Citations
- 372 F. Supp. 3d 1166
Full opinion text
James O. Browning, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on the Defendants' Motion to Dismiss, filed March 23, 2018 (Doc. 27)("MTD"). The Court held a hearing on August 10, 2018. The primary issues are: (i) whether the applicable statutes of limitations bar Plaintiff Janice Nowell's claims against Defendants Medtronic Inc., Covidien PLC, Covidien LP, and Medtronic PLC for negligence, strict liability -- design defect, manufacturing defect, and failure-to-warn -- breach of express warranty, and breach of implied warranty; and (ii) whether Nowell has alleged with specificity how the Defendants' product is defective and how that defect caused her injuries. The Court will grant the MTD. Nowell's warranty claims are untimely, because Nowell alleges that her physician used the Defendants' defective product to repair her hernia on October 27, 2010, but Nowell did not file her original Complaint for Damages for Personal Injury Resulting From Negligence, Strict Liability and Breach of Warranties (Doc. 1)("Complaint"), until October 5, 2017, almost three years after the expiration of the four-year statute of limitations governing express and implied warranty claims. See N.M. Stat. Ann. § 55-2-725(1). Nowell's negligence and strict liability claims are untimely, because the Second Amended Complaint for Damages for Personal Injury Resulting from Negligence, Strict Liability and Breach of Warranties, filed January 19, 2018 (Doc. 24-1)("Amended Complaint"), indicates that Nowell was aware of cognizable tort injuries between April, 2011, and March, 2014, but did not file her original Complaint until October 5, 2017, after the three-year statute of limitations governing negligence and strict liability claims had expired. See N.M. Stat. Ann. § 37-1-8. Moreover, the Court concludes that Nowell's factual allegations lack specificity sufficient to satisfy the pleading standard that the Supreme Court of the United States of America articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Nowell's negligence claim does not plead facts alleging causation. Her strict liability claims do not allege any specific defect -- in either design, manufacture, or warning -- that made the Defendants' product unreasonably dangerous and caused her injuries. Moreover, Nowell has not alleged that a feasible alternative design existed which lacked the alleged design defect and that therefore would have prevented her injuries. See Morales v. E.D. Etnyre & Co., 382 F.Supp.2d 1278, 1283 (D.N.M. 2005) (Browning, J.)("Thus, to the extent that a plaintiff could come to court and merely criticize a product, the Court believes that the New Mexico law required the plaintiff to propose an alternative design."). Nowell does not allege an affirmation or representation that could support her express warranty claim. Furthermore, Nowell does not allege with sufficient specificity a defect that rendered the Defendants' product sufficiently unfit for its particular purpose or sufficiently unmerchantable to support her claim for breach of implied warranty. Finally, Nowell has not alleged facts sufficient to support a finding that the Defendants' conduct maliciously, intentionally, fraudulently, oppressively, recklessly, or wantonly offended Nowell's rights such that Nowell is entitled to punitive damages. Accordingly, the Court will grant the MTD and dismiss the case with prejudice.
FACTUAL BACKGROUND
The Court takes the facts from the Amended Complaint. As this matter comes before the Court on a motion to dismiss pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court assumes that all facts in the Complaint are true, see Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (stating that, to survive a motion to dismiss, "[f]actual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)"), and "grants all reasonable inferences from the pleadings in that party's favor," Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1141 (10th Cir. 2012).
According to the Amended Complaint, on October 27, 2010, Nowell had an operation with Dr. William Pollard to repair a fifteen centimeter "superiorperiumbilical hernia." Amended Complaint ¶ 38, at 8. At the time, Dr. Pollard implanted a twenty centimeter "Parietex Mesh Composite" to repair Nowell's hernia. Amended Complaint ¶ 38, at 8. Subsequently, the mesh began to "pull away from the actual edges," and on April 27, 2011, Nowell had a second surgery wherein Dr. Pollard used additional sutures to reinforce the existing Parietex mesh. Amended Complaint ¶ 38, at 8. Dr. Pollard did not inform Nowell of any problems with the mesh and, after the surgery, noted that Nowell "was doing well." Amended Complaint ¶ 38, at 8. Between April 27, 2011, and March 1, 2014, Nowell "began experiencing symptoms including but not limited to exhaustion and pain in the area of the mesh." Amended Complaint ¶ 38, at 8. During this period, "Nowell was skeptical as to whether the mesh was causing these problems"; however, Dr. Pollard did not advise her that the mesh was causing these issues. Amended Complaint ¶ 38, at 8. On March 1, 2014, Nowell underwent a CT scan. See Amended Complaint ¶ 38, at 8. The physicians who performed Nowell's CT scan neither concluded nor advised Nowell that the mesh was causing her issues. See Amended Complaint ¶ 38, at 8. The physicians were unable to diagnose the symptoms' cause, because Nowell "apparently had cysts in the area associated with the mesh." Amended Complaint ¶ 38, at 8. On October 6, 2014, Nowell underwent another CT scan, which "revealed a large fluid collection associated with the mesh" and a corresponding staph infection. Amended Complaint ¶ 38, at 8. On October 8, 2014, "Dr. Powell" informed Nowell that "there was no choice but to remove the Parietex mesh and replace it with a biological mesh," which he "memorialized ... in his treatment notes." Amended Complaint ¶ 38, at 8. Moreover, during this discussion, Dr. Pollard told Nowell "that there was a problem with the mesh itself." Amended Complaint ¶ 38, at 8. "On or about October 20, 2014," Dr. Pollard removed the "infected and disintegrated (unincorporated)" Parietex mesh from Nowell's abdomen. Amended Complaint ¶ 38, at 8.
PROCEDURAL BACKGROUND
On October 5, 2017, Nowell filed suit in the United States District Court for the District of New Mexico, alleging six causes of action: (i) negligence; (ii) strict liability -- design defect; (iii) strict liability -- manufacturing defect; (iv) strict liability -- failure-to-warn; (v) breach of express warranty; and (vi) breach of implied warranty. See Complaint ¶¶ 103-155, at 18-32, filed October 5, 2017 (Doc. 1)("Complaint"). Nowell subsequently amended the Complaint on October 6, 2017, see First Amended Complaint for Damages for Personal Injury Resulting from Negligence, Strict Liability and Breach of Warranties, filed October 6, 2017 (Doc. 4), and again on January 19, 2018, but alleges the same claims, see Amended Complaint ¶¶ 103-155, at 22-36.
