United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves, Chief Judge.
Ethicon, Inc. (“Ethicon”), a subsidiary of
Johnson & Johnson, produced a prescription pelvic mesh
medical device called TVT Exact. Plaintiff Melissa Petrey
underwent a surgical procedure in March 2017 during which TVT
Exact was implanted in her body. Petrey filed suit in Fayette
County Circuit Court on June 24, 2019, alleging that the TVT
Exact was defective and that she sustained injuries as a
result of its use in her surgery. The defendants removed the
action to this Court and filed a motion to dismiss several of
Petrey's claims pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. For the reasons that follow, the
defendants' motion will be granted.
Standard of Review
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). A motion to dismiss
under Rule 12(b)(6) tests the sufficiency of the complaint.
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plausibility is not akin to probability. It does require more
than “a sheer possibility that a defendant has acted
unlawfully.” Id. at 678. While detailed
factual allegations are not necessary, a plaintiff is
required to offer more than a recitation of the elements of
the cause of action or conclusory allegations. Id.
agrees that several of her claims may be dismissed, but
indicates that they should be dismissed without prejudice.
These claims include: negligent manufacturing defect (count
I); strict liability-manufacturing defect (count II); strict
liability-defective product (count IV); common law fraud
(count VI); fraudulent concealment (count VII); constructive
fraud (count VIII); negligent misrepresentation (count IX);
breach of express warranty (count XI); and breach of implied
warranty (count XII). She did not provide a substantive
response to the defendants' arguments regarding dismissal
of these claims. Although the Court could dismiss these
claims with prejudice based on Petrey's failure to
respond, see L.R. 7.1(c), it appears that the
defendants largely agree with Petrey's request to dismiss
the claims without prejudice. [See Record No. 8, p.
10] Accordingly, these claims which have not been fully
briefed by the parties will be dismissed without prejudice.
however, objects to the defendants' motion to dismiss her
claims for negligent infliction of emotional distress (count
X); violations of the Kentucky Consumer Protection Act (count
XIII); punitive damages (count XVI); and “discovery
rule & tolling” (count XVII). Additionally, the
defendants contend that Petrey's breach of warranty
claims should be dismissed with prejudice.
Negligent Infliction of Emotional Distress
state a claim for negligent infliction of emotional distress,
the plaintiff must first satisfy the elements of a general
negligence claim. Estate of Crutcher v. Trover, No.
2012- CA-1841-MR, et al., 2016 WL 106283, at *11 (Ky. Ct.
App. Jan. 8, 2016) (citing Osborne v. Keeney, 399
S.W.3d 1, 6 (Ky. 2012)). In addition to this threshold
requirement, the plaintiff must establish that she has
suffered a severe or serious emotional injury that is greater
than a reasonable person could be expected to endure under
the circumstances. Id. at *11-*12. “Distress
that does not affect the plaintiff's everyday life or
require significant treatment will not suffice.”
Keaton v. G.C. Williams Funeral Home, 436 S.W.3d
538, 544 (Ky. Ct. App. 2013) (quoting Osborne, 399
S.W.3d at 17-18).
alleges in count X of the Complaint that the defendants'
conduct has caused her “emotional distress, severe
physical injuries, economic losses, and other damages. . .
.” [Record No. 1-1, ¶ 91] But Petrey has not
provided any factual support regarding her claim of emotional
distress. She has not identified any facts explaining how her
alleged emotional distress has affected her daily life or
that it has required treatment. Additionally, she has not
described the alleged emotional distress as severe or
response to the defendants' motion to dismiss, Petrey
does not attempt to bolster her claim and, instead, simply
repeats the allegation that she has suffered “physical
injury and emotional distress, disability, impairment, and
loss of enjoyment of life” as a result of the
defendants' actions. Put simply, the claim does not
include enough factual support to suggest that Petrey
suffered severe emotional injury, as required for a claim of
negligent infliction of emotional distress. Accordingly, this
claim will be dismissed.
Kentucky Consumer Protection Act
Kentucky Consumer Protection Act (“KCPA”), K.R.S.
§§ 367.110 et seq., protects consumers
from “unfair, false, misleading, or deceptive acts or
practices in the conduct of any trade or commerce.”
Skilcraft Sheetmetal, Inc. v. Kentucky Machinery,
Inc., 836 S.W.2d 907');">836 S.W.2d 907, 909 (Ky. Ct. App. 1992) (quoting
K.R.S. § 367.170(1)). The KCPA provides a private right
of action to any person who purchases or leases goods
primarily for personal use and suffers the loss of money or
property due to the defendant's unlawful acts. K.R.S.
§ 367.220(1). Petrey claims that the defendants violated
the KCPA in a variety of ways, including engaging in
deceptive advertising. [Record No. 1-1, ¶¶ 116-34]
claim under the KCPA is time-barred. She reports that she
underwent surgery using the defendant's product on March
7, 2017, and does not allege that the defendants committed
any violation of the Act after that date. Section 367.220 of
the KCPA provides that “any person bringing an action
under this section must bring such action within . . . two
(2) years after the violation of K.R.S. §