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Sims v. Atrium Medical Corp.

United States District Court, W.D. Kentucky, Owensboro Division

October 15, 2018



          Joseph H. McKinley, Jr., United States District Court Chief Judge

         This matter is before the Court on Plaintiff's Motion for Leave to File First Amended Complaint. [DN 16]. Fully briefed, this matter is ripe for decision. For the following reasons, the Plaintiff's motion is GRANTED IN PART and DENIED IN PART.

         I. Background

         In early 2015, Plaintiff Joseph J. Sims suffered a bilateral inguinal hernia in his lower abdomen. On or about May 27, 2015, Dr. Anthony Kaiser performed a bilateral laparoscopic hernia repair on Sims at Deaconess Health System in Evansville, Indiana. Dr. Kaiser used tacks and two identical pieces of surgical mesh. The mesh was ProLite Mesh made by Defendant Atrium Medical Corp. (“Atrium”). Following the initial surgery, Sims suffered chronic pain. After initial efforts failed to resolve Sims' chronic pain and other symptoms, Dr. Kaiser performed a laparoscopic removal of one of the pieces of mesh on or about February 24, 2017, at the same hospital in Evansville. Dr. Kaiser noted in his operative report that Sims suffered significant adhesions of the mesh, eventually requiring cauterization of the mesh from Sims' bone. Later, on or about September 29, 2017, Dr. Kaiser performed an additional repair surgery during which he removed more mesh which had adhered to Sims' intestines. Despite both reparative surgeries, Sims was unable to continue working at his job due to chronic pain and he remains unable to work today.

         On December 14, 2017, Sims filed a Complaint alleging six causes of action against Atrium-Negligence (Count I), Strict Products Liability (Count II), Negligence Per Se (Count III), Breach of Implied Warranty (Count IV), Breach of Express Warranty (Count V), and Negligent Misrepresentation (Count V). [DN 1]. Thereafter, Atrium filed a Motion to Dismiss stating that Sims' Complaint failed for three independent reasons: “(1) the ProLite Mesh Instructions for Use, cited and relied upon by Plaintiff in the Complaint, contain the very warnings Plaintiff alleges were not provided; (2) each of the claims asserted fails to satisfy the pleading standards articulated in Twombly and Iqbal; and (3) Plaintiff cannot adequately plead causation.” [DN 8 at 2]. In response, Sims refuted Atrium's claims and requested that the Motion to Dismiss be denied, or, in the alternative, that he be given leave to amend his Complaint. [DN 13]. Atrium replied, stating that Sims' failure to respond to arguments in the Motion to Dismiss constituted admissions and, as such, granting leave to amend would be futile. [DN 14]. On July 16, 2018, the Court issued an Order stating that Sims' prior request for leave to amend was deficient and that if he wished to amend his complaint “he must file a proper motion to amend and tender the proposed amended complaint within 15 days of the entry of this order.” [DN 15 at 2]. The Order further stated that the Court would not rule on Atrium's Motion to Dismiss until it decided whether to allow the amended complaint. On July 31, 2018, 15 days after the Court's Order, Sims filed a Motion for Leave to File First Amended Complaint and attached a Proposed Amended Complaint asserting the same causes of action. [DN 16, 16-1]. Atrium responded on August 21, 2018, asserting that Sims' motion should be denied because Sims waived his arguments, amendment would cause undue delay, and amendment would be futile. [DN 18].

         II. Standard of Review

         Upon a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), a court “must construe the complaint in the light most favorable to plaintiffs, ” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), “accept all well-pled factual allegations as true, ” id., and determine whether the “complaint . . . states a plausible claim for relief, ” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Under this standard, the plaintiff must provide the grounds for its entitlement to relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard only when it “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint falls short if it pleads facts “merely consistent with a defendant's liability” or if the alleged facts do not “permit the court to infer more than the mere possibility of misconduct.” Id. at 679. Instead, “a complaint must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Id. at 663 (quoting Fed.R.Civ.P. 8(a)(2)). “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         If “matters outside the pleadings are presented to and not excluded by the court” when ruling upon a motion under Rule 12(b)(6), the Federal Rules require that “the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). This Rule does not require the Court to convert a motion to dismiss into a motion for summary judgment every time the Court reviews documents that are not attached to the complaint. Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir. 1999). “[W]hen a document is referred to in the complaint and is central to the plaintiff's claim . . . [, ] the defendant may submit an authentic copy [of the document] to the court to be considered on a motion to dismiss, and the court's consideration of the document does not require conversion of the motion to one for summary judgment.” Id. (quotation omitted).

         III. Discussion

         A. Motion to Dismiss for Failure to State a Claim

         Atrium challenged Sims' Complaint and moved for dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. [DN 8]. According to Atrium, Sims' Complaint fails for the three independent reasons stated above. [DN 8-1 at 2]. In response, Sims states that his claims are sufficiently pled, and, in the alternative, asks the Court for leave to file an amended complaint. [DN 13]. Sims filed a Motion for Leave to File an Amended Complaint, which if granted, would make Atriums' argument of lack of factual allegations moot. [DN 16]. As Sims filed a Motion for Leave to File an Amended Complaint to cure any deficiencies in the original Complaint, the Court must first address whether it will grant Sims' Motion for Leave to File an Amended Complaint. [DN 16].

         B. Motion to Amend

         A motion for leave to file an amended complaint is governed by Fed.R.Civ.P. 15(a)(2) which states that “a party may amend its pleading only with the opposing party's written consent or the court's leave.” A district court should freely grant a plaintiff leave to amend a pleading “when justice so requires.” Fed.R.Civ.P. 15(a)(2). However, a district court may deny a motion to amend where there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).

         1. Waiver of Arguments

         In Atrium's Response to Sims' Motion to Amend, Atrium argues that the motion should be denied “because amendment is futile where Plaintiff has waived opposition to Atrium's dismissal arguments by failing to address them in his response to Atrium's motion to dismiss.” [DN 18 at 2]. As per the Court's July 16, 2018 Order, if the Court grants Sims' Motion to Amend, Atrium's Motion to Dismiss will be moot. [DN 15]. As such, Sims' response in his Opposition to the Motion to Dismiss is of no consequence to his Motion to Amend. [DN 13].

         2. ...

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