Nowell contends that the Defendants were negligent in failing to use reasonable care and breached their duty to Nowell "in designing, manufacturing, marketing, labeling, packaging and selling" the mesh. Amended Complaint ¶ 104, at 22. Specifically, Nowell contends that the mesh's design "did not provide for sufficient resiliency which caused the Product to disintegrate in Plaintiff," and that the mesh's manufacturing process caused "an unreasonable risk of harm to women in whom the Product was implanted, including the Plaintiff." Amended Complaint ¶ 105, at 23. Nowell further alleges that the Defendants did not use reasonable care in the mesh's testing and inspection, in instructing physicians in how to use the mesh, and in evaluating the mesh's safety "to determine the nature, magnitude, and frequency of serious, life threatening complications that were known or knowable." Amended Complaint ¶ 105, at 23. Nowell further alleges that the Defendants' mesh is unreasonably dangerous and defective, because the mesh material causes adverse reactions and injuries; the mesh design facilitated harmful bacteria growth, which caused "immune reactions and subsequent tissue breakdown and adverse reactions and injuries;" and the mesh has a propensity "to disintegrate inside the body," "to deform when subject to prolonged tension inside the body," to cause "adverse tissue reactions," and to create "a non-anatomic condition in the abdomen leading to chronic pain and functional disabilities when the mesh is implant[ed] according to the manufacturers instructions." Amended Complaint ¶ 106, at 23-24. Nowell adds that her "adverse tissue reactions ... are causally related to infection, as the materials used to construct the Product are foreign." Amended Complaint ¶ 106, at 24.
Nowell also alleges that the Defendants "negligently failed to warn" her and/or her healthcare providers about the mesh's "propensities to deform inside the body," about "degradation, fragmentation and/or creep," about "the rate and manner of mesh erosion or extrusion," and about the mesh's risks, including "chronic infections" and "recurrent, intractable abdominal pain and other pain." Amended Complaint ¶ 107, at 24-25. The Defendants' duty to warn, asserts Nowell, extends to the "need for corrective or revision surgery to adjust or remove the Product," and treatment with the mesh exposes patients to greater risk than treatment with "feasible available alternatives," including risks attendant to multiple, debilitating surgeries. Amended Complaint ¶ 108, at 25. Nowell asserts that the Defendants' negligence was the direct and proximate cause of her "significant mental and physical pain and suffering" to include "permanent injury, ... medical treatment and ... likely ... further medical treatment and procedures, ... financial or economic loss, ... obligations for medical services and expenses, lost income, and other damages." Amended Complaint ¶ 109, at 25.
Nowell contends that the Defendants are strictly liable for the mesh's alleged design defects, but for which, according to Nowell, she would not have sustained her injuries. See Amended Complaint ¶ 121, at 27. Specifically, Nowell contends that the meshes' "inelasticity," which causes "them to be improperly mated to the delicate and sensitive areas of the abdomen where they are implanted, and causes pain upon normal daily activities that involve movement in the abdomen," and that the mesh has "[b]iomechanical issues ... including, but not limited to, the propensity of the Product to disintegrate inside the body, that in turn cause surrounding tissue to be inflamed, become fibrotic, and contract, resulting in injury." Amended Complaint ¶ 121, at 28. Nowell reasserts the same alleged injuries described in paragraph 109. See Amended Complaint ¶ 122, at 28-29. Nowell adds that the mesh was "inherently defective," because it "was not sturdy enough to prevent disintegration and malformation," which resulted in the mesh "breaking apart while in the Plaintiff's body... in turn caus[ing] ... internal bleeding, infection and other serious injuries." Amended Complaint ¶ 123, at 29.
Nowell asserts that the Defendants are strictly liable for the mesh's alleged manufacturing defects, because the mesh "deviated materially from Defendants' design and manufacturing specifications in such a manner as to pose unreasonable risks of serious bodily harm to the Plaintiff." Amended Complaint ¶ 125, at 29. Nowell alleges that these manufacturing defects were the direct and proximate cause of her injuries. See Amended Complaint ¶ 126, at 29-31.
Nowell contends that the Defendants are strictly liable for not providing Nowell with "appropriate and necessary warnings" regarding the mesh's alleged defects.
Amended Complaint ¶ 129, at 30. Nowell reasserts her arguments from paragraph 106, including that the Defendants had a duty to warn her about the mesh's propensity to disintegrate, fragment, degrade, and improperly "mate[ ] with the abdominal region," and to cause "chronic inflammation," "chronic infections," "scarring," and "recurrent, intractable pain." Amended Complaint ¶ 129, at 30-31. The Defendants' duty to warn, asserts Nowell, extends to the "need for corrective or revision surgery to adjust or remove the Product," and that treatment with the mesh exposes patients to greater risk than treatment with "feasible available alternatives" including risks attendant to multiple, debilitating surgeries. Amended Complaint ¶ 129, at 31. Nowell asserts that the Defendants' failure-to-warn was the direct and proximate cause of her "significant mental and physical pain and suffering" to include "permanent injury, ... medical treatment and ... likely ... further medical treatment and procedures, ... financial or economic loss, ... obligations for medical services and expenses, lost income, and other damages." Amended Complaint ¶ 130, at 31-32.
Nowell asserts that the Defendants are liable for breach of express warranty based on assurances made "to the general public, hospitals and health care professionals that the Product was safe and reasonably fit for its intended purposes." Amended Complaint ¶ 141, at 34. Nowell contends that her physician chose the Defendants' mesh based on such warranties and representations. See Amended Complaint ¶ 142, at 34. The Defendants are liable, according to Nowell, because the mesh "was unreasonably dangerous and defective ... and not as Defendant[s] had represented," Amended Complaint ¶ 144, at 34, which resulted in Nowell's physician implanting the mesh in Nowell's body, see Amended Complaint ¶ 145 at 34, and thereby causing the injuries detailed in paragraph 109 and repeated in paragraph 146, see Amended Complaint ¶ 146, at 34.
Nowell asserts that the Defendants are liable for breach of implied warranty, because the mesh was neither merchantable nor fit for its intended purpose. See Amended Complaint ¶ 155, at 35-36. Nowell asserts that such a breach is evident, because the mesh "disintegrated and mishappened [sic] inside the Plaintiff's body, causing injuries." Amended Complaint ¶ 155, at 35-36. Nowell reasserts her injuries that paragraph 106 describes. See Amended Complaint ¶ 157, at 36. Nowell adds that "someone with knowledge in the trade would reject the mesh for failure to meet the contract description." Amended Complaint ¶ 159, at 36. Accordingly, Nowell requests compensatory, punitive, and special damages, as well as attorney's fees and costs, and any other relief that the Court deem appropriate. See Amended Complaint at 37.
1. The MTD.
The Defendants argue in the MTD that, for two independent reasons, the Court should dismiss the Amended Complaint in its entirety pursuant to rule 12(b)(6) : first, applicable statutes of limitations bar each claim, and, second, the Amended Complaint relies on "labels and conclusions," and "a formulaic recitation of the elements of" each claim without any well-pled facts alleging a specific defect with the Defendants' product and how that defect purportedly caused Nowell's injuries. MTD at 1-2 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). The Defendants note that two other federal courts recently dismissed "similarly deficient" complaints against the Defendants involving injuries allegedly related to Parietex mesh. MTD at 2 (citing Rincon v. Covidien, No. 16-CV-10033, 2017 WL 2242969 (S.D.N.Y. May 22, 2017) (Furman, J.); Black v. Covidien PLC, No. 17-CV-6085-FPG, 2018 WL 573569 (W.D.N.Y. Jan. 26, 2018) (Geraci, C.J.) ). The Defendants add that, because Nowell "has had ample opportunity to plead her claims," the Court should order the case's dismissal "with prejudice." MTD at 2. The Defendants argue that dismissal under rule 12(b)(6) is appropriate when, as in this case, "the 'uncontroverted facts' allege 'dates that appear, in the first instance, to fall outside the statutory limitations period.' " MTD at 6-7 (quoting Anderson Living Tr. v. WPX Energy Prod., LLC, Nos. CIV 12-0039 JB/SCY, 12-0040, 2015 WL 3543011, at *34 (D.N.M. May 26, 2015)(Browning, J.) ). According to the Defendants, New Mexico's Uniform Commercial Code, N.M. Stat. Ann. § 55-2-725 ("UCC"), governs Nowell's breach-of-express and implied-warranty claims, and subjects such claims to a four-year statute of limitations period. See MTD at 7 (citing N.M. Stat. Ann. § 55-2-725(1) ). Nowell's warranty claims are untimely, assert the Defendants, because such claims accrue when a given product is delivered, see MTD at 7 (citing AIG Aviation Ins. v. Avco Corp., 709 F.Supp.2d 1124, 1131-32 (D.N.M. 2010) (Black, J.) ), and here Nowell alleges that her physician used the Defendants' mesh to repair her hernia on October 27, 2010, but did not file her original Complaint until October 5, 2017, which was almost three years after Nowell's putative warranty claim expired, see MTD at 7 (citing Amended Complaint ¶ 38, at 8) ).
Although the Defendants concede that plaintiffs may bring express warranty claims beyond four years from purchase "if the warranty explicitly guarantees 'future performance,' " MTD at 7 (citing N.M. Stat. Ann. § 55-2-725(2) ), the Defendants contend that the Amended Complaint does not identify an express warranty, "let alone quote language that 'explicitly guarantees future performance' beyond four years," MTD at 7 (internal quotation marks omitted)(quoting Willis v. Smith, No. 16 CV 167 JAP/LF, 2016 WL 9281447, at *4 (D.N.M. Dec. 14, 2016) (Parker, J.) ). Nowell, instead, according to the Defendants, merely asserts that the "Defendant made assurances ... that the product was safe and reasonably fit for its intended purposes." MTD at 7 (quoting Amended Complaint ¶ 141, at 34). The Defendants note, in a footnote, that the discovery rule, which tolls a cause of action until "the plaintiff discovers or with reasonable diligence should have discovered that a claim exists," MTD at 7 n.12 (quoting Roberts v. Sw. Cmty. Health Servs., 1992-NMSC-042, ¶ 24, 114 N.M. 248, 837 P.2d 442, 449 ), does not apply to warranty claims, see MTD at 7 n.12 (citing Porcell v. Lincoln Wood Prods., Inc., No. CIV 08-0617 MCA/LFG, 2010 WL 1541264, at *4 (D.N.M. March 31, 2010) (Armijo, J.) ). The Defendants further note that implied warranties, "by their very nature," "do not explicitly guarantee future performance" and thus cannot be tolled pursuant to § 55-2-725(2). MTD at 7-8 (internal quotation marks omitted)(quoting AIG Aviation Ins. v. Avco Corp., 709 F.Supp.2d at 1132 ). Hence, the Defendants conclude, Nowell's breach-of-express and implied-warranty claims are untimely. See MTD at 8.
The Defendants assert that Nowell's negligence and strict-liability claims are likewise untimely, because such claims are subject to a three-year statute of limitations. See MTD at 8 (citing N.M. Stat. Ann. § 37-1-8 ). The Defendants assert that New Mexico follows "the traditional discovery rule," pursuant to which a tort claim accrues at "the time of the injury not the time of the negligent act." MTD at 8 (quoting N.M. Elec. Serv. Co. v. Montanez, 1976-NMSC-028, ¶ 13, 89 N.M. 278, 551 P.2d 634, 637 ). The Defendants assert that the discovery rule, however, does not apply in this case, because, according to the Defendants, the Amended Complaint alleges injuries that occurred more than three years before Nowell filed her original Complaint. See MTD at 8. The Defendants note that "the few facts" in the Amended Complaint include the dates of Nowell's surgeries and alleged injuries. MTD at 8. On April 27, 2010, for example, exactly six months after Nowell alleges that her physician used the Defendants' mesh to repair her hernia, Nowell had a second surgery, because the mesh allegedly "began to pull away from the actual edges." MTD at 8 (quoting Amended Complaint ¶ 38, at 8). Thus, the Defendants argue, Nowell's Amended Complaint pleads that she was aware of a potential problem with the Defendants' mesh seven years before she filed her original Complaint. See MTD at 8. The Defendants add that Nowell, "at some point in the next three years, ... alleges that she began to experience 'symptoms including but not limited to exhaustion and pain in the area of the mesh.' " MTD at 8 (quoting Amended Complaint ¶ 38, at 8). Furthermore, according to the Defendants, Nowell's symptoms were "sufficiently problematic" to compel her to undergo a CT scan on March 1, 2014, which revealed "cysts in the area associated with the mesh." MTD at 8. The Defendants assert that, because these events "are cognizable tort injuries that started the three-year limitations period," MTD at 9 (citing Lent v. Emp't Sec. Comm'n, 1982-NMCA-147, ¶ 27, 99 N.M. 407, 658 P.2d 1134, 1139 ("[K]nowledge of injury, not knowledge of the extent of the injury, is the basis for starting the running of the limitation period.") ), Nowell's negligence and strict liability claims are untimely, see MTD at 9 (citing Bassham v. Owens-Corning Fiber Glass Corp., 327 F.Supp. 1007, 1009 (D.N.M. 1971) (Payne, C.J.)("[A]ny exposure which occurred more than three years before the filing of the action, would be barred by the statute of limitations.") ).
The Defendants insist that tolling, "[t]he only basis for excusing this late filing," is unavailable to Nowell, because her Amended Complaint does not allege "reasonable diligence" sufficient "to 'establish[ ] a factual basis for tolling' pursuant to the discovery rule." MTD at 9 (alteration in MTD)(quoting Andrew v. Schlumberger Tech. Corp., 808 F.Supp.2d 1288, 1292 (D.N.M. 2011) (Browning, J.) ). According to the Defendants, the discovery rule's applicability turns on whether Nowell "lacked knowledge of her cause of action and could not have discovered it by exercising reasonable diligence during the statutory period." MTD at 9 (quoting Blea v. Fields, 2005-NMSC-029, ¶ 28, 138 N.M. 348, 120 P.3d 430, 440 ). The Defendants contend that, once Nowell began to experience pain and discomfort following the April 27, 2010, surgery, either she knew that the Defendants' mesh caused those injuries, or she had a "duty to inquire into" the cause. MTD at 9 (quoting Butler v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-084, ¶ 34, 140 N.M. 111, 140 P.3d 532, 540 ("[T]he awareness of an injury creates a duty to inquire into its causes.") ). The Defendants argues that the Amended Complaint is devoid, however, of allegations that, had Nowell "diligently investigated the problem[,] she would have been unable to discover the cause of her injury." MTD at 9 (quoting Martinez v. Showa Denko, K.K., 1998-NMCA-111, ¶ 22, 125 N.M. 615, 964 P.2d 176, 180 ). Instead, the Defendants insist, the "sole allegation" offered in support of tolling is that Nowell waited over four years for her physician "to allegedly inform her that 'there was a problem with the mesh and that it had to be removed.' " MTD at 9-10 (quoting Amended Complaint ¶ 38, at 8). The Defendants contend that Nowell's reliance on her physician's conclusion cannot support a reasonable-diligence finding, particularly in light of Nowell's factual assertions about her April, 2010, surgery and the "pain in the area of the mesh." MTD at 10 (internal quotation marks omitted)(quoting Amended Complaint ¶ 38, at 8). Hence, the Defendants conclude, Nowell's failure to allege "reasonable diligence" precludes the discovery rule's application, and warrants dismissal of Nowell's negligence and strict liability claims. MTD at 10.
The Defendants next turn to their argument that Nowell's claims do not satisfy the pleading standard that Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), require, because, according to the Defendants, the Amended Complaint pleads mere " 'labels and conclusions' instead of facts that raise a 'plausible' claim of relief." MTD at 10 (citing Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) ). The Defendants assert that, although Nowell's six claims allege that the Defendants' mesh was defectively designed, labeled, and marketed, the Amended Complaint lacks "well-pleaded factual allegations pertaining to: (1) the nature of the alleged defect; (2) how the alleged defect caused Plaintiff's injury; and (3) the information that Plaintiff believes should have been included in the product labeling and warranty." MTD at 10.
Beginning with Nowell's negligence claim, the Defendants contend that, assuming they owed Nowell a duty, the Amended Complaint does not plead facts that allege a breach of that duty or proximate causation as New Mexico law requires to support such claims. See MTD at 10 (citing Bellman v. NXP Semiconductors USA, Inc., 248 F.Supp.3d 1081, 1122 (D.N.M. 2017) (Browning, J.) ). The Defendants insist that Nowell's negligence claim overlaps significantly with her strict liability cause of actions and that, although negligence and strict liability are frequently asserted together, negligence is the more demanding test, and Nowell has not alleged negligence adequately. See MTD at 11 (citing Trujillo v. Berry, 1987-NMCA-072, ¶ 5, 106 N.M. 86, 738 P.2d 1331, 1333 ("The purpose behind the strict products liability doctrine is to allow an injured user or consumer to recover ... without the requirement of proving negligence.") ). Specifically, the Defendants contend that Nowell has not pled any plausible facts which show how the Defendants breached their duty of care or show specific acts or omissions which fall below the "ordinary care" that "a reasonably prudent supplier would use ... in formulating, designing, making, inspecting, testing, and packaging the product." MTD at 11 (internal quotation marks omitted)(quoting Mims v. Davol, Inc., No. CIV 16 0136-MCA-GBW, 2017 WL 3405559, at *4 (D.N.M. March 22, 2017) (Armijo, J.) ). Instead, the Defendants assert, Nowell "simply recites the cause of action," MTD at 11 (citing Amended Complaint ¶ 105, at 22), and asks the Court to infer a breach of duty from the fact that she allegedly suffered injuries, which, according to the Defendants, is a "post hoc ergo prompter hoc logical fallacy" insufficient to maintain a negligence claim, MTD at 11-12 (citing Pac. Indem. Co. v. Therm-O-Disc, Inc., 476 F.Supp.2d 1216, 1231 (D.N.M. 2006) (Hansen, J.)("The mere fact that the contacts on the Therm-O-Disc control fused is not enough to demonstrate that Therm-O-Disc violated its duty to use ordinary care.") ).
Turning to Nowell's three strict liability claims -- design defect, manufacturing defect, and warning defect -- the Defendants assert that the Amended Complaint does not allege any specific defects that made the Defendants' mesh "unreasonably dangerous" and that caused Nowell's injuries. MTD at 12 (internal quotation marks omitted)(quoting Pac. Indem. Co. v. Therm-O-Disc, Inc., 476 F.Supp.2d at 1228-29 ). Moreover, Nowell's design defect claim, according to the Defendants, requires Nowell to allege further that "a feasible design existed which lacked the alleged design defect and would have prevented her injuries." MTD at 12 (citing Morales v. E.D. Etnyre & Co., 382 F.Supp.2d at 1283 ("Thus, to the extent that a plaintiff could come to court and merely criticize a product, the Court believes that the New Mexico law required the plaintiff to propose an alternative design.") ). The Defendants assert that, instead of alleging a specific design feature that rendered the Defendants' mesh defective, the Amended Complaint
relies on a generalized list of alleged flaws that include: the mesh's material caused an "immune reaction"; the mesh was designed "to be inserted into and through an area of the body with high levels of bacteria that adhere to the mesh"; "[b]iomechanical issues ... including, but not limited to, the propensity of the Product to disintegrate"; and the mesh's "inelasticity."
MTD at 12-13 (quoting Amended Complaint ¶ 121, at 27-28). Such "vague and conclusory allegations," according to the Defendants, "could apply to all mesh products generally," and thus cannot support a plausible claim for relief against the Defendants and their particular mesh. MTD at 13. The Defendants ask, rhetorically: "What is the alleged immune reaction? What 'inelasticity' is supposedly present?" and assert that Nowell's failure to plead a specific defect "and/or to conclude that each and every hernia mesh on the market is defective" cannot satisfy the requisite pleading standard. MTD at 13.
The Defendants maintain that the Southern and Western Districts of New York recently dismissed claims based on similar allegations about the Defendants' Parietex Composite mesh, because, although the plaintiffs in both cases cite the mesh's design aspects, for example, " 'the hydrophilic coating' and 'small pores and collagen,' " they do not specifically allege how the design aspects were defective or how the purported defects caused the plaintiffs' specific injuries. MTD at 13 (quoting Rincon v. Covidien, No. 16-CV-10033, 2017 WL 2242969, at *2 ; Black v. Covidien, PLC, No. 17-CV-6085-FPG, 2018 WL 573569, at *2 ). The Defendants insist that, because the same problems are true of Nowell's claims here, the Court should dismiss her design defect claim. See MTD at 13 (citing Armijo v. Ex Cam, Inc., 656 F.Supp. 771, 773 (D.N.M. 1987) (Burciaga, J.)("Plaintiff's argument for strict liability fails on the first of these elements, that the product must be 'defective.' "), aff'd, 843 F.2d 406 (10th Cir. 1988) ).
