The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:19-cv-299-BO
SYLVIA RESENDEZ, )
Plaintiff.
v. ORDER
C.R. BARD, INC. and BECTON
DICKINSON. INC.., )
Detendants.
This matter is before the Court on defendants’ motion to dismiss [DE 13]. For the reasons
discussed below, the motion [DE 13] is GRANTED IN PART and DENIED IN PART.
BACKGROUND
Plaintiff brings this action to recover for injuries suffered from the Bard Ajust, a
polypropylene pelvic mesh product that was implanted in her in September 2011. Though never
part of the multidistrict litigation in the Southern District of West Virginia, this case is similar to
thousands of other cases brought against Bard and other medical device companies concerning
transvaginal surgical mesh.
Plaintiff brings claims in negligence, strict lability, breach of express warranty, breach of
implied warranty, and for punitive damages. Defendants filed the instant motion pursuant to
Federal Rule of Civil Procedure 12(b)(6) to dismiss all but plaintiff's claim for negligent design.
Plaintiff has voluntarily dismissed her claims based in strict hability and her punitive damages
]
claim to the extent it was alleged in the complaint as a separate cause of action, Defendants’ motion
is fully briefed and is ripe for disposition.
DISCUSSION
“A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint.”
Francis v. Giacomelli, 588 F.3d 186. 192 (4th Cir. 2009). To survive a Rule 12(b)(6) challenge,
plaintiff's complaint must articulate facts. that when taken as true, show plaintiff has stated a claim
for relief that is facially plausible. /d. at 193 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Facial plausibility means that the facts pleaded “allow[ | the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” and mere recitals of the elements of a cause
of action supported by conclusory statements do not suffice. /gbal, 556 U.S. at 678.
Under North Carolina's choice-of-law rules, the substantive laws of North Carolina govern
this case because plaintiffs alleged injuries occurred in North Carolina. \Wartin Marietta
Materials, Inc. v. Bondhu, LLC, 241 N.C. App. 81. 83 (2015).
Throughout their motion to dismiss, defendants advance arguments that the MDL court
repeatedly rejected in cases arising from North Carolina. Defendants offer no justification as to
why this Court should depart from the approach taken by the MDL court.
Negligence—Failure to Warn
Plaintiff has sufficiently alleged that defendants made misrepresentations to the medical
community and to her implanting surgeon, and that these misrepresentations were the proximate
cause of her injuries. Her negligent failure to warn claim is not barred by the learned intermediary
doctrine. See e.g... Justus v. Ethicon, Inc.. 2016 WL 7404712, at *3 (S.D.W.Va. Dec. 21. 2016):
Simmons v. Bos. Sci. Corp., 2015 WL 2137145, at *4 (S.D.W.Va. May 7, 2015): In re Bos. Sei.
Corp., Pelvic Repair Sys. Prod. Liab. Litig., 2015 WL 1509380, at *5 (S.D.W.Va. Apr. 1, 2015).
Negligence—Manutacturing Detect
Plaintiffs complaint is devoid of allegations stating a plausible claim for negligent
manufacturing. Rather, plaintiffs complaint targets the design. the materials, and certain
propensities inherent in the Bard Ajust. These are allegations supporting a negligent design claim,
not a negligent manufacturing claim. Simmons, 2015 WL 2137145. at *5. Accordingly, plaintiff's
negligent manufacturing claim is dismissed.
Breach of Express Warranty
Plaintiff has sufficiently alleged that defendants misrepresented to the medical and
healthcare community, including to her implanting surgeon, that the Bard Ajust was safe and
effective for treating stress urinary incontinence and pelvic organ prolapse. And as the MDL court
determined. plaintiffs breach of express warranty claim is not barred for lack of privity under
North Carolina law because plaintiff plausibly alleged that she relicd on her surgeon’s medical
judgment, which was formed by defendants’ express warranties. See, e.g., Justus, 2016 WL
7404712, at *5 (citing Alberti v. Manufactured Homes, Inc..329 N.C. 727, 736-37 (1991)): Felan
v. Bos. Sci. Corp... 2015 WL 2137180, at *7 (S.D.W.Va. May 7, 2015) (same)): Brown v. Bos. Sci.
Corp.. 2015 WL 1956346, at *6 (S.D.W.Va. Apr. 29, 2015) (same).
Breach of Implied Warranty
Plaintiff has sufficiently alleged that defendants negligently designed the Bard Ajust.
Accordingly. plaintiff has also sufficiently alleged that the product violated the implied warranty
of merchantability. See, e.g... Felan, 2015 WL 2137180, at *6; Frankum v. Bos. Sei. Corp., Z015
WE 1956298, at *7 (S D.W.Va. Apr. 29.2015).
CONCLUSION
For the reasons discussed above, defendants’ motion [DE 13] is GRANTED IN PART and
DENIED IN PART. Plaintiffs claims based for strict liability, negligent manufacturing. and
punitive damages as a separate cause of action are DISMISSED. Plaintiff's claims for negligent
design. negligent failure to warn, breach of express warranty, and breach of implied warranty will
go forward,
SO ORDERED, this { q day of April, 2020.
Te W. BOYLE /
CHIEF UNITED STATES DISTRICT JUDGE