United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
Defendants Philips Respironics, Inc. and Philips Electronics North America Corporation (hereinafter "the Philips Defendants") move to dismiss this action for lack of subject-matter jurisdiction, arguing that Plaintiff Patricia Fenn's (hereinafter "Fenn") state tort claims do not present a federal question simply because they incorporate alleged violations of the Food, Drug, and Cosmetic Act ("FDCA"), as modified by the Medical Device Amendments of 1976 ("MDA"). The Philips Defendants also contend that dismissal is appropriate because Fenn did not properly serve them or file suit within the applicable statute of limitations. Defendants Rotech Healthcare and Rothert's Hospital Equipment, Inc. (hereinafter "the Rotech Defendants") also filed a Joint Motion, adopting and incorporating by reference all arguments raised by the Philips Defendants (Doc. # 15).
I. Factual and Procedural Background
Patricia Fenn is a 71 year old woman who suffers from asthma, chronic obstructive pulmonary disease ("COPD"), diabetes mellitus, morbid obesity and sleep apnea. (Doc. # 1, p. 5, ¶ 12). These medical conditions made it difficult for Fenn to breathe while asleep, so she began using a Continuous Positive Airway Pressure ("CPAP") device at night. (Id. at p.3, ¶ 1). Fenn's CPAP machine, the REMStar Auto with A-Flex Sleep Therapy System, was manufactured by the Philips Defendants. (Id. ). The Rotech Defendants, who provide home healthcare equipment and services, distributed the device to Fenn. (Id. ).
On May 10, 2013, Fenn fell asleep while using the CPAP device, only to awake later that night with a bad taste in her mouth. (Id. at p. 7, ¶ 19). The machine was emitting a bad odor, like something burning, and the mask was covered with a brownish coating. (Id. ). Although Fenn had been feeling fine earlier that evening, she began experiencing headache, nausea, abdominal pain and vomiting shortly after removing the mask. (Id. ). When her symptoms worsened, Fenn called 911 and EMS transported her to the emergency room at St. Elizabeth Hospital. (Id. ).
After arriving at St. Elizabeth, Fenn continued to report difficulty breathing, throbbing headache with an 8/10 pain level and blurry vision in her left eye. (Id. at p. 7-8, ¶ 19-20). Fenn also told hospital staff that the CPAP machine had an "explosive event where the mask actually slammed her in the face." (Id. at p. 8, ¶ 20). It is unclear how long Fenn stayed at the hospital, what kind of treatment she received or whether chronic injuries resulted. (Id. ). The Complaint offers only a general statement that Fenn's damages for physical pain and suffering, emotional distress, loss of earning capacity, loss of enjoyment of life, incurred medical and hospital expenses and loss of earning capacity "have occurred in the past and will continue into the future." (Id. at p. 16, ¶ 53).
According to the Complaint, the Rotech Defendants took custody of Fenn's CPAP machine after the incident. (Id. at p. 3, ¶ 1). The Rotech Defendants then sent the FDA a "grievously inaccurate" Medwatch Form FDC 3500A, which failed to described Fenn's injuries or identify corrective measures taken. (Id. at p. 8, ¶ 21). Fenn alleges that the device is still in the custody of the Rotech Defendants. (Id. at p. 3, ¶ 1).
Fenn filed this civil action on May 9, 2014. (Doc. # 1). That same day, her attorney sent blank summonses to both the Philips Defendants and the Rotech Defendants. The Philips Defendants responded by filing their Joint Motion to Dismiss for Lack of Jurisdiction (Doc. # 9), which the Rotech Defendants adopted (Doc. # 15). About one month later, the Clerk of Court issued a Notice of Deficiency as to these summonses and directed Fenn to file the summonses stating the method of service. Fenn did as required and the Clerk of Court issued the summonses, which were returned executed on June 25, 2014 (Doc. # 17). Defendants then renewed their Joint Motion (Doc. # 19).
1. Standard of Review
"Motions to dismiss for lack of subject matter jurisdiction fall into two general categories: facial attacks and factual attacks." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). While factual attacks focus on the factual existence of subject matter jurisdiction, facial attacks challenge the sufficiency of the pleadings. Id. Facial attacks are evaluated under the same standard applicable to Rule 12(b)(6) motions. Id. Accordingly, courts must "accept all material allegations as true and construe them in the light most favorable to the nonmoving party." Id.
Although Defendants have not specified whether their Motion qualifies as a factual attack or a facial attack, it reads as a facial attack. Instead of disputing any of the facts alleged in the Complaint, Defendants focus on why federal question jurisdiction should not lie. Accordingly, the Court will evaluate Defendants' Motion under the Rule 12(b)(6) standard.
2. Clarification of the Complaint
Before delving into its substantive analysis, the Court must address a few ambiguities in Plaintiff's Complaint. Patricia Fenn brings a total of ten state law claims against the Philips Defendants and the Rotech Defendants: (1) negligence; (2) negligence per se; (3) breach of express warranty; (4) breach of warranty as to merchantability; (5) breach of implied warranty; (6) strict liability for failure to warn; (7) strict liability for design defect; (8) strict liability for manufacturing defect; (9) strict liability for failure to adequately test; and (10) punitive damages. (Doc. # 1, p. 14-24, ¶ 47-112). According to the Complaint, the Court has federal question jurisdiction over some of these claims because they include alleged violations of the Food, Drug, and Cosmetic Act ("FDCA") and Medical Device Amendments ("MDA"), thereby raising issues of "federal statutory and regulatory interpretation." (Id. at p. 6, ...