Regarding the alleged alternative-design pleading requirement, the Defendants assert that the Amended Complaint merely alleges alternative surgical techniques to the use of hernia mesh but not alternative designs to the Defendants' mesh. See MTD at 14. Moreover, according to the Defendants, Nowell "seems to concede that a safer hernia mesh design is not possible," because, although Nowell states that "[s]afer and more effective alternatives to hernia mesh exist," she does not identify any such alternatives and instead refers to the "Shouldice Repair, McVay Repair, Bassini Repair, and Desarda Repair" as alternatives, which the Defendants insist are surgical procedures that do not involve surgical mesh. MTD at 14 (quoting Amended Complaint ¶ 26, at 6). The Defendants insist that "a safer alternative design cannot be ... the decision not to use a product at all." MTD at 14 (citing S.F. v. Archer Daniels Midland Co., 594 F. App'x 11, 12-13 (2d Cir. 2014) ). The plaintiff in S.F. v. Archer Daniels Midland Co., according to the Defendants, alleged strict liability and negligence claims against a manufacturer stemming from its sale of and the plaintiff's consumption of high fructose corn syrup, but the plaintiff did not allege a safer alternative design for that product, instead suggesting that "[it] should not be used at all." MTD at 14 (quoting S.F. v. Archer Daniels Midland Co., 594 F. App'x at 12 ). In affirming the district court's dismissal of the plaintiff's claims, the United States Court of Appeals for the Second Circuit explained: "A design-defect claim will not stand if the only alternative is an outright ban." MTD at 14 (quoting S.F. v. Archer Daniels Midland Co., 594 F. App'x at 12 ). The Defendants contend that, like the plaintiff's insufficient allegations in S.F. v. Archer Daniels Midland Co., Nowell's failure to allege a feasible design alternative is a further basis on which the Court should dismiss her design defect claim. See MTD at 14-15 (citing Reed v. Pfizer, Inc., 839 F.Supp.2d 571, 578 (E.D.N.Y. 2012) (Vitaliano, J.) ).
The Defendants dispute that the three scientific articles which Nowell cites in her Amended Complaint support her design defect claim or provide any support for her assertion "that the type of material that was used in Parietex mesh caused infection and disintegration which resulted in pain, exhaustion, and other injuries," or "that the type of surgical mesh as Parietex causes similar injuries as those sustained by [Nowell]." MTD at 15 (quoting Amended Complaint ¶ 39, at 9-10). The articles instead, according to the Defendants, merely highlight the underlying risks common to all hernia repair surgeries, risks that the Defendants contend are well-known in the medical community. See MTD at 15. In a footnote, the Defendants add that the first article -- "Central Failures of Monofilament Polyester Mesh Causing Hernia Recurrence: A Cautionary Note" -- examines "Parietex TCM," and its potential for tearing, which, the Defendants contend, is not causally connected to Nowell's main injury, that is, infection. MTD at 15 n.14 (citing C.C. Petro et. al., Central Failures of Lightweight Monofilament Polyester Mesh Causing Hernia Recurrence: A Cautionary Note, 19 Hernia 155 (2015) ). Moreover, according to the Defendants, the second article -- "Postoperative Mesh Infection -- Still a Concern in Laparoscopic Era" -- summarizes published findings and mentions the Defendants' Parietex mesh only once; it says nothing about Parietex Composite. MTD at 15 n.14 (citing Rajvilas Narkhede et. al., Postoperative Mesh Infection -- Still a Concern in Laparoscopic Era, 77 Indian J. Surg. 322 (2015) ). Finally, the Defendants aver, although the third article -- "Novel in Vitro Model for Assessing Susceptibility of Synthetic Hernia Repair Meshes to Staphylococcus aureus Infection" -- studies "Parietex Composite," it does not suggest a potential defect in the Defendants' mesh that could be causally linked to Nowell's injuries. See MTD at 15 n.14 (citing Ihab F. Halaweish et. al., Novel in Vitro Model for Assessing Susceptibility of Synthetic Hernia Repair Meshes to Staphylococcus aureus Infection Using Green Fluorescent Protein-labeled Bacteria and Modern Imaging Techniques, 11 Surgical Infections 449 (2010) ). None of the articles, argue the Defendants, demonstrate or even suggest that the Defendants' Parietex Composite Mesh caused Nowell's injury or provide any factual support for Nowell's assertion that "[t]his article arguably proves that Parietex mesh causes harmful bacterial infections." MTD at 15 (citing Amended Complaint ¶ 39, at 10).
Turning to Nowell's manufacturing defect claim, the Defendants assert that New Mexico law requires Nowell to prove that the Defendants' mesh came " 'off the assembly line with a manufacturing defect' that caused it to 'depart[ ] from its intended design,' " MTD at 15-16 (alteration in MTD)(quoting Parker v. St. Vincent Hosp., 1996-NMCA-070, ¶ 14, 122 N.M. 39, 919 P.2d 1104, 1108 ), and thus, in contrast to a design defect claim, Nowell must allege and prove that a deviation from the intended design -- as opposed to a defect in the design itself -- caused her injuries, see MTD at 16. The Defendants maintain that Nowell's assertion, that the mesh "deviated materially from the Defendants' design and manufacturing specifications," MTD at 16 (quoting Amended Complaint ¶ 125, at 29), is merely a " 'formulaic recitation of the elements of [the] cause of action' without any corresponding factual support," MTD at 16 (alteration in MTD)(quoting Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ). The Defendants urge the Court to dismiss Nowell's manufacturing defect claim, because the Amended Complaint does not identify a specific defect imparted during the manufacturing process that caused the mesh implanted in Nowell "to depart from its FDA-cleared design and performance standards, or from other Parietex mesh products manufactured by Defendants." MTD at 16.
Nowell's third strict liability claim, her failure-to-warn claim, according to the Defendants, requires her to prove not only that "(1) no warning was provided or the warning was inadequate; and (2) the inadequacy or absence of the warning caused the plaintiff's injury," MTD at 16 (quoting Silva v. Smithkline Beecham Corp., No. 31276, 2013 WL 4516160, at *3 (N.M. Ct. App. Feb. 7, 2013) ), but also, pursuant to the learned-intermediary doctrine, that a proper warning would have altered her physician's decision to use the Defendants' mesh, see MTD at 16-17 (citing Silva v. Smithkline Beecham Corp., No. 31276, 2013 WL 4516160, at *3 ). In a footnote, the Defendants note that the Court previously declined to apply the learned-intermediary doctrine to a failure-to-warn claim, see MTD at 17 n.15 (citing Rimbert v. Eli Lilly & Co., 577 F.Supp.2d 1174, 1226 (D.N.M. 2008) (Browning, J.) ), but suggest that, because the Court of Appeals of New Mexico has since applied the learned-intermediary doctrine to such a claim, and because the Supreme Court of New Mexico has not decided the issue, the intermediate court's decision may "prove helpful" in predicting how the state supreme court would decide the issue, MTD at 17 n.15 (quoting Am. Fire & Cas. Co. v. BCORP Canterbury at Riverwalk, LLC, 282 F. App'x 643, 648 (10th Cir. 2008) ). The Defendants insist that the Amended Complaint does not allege facts pertaining to these elements; for example, instead of alleging specific statements, so that the Court could evaluate the statements' sufficiency, Nowell asserts a list of warnings that, in her opinion, the Defendants should have provided. See MTD at 17 (citing Amended Complaint ¶ 129, at 30-31). This list, according to Defendants, "could apply to any number of medical products," MTD at 17; it does not describe "a specific risk of harm" attendant to a defect known to the Defendants, MTD at 17 (quoting Golden v. Brown, No. 17CV30568, 2017 WL 3272368, at *5 (Colo. Dist. Ct. June 27, 2017) ). Moreover, the Defendants assert, Nowell has alleged merely that the "Defendants did not adequately warn the Plaintiff," MTD at 17 (quoting Amended Complaint ¶ 129, at 30), and not that a proper warning would have altered her physician's decision to use the Defendants' mesh and thereby prevented her injuries, see MTD at 17-18 (citing Silva v. Smithkline Beecham Corp., No. 31276, 2013 WL 4516160, at *3 ("Plaintiffs must show that adequate warnings would have altered Dr. Lopez-Colberg's decision to treat Patient with Paxil or its generic equivalent.") ). The Defendants add that the Amended Complaint does not include "[a]ny allegation that Plaintiff's physicians were not aware of the purported 'dangerous condition' and, more essentially, would not have utilized Defendants' product had they been adequately warned." MTD at 18 (citing Tapia v. Davol, Inc., 116 F.Supp.3d 1149, 1158-59 (S.D. Cal. 2015) (Curiel, J.)("Plaintiff has failed to allege that Defendants failed to warn his prescribing physician and failed to allege that if his prescribing physician had been warned, then he would not have prescribed the [Defendants' hernia repair patch] to Plaintiff.") ). Furthermore, the Defendants contend, the pain-and-infection risks associated with hernia repair surgery, regardless whether mesh is used, "were well known in the medical community at the time of Plaintiff's surgery," MTD at 18, as the FDA's inclusion of "pain , infection , hernia recurrence, [and] scar-like tissue" in its list of inherent hernia surgery risks confirms. MTD at 18 (emphasis in MTD)(internal quotation marks omitted)(quoting HerniaSurgical Mesh Implants, FDA, https://www.fda.gov/MedicalDevices/ProductsandMedicalProcedures/ImplantsandProsthetics/HerniaSurgicalMesh/default.htm (last visited Feb. 4, 2018) ). The Defendants add that the scientific articles cited in the Amended Complaint discuss the general infection risks associated with all hernia surgery repair, which further evidences the medical community's general awareness of such risks. MTD at 18.
