANTED in part and DENIED in part. Counts III, IV, V, VI,

VII, VIII, IX, and XI are dismissed without prejudice. While the

Court dismisses those Counts, Plaintiff is given 21 days from the

date of this Order to file an Amended Complaint addressing the

deficiencies identified.

IT IS SO ORDERED.

ENTERED: December 23, 2021

FOR THE COURT:

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE