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Petrey v. Ethicon, Inc.

United States District Court, E.D. Kentucky, Central Division, Lexington

October 18, 2019

MELISSA PETREY, Plaintiff,
v.
ETHICON, INC. and JOHNSON & JOHNSON, Defendants.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves, Chief Judge.

         Defendant 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.

         I. Standard of Review

         A 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.

         II. Discussion

         Petrey 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.

         Petrey, 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.

         A. Negligent Infliction of Emotional Distress

         To 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).

         Petrey 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 serious.

         In 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.

         B. Kentucky Consumer Protection Act

         The 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]

         Petrey's 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. ยง ...


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