Regarding Nowell's breach-of-express-warranty claim, the Defendants argue that New Mexico's UCC requires Nowell to prove that the Defendants' "(1) 'made an[ ] express affirmation or representation ... regarding' the product; (2) the product deviated from the express warranty; and (3) that deviation caused plaintiff's injuries," and contend that Nowell's Amended Complaint neither alleges facts pertaining to these three elements nor identifies a specific warranty that is purportedly deficient, MTD at 17-18 (alteration in MTD)(quoting Bellman v. NXP Semiconductors USA, Inc., 248 F.Supp.3d at 1153 ). Nowell's only allegations, according to the Defendants, are boilerplate recitations of the cause of action, such as "Defendant expressly warranted [the mesh] to be safe and effective for consumers like Plaintiff," MTD at 19 (internal quotation marks omitted)(quoting Amended Complaint ¶ 147, at 34-35), which courts "routinely dismiss" as insufficiently pled, MTD at 19 (citing Bellman v. NXP Semiconductors USA, Inc., 248 F.Supp.3d at 1153 ("Indeed, aside from perfunctorily alleging in the Complaint that Rinchem Co. 'expressly' warranted the chemicals that it supplied ... Plaintiffs never explain the manner in which Rinchem Co. made such a warranty or identify the warranty's precise terms."); Hammonds v. Bos. Sci., Inc., No. CIV-11-0663-HE, 2011 WL 4978369, at *2 (W.D. Okla. Oct. 19, 2011) (Heaton, J.)("[H]er amended complaint still fails to identify what warranties and misrepresentations were made.") ). Without alleging a specific warranty's contents, the Defendants contend, neither the Defendants nor the Court can evaluate its sufficiency. See MTD at 19 (citing Bellman v. NXP Semiconductors USA, Inc., 248 F.Supp.3d at 1153 ("[T]he Court cannot conclude ... that [the defendant] made any express warranty, nor can it conclude, absent knowledge of the alleged warranty's terms, whether [defendant] breached those terms.") ). The Defendants add that the Honorable Christina Armijo, United States District Judge for the District of New Mexico, "dismissed a nearly identical breach of express warranty claim" in Mims v. Davol, Inc., MTD at 19 (citing Mims v. Davol, Inc., 2017 WL 3405559, at *6 ), and thus the Court should likewise dismiss Nowell's breach-of-express-warranty claim against the Defendants.
Considering Nowell's breach-of-implied-warranty claim, the Defendants assert that the Amended Complaint neither alleges a claim for breach of implied warranty of fitness for a particular purpose nor facts pertaining to each element of Nowell's implied-warranty-of-merchantability claim, which are the only claims for breaches of implied warranties that New Mexico's UCC permits. See MTD at 20 (citing N.M. Stat. Ann. §§ 55-2-314 to -315). The Defendants note that the Amended Complaint does not mention the phrase "particular purpose" but instead alleges that the Defendants' mesh was not "merchantable," which the Defendants contend is a distinct and independent implied warranty. MTD at 20 (citing Amended Complaint ¶¶ 152, at 35; 154, at 35; 155, at 35-36; 159, at 36; 162, at 36-37) ). The Defendants add, in a footnote, that, although the Amended Complaint also alleges that the mesh was not "fit for the ordinary purposes for which" it was sold, MTD at 20 n.17 (quoting Amended Complaint ¶ 152, at 35), that this phrase is included in the statutory definition of "merchantable," MTD at 20 n.17 (citing N.M. Stat. Ann. § 55-2-314(2)(c) ("Goods to be merchantable must be at least such as ... are fit for the ordinary purposes for which such goods are used.") ).
The Defendants contend that, to maintain a claim for breach of the implied warranty of merchantability, Nowell must prove that "the seller sold goods or products that fail to meet the statutory definition of merchantable," MTD at 20 (internal quotation marks omitted)(quoting Bellman v. NXP Semiconductors USA, Inc., 248 F.Supp.3d at 1126 ), which "resembles ordinary products liability claims" in that the claimant must provide "proof of a defect," Bellman v. NXP Semiconductors USA, Inc., 248 F.Supp.3d at 1155 (internal quotation marks omitted)(quoting Pac. Indem. Co. v. Therm-O-Disc, Inc., 476 F.Supp.2d at 1225 ). Hence, the Defendants conclude, the Court should dismiss Nowell's claim for breach of the implied warranty of merchantability for the same reasons as the Court should dismiss her strict-liability and negligence claims -- the Amended Complaint does not sufficiently allege a defect that renders the Defendants' mesh "unreasonably dangerous" and caused her injuries. MTD at 20-21 (internal quotation marks omitted)(quoting Perfetti v. McGhan Med., 1983-NMCA-032, ¶ 45, 99 N.M. 645, 662 P.2d 646, 654 ("In this case the identical defect is relied on for both products liability and breach of the implied warranty of merchantability.") ).
The Defendants insist that, as with Nowell's substantive causes of action, the Court should deny her request for punitive damages, because the Amended Complaint does not allege the requisite corresponding factual allegations to support a finding of the requisite scienter for punitive damages. See MTD at 21. Instead, according to the Defendants, the Amended Complaint "simply recites the standard for punitive damages," MTD at 21 (citing Amended Complaint ¶ 102, at 22 ("Defendant's conduct as described herein shows willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which raises the presumption of conscious indifference to consequences, thereby justifying an award of punitive damages.") ), which is the kind of "unadorned, the-defendant-unlawfully-harmed-me accusation" that Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal foreclose, MTD at 21 (internal quotation marks omitted)(internal quotation marks omitted)(quoting Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ).
2. The MTD Response.
Nowell responds to the Defendants' MTD. See Plaintiff's Response to Defendants Motion to Dismiss, filed April 16, 2018 (Doc. 30)("MTD Response"). Nowell argues that the Court either should deny the MTD or should treat the MTD as a motion for summary judgment pursuant to rule 12(d). See MTD Response at 2. Nowell begins by summarizing the pleading standard that the Supreme Court describes in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, see MTD Response at 2 (citing Ashcroft v. Iqbal, 556 U.S. at 675, 129 S.Ct. 1937 ; Bell Atlantic Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ), and notes that this standard does not require complaints to include "all the factual allegations necessary to sustain a conclusion that defendant violated clearly established law," MTD Response at 2-3 (quoting Breidenbach v. Bolish, 126 F.3d 1288, 1293 (10th Cir. 1997) ). Nowell insists that, in Currier v. Doran, 242 F.3d 905 (10th Cir. 2001), the United States Court of Appeals for the Tenth Circuit concluded that the Supreme Court "superseded" such a requirement with its decision in Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998), MTD Response at 3 (citing Currier v. Doran, 242 F.3d at 916 ), and that Bell Atlantic Corp. v. Twombly articulates merely a "minimal standard of notice pleading." MTD Response at 3. Nowell adds, in a footnote, that this "general or 'notice' pleading, rather than detailed pleading" compels courts to construe liberally a plaintiff's allegations. MTD Response at 3 (citing Johnson v. City of Shelby, 574 U.S. 10, 135 S.Ct. 346, 347, 190 L.Ed.2d 309 (2014) ).
Nowell next asserts that the Amended Complaint contains "good faith" causes of action "supported by a) Ms. Nowell's surgeon; b) the scientific literature; and c) common sense." MTD Response at 3 (footnotes omitted)(citing Amended Complaint ¶ 38-39, at 8-11). Nowell contends that her allegations sufficiently notify the Defendants that scientific arguments support her liability theories. See MTD Response at 3. According to Nowell, such arguments include that the mesh material "was hazardous due to its incompatibility with human tissue" and "was dangerous because it was unreasonably susceptible to mechanical failure." MTD Response at 3. Nowell argues that "the hazardous materials" used to manufacture the Defendants' mesh caused the mesh's disintegration and Nowell's infection. MTD Response at 3-4. Nowell adds that she will develop her "scientific arguments" after discovery and expert witness evaluation. MTD Response at 4. Nowell has not retained an expert witness to develop her scientific arguments, she asserts, because the Amended Complaint provides adequate notice of her claims' plausibility. See MTD Response at 4. Nowell adds that the Defendants will have an opportunity to refute her "scientific claims," but that "such arguments are largely premature at this stage because the factual evidence has not been developed through discovery." MTD Response at 4.
Nowell asserts that New Mexico products liability law recognizes "claims sounding in common law negligence and in strict liability," and that the Amended Complaint includes claims that arise under these theories. MTD Response at 5 (citing Parker v. St. Vincent Hosp., 1996-NMCA-070, ¶ 14, 122 N.M. 39, 919 P.2d at 1108 ). She then recites a negligence claim's elements and asserts that she established the first element, "the existence of a duty owed to the Plaintiff," in paragraphs 11, 12, and 27; the second element, "a breach of that duty," in paragraphs 36, 38, and 41-45; the third element, "a causal connection between the Defendants' conduct and her injuries" in paragraphs 22, 23, 36, 38-40, 46, and 49-51; and the fourth element, "damages" resulting from the Defendants' conduct, in paragraphs 69, 85, 102, 109, 118-19, 122, 126, 130, 138, 146, 157, 162, and in the requested relief on page thirty-seven. MTD Response at 5-6 (citing Parker v. E.I. DuPont de Nemours & Co., 1995-NMCA-086, ¶ 35, 121 N.M. 120, 909 P.2d 1, 11 ).
According to Nowell, the Amended Complaint alleges in paragraph 86 that the condition of the Defendants' mesh resulted in "an unreasonable risk of injury." MTD Response at 6 (internal quotation marks omitted)(quoting Smith ex rel. Smith v. Bryco Arms, 2001-NMCA-090, ¶ 13, 131 N.M. 87, 33 P.3d 638, 644 ). Nowell maintains that, in paragraphs 11, 12, and 27, the Amended Complaint establishes the Defendants as the mesh's manufacturer and distributor, and, in paragraphs 42, 68, 52(b), 71 73, 83, 86(2), 86(3), 87, 95, 104, 105, 106, 111, 116, 121, 123, 125, 127, and 131, that the Defendants neither designed nor manufactured the mesh with "ordinary care." MTD Response at 6.
Nowell asserts that she "placed the Defendants on notice of her general strict liability claims," because her Amended Complaint alleges:
(1) the product was defective (See , Amended Complaint ¶¶ 38, 41, 42, 47, 50, 52), (2) the product was defective when it left Defendants' hands (See , ¶ 60), and it was substantially unchanged when it reached the consumer (See , ¶ 60); (3) that because of the defect the product was unreasonably dangerous to the consumer (See , ¶ 86); (4) that the consumer was injured or damaged (See , ¶¶ 38, 40); and (5) the defective product was the proximate cause of the injury or damage (See , ¶¶ 22, 23, 39, 47, 49, 50, 51).
MTD Response at 7 (citing Garner v. Raven Indus., Inc., 732 F.2d 112, 114 (10th Cir. 1984) ).
Nowell avers that "[a]n unreasonable risk of injury is a risk a reasonably prudent person having full knowledge of the risk would find unacceptable," MTD Response at 7 (internal quotation marks omitted)(quoting Smith ex rel. Smith v. Bryco Arms, 2001-NMCA-090, ¶ 13, 131 N.M. 87, 33 P.3d at 644 ), and that the test for such risk "allows for proof and argument under any rational theory of defect," MTD Response at 7 (quoting Smith ex rel. Smith v. Bryco Arms, 2001-NMCA-090, ¶ 14, 131 N.M. 87, 33 P.3d at 644 ), of which New Mexico recognizes three: manufacture, design, and failure-to-warn, see MTD Response at 7 (citing Fernandez v. Ford Motor Co., 1994-NMCA-063, ¶ 26, 118 N.M. 100, 879 P.2d 101, 110 ). According to Nowell, the Amended Complaint sufficiently alleges her strict-liability claims and any deficiency "results not from the fault of Ms. Nowell, but from her inability to gather information from the Defendants at this pre-discovery stage." MTD Response at 7-8.
Nowell quotes from New Mexico's Civil Uniform Jury Instructions ("Civ. UJI") to support her assertion that she may prove causation so long as the defective product contributes to the injury; "[i]t need not be the only explanation ... nor the reason that is nearest in time or place." MTD Response at 8 (quoting Civ. UJI 13-1424 ). Moreover, Nowell avers, she may prove causation for her failure-to-warn claim by showing that "an adequate warning would have been noticed and acted upon to guard against the danger." MTD Response at 8 (quoting Civ. UJI 13-1425 ).
According to Nowell, the Amended Complaint alleges causation specifically in paragraph 38, wherein she states that the "Plaintiff underwent surgery during which the surgeon, Dr. William Pollard, removed an infected and disintegrated Parietex mesh in Plaintiff's abdomen." MTD Response at 8 (citing Amended Complaint ¶ 38, at 8). Nowell adds that paragraph 38 alleges that she "experienced pain in the area of the mesh and exhaustion," and that the mesh "also caused Plaintiff to undergo multiple surgical interventions." MTD Response at 8 (citing Amended Complaint ¶ 38, at 8). Moreover, adds Nowell, paragraph 46 alleges that the mesh "was made from material that is both biologically incompatible with human tissue and susceptible to mechanical failure," which, "when implanted in the human body, ... promotes (and in Ms. Nowell['s] case it promoted) infection and disintegration." MTD Response at 8-9 (citing Amended Complaint ¶ 46, at 12). Nowell insists that paragraph 38 contains "scientific references" which show that "non-biologically compatible Paritex mesh" causes the type of injuries that Nowell suffered, i.e., "disintegration and infection." MTD Response at 9 (citing Amended Complaint ¶ 38, at 8).
Regarding her failure-to-warn claim, Nowell maintains that the allegations in the Amended Complaint are sufficient, because paragraph 67 states that the " 'Defendants failed to provide sufficient warnings' ... to put Ms. Nowell 'on notice of the dangers and adverse effects caused by implantation of the Product' " and because paragraph 70 states that the Defendants marked the mesh "as safe" and as "free from the kinds of risks and hazards that the [Product] actually posed." MTD Response at 9 (alteration in MTD Response)(citing Amended Complaint ¶ 70, at 17). Further support for this claim, according to Nowell, is seen in paragraph 139, which states that "[b]ut for the Defendants' failure-to-warn, the Plaintiff would not have sustained [the alleged] injuries," MTD Response at 9 (citing Amended Complaint ¶ 139, at 33), paragraph 138, which states that Nowell's injuries "would not have occurred if adequate warning and instruction had been provided," MTD Response at 9 (citing Amended Complaint ¶ 138, at 33), and paragraph 129, which states that the Defendants' "failure to warn caused ... Plaintiff not to be aware of the defects [that] cause her injury," MTD Response at 9 (alteration in MTD Response)(citing Amended Complaint ¶ 129, at 30) ). According to Nowell, these allegations are sufficient for a reasonable jury to find that, had the Defendants warned Nowell of the mesh's "actual risks," "she would have declined to have it surgically implanted in her body." MTD Response at 9.
Nowell concedes that she has not obtained information regarding the mesh's "exact manufacturing process and specific warranty language," but insists that this information is within the Defendants' "exclusive control." MTD Response at 9. Hence, Nowell requests the Court's permission to amend further the Amended Complaint "once this information becomes available through the discovery process." MTD Response at 10.
Nowell next responds to the Defendants' averment that "significant overlap" exists between Nowell's negligence and strict-liability claims, and asserts that "this overlap results from the similarity of elements between the two causes of action." MTD Response at 10 (citing MTD at 11). Nowell argues that the "breach" and "defect" elements in a strict liability claim, and in a negligence claim, respectively, are "closely related," because both elements "require an unreasonable departure from ordinary care." MTD Response at 10. Nowell adds that "causation" is another element that strict liability and negligence claims share, because "products liability law evolved from negligence law." MTD Response at 10 (citing MacPherson v. Buick Motor Co., 217 N.Y. 382, 382, 111 N.E. 1050 (N.Y. 1916) (Cardozo, J.) ). Nowell suggests that the Court should focus on whether the Amended Complaint adequately places the Defendants on notice of her claims and not whether such claims overlap. See MTD Response at 10.
Nowell disputes the Defendants' contention that she engaged in a "post hoc ergo prompter hoc logical fallacy," because her causation theories are "based on scientific research." MTD Response at 10-11 (citing MTD at 11). Nowell further disputes the Defendants' contention that she "seems to concede that a safer hernia mesh design is not possible," because the Amended Complaint alleges that the Defendants should have made their mesh from "biologically compatible" material that "was not susceptible to mechanical failure" and that "it is allegedly possible to manufacture a product with these attributes." MTD Response at 11 (citing MTD at 14). Nowell asserts that her punitive damages request is not an allegation that the Court can dismiss for failure to state a claim upon which relief can be granted, because, according to Nowell, the Tenth Circuit has concluded that a punitive damages claim is "part and parcel of a liability determination," and "does not have any independent being until a jury has decided, based on the preponderance of the evidence, that not only was a defendant's conduct negligent, but that it was gross, willful, wanton or malicious." MTD Response at 11 (internal quotation marks omitted)(quoting Mason v. Texaco, Inc., 948 F.2d 1546, 1554 (10th Cir. 1991) ). Moreover, Nowell argues that the Amended Complaint alleges, in paragraphs 85, 91, 98, 102, 114, 119, 139, and 162, conduct that qualifies for punitive damages. MTD Response at 12.
Nowell next disputes the Defendants' allegations that she did not bring her claims within the applicable statutes of limitations, because, according to Nowell, the discovery rule tolls the limitations period and she did not discover that the Defendants' mesh was causing her injury until October 8, 2014, when Dr. Pollard advised her "for the first time that there was a problem with the mesh and that it had to be removed." MTD Response at 12-13 (citing Williams v. Stewart, 2005-NMCA-061, ¶ 10, 137 N.M. 420, 112 P.3d 281, 285 ). Nowell asserts that Martinez v. Showa Denko, K.K., 1998-NMCA-111, 125 N.M. 615, 964 P.2d 176, wherein the Court of Appeals of New Mexico stated that, under the discovery rule, the statute of limitations is triggered when the plaintiff "acquires knowledge of facts, conditions, or circumstances which would cause a reasonable person to make an inquiry leading to the discovery of the concealed cause of action," further supports her position. MTD Response at 13 (internal quotation marks omitted)(quoting Martinez v. Showa Denko, K.K., 1998-NMCA-111, ¶ 24, 125 N.M. 615, 964 P.2d at 182 ). Nowell adds that the October 6, 2014, CT scan, attached to the MTD Response as Exhibit B, and which Dr. Pollard memorialized in his clinic notes, attached to the MTD Response as Exhibit A, informed Dr. Pollard's decision to remove the mesh. See MTD Response at 13.
Nowell concedes that she was skeptical about the mesh's safety before October 8, 2014, but relied on Dr. Pollard's opinion that the mesh was not her symptoms' source. See MTD Response at 14. Hence, Nowell argues that it would have been unreasonable for her to assume that the mesh was the cause of her symptoms until October 8, 2014, which, according to Nowell, the Amended Complaint alleges in paragraph 38. See