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Miller v. Zimmer Biomet Inc.

United States District Court, D. Maine

November 30, 2017

JANICE E. MILLER, et al., Plaintiffs
ZIMMER BIOMET INC., et al., Defendants


          John C. Nivison U.S. Magistrate Judge

         In this products liability action, Plaintiffs Janice and Donald Miller seek to recover for injuries they claim were caused by a defective hip implant designed and manufactured by Defendants.

         The matter is before the Court on Defendants' motion to dismiss. (Motion to Dismiss, ECF No. 16.) Through their motion, Defendants ask the Court to dismiss three of the ten claims asserted by Plaintiffs. Specifically, Defendants have moved to dismiss Plaintiffs' claims of fraud, negligence per se, and punitive damages.

         Following a review of the pleadings, and after consideration of the parties' arguments, I recommend the Court grant in part and deny in part the motion.


         The following facts are drawn from Plaintiffs' complaint and are accepted as true for purposes of evaluating the pending motion to dismiss. Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16 (1st Cir. 1998).

         Plaintiff Janice Miller underwent right hip replacement surgery on March 22, 2012. Defendants designed and manufactured the hip implant components, specifically the Zimmer VerSys Hip System Femoral Head 12/14 Taper and the Zimmer M/L Taper Prostehesis (“the product”).[1] (Complaint ¶¶ 1 - 2, 24.) On July 1, 2016, Plaintiff required a revision surgery because, according to Plaintiffs, the implant was emitting metal debris through a process known as “mechanically assisted crevice corrosion” (MACC), which debris caused metallosis and necrosis. (Id. ¶¶ 3, 28, 30, 31.) Subsequently, Plaintiff underwent two irrigation and debribement procedures, and a further procedure to address an infection. (Id. ¶¶ 4, 36, 42.) On January 26, 2017, Plaintiff received “an antibiotic laden total hip replacement, followed on February 6, 2017, by a sixth surgical procedure. (Id. ¶¶ 44 - 45.) Plaintiff suffers from a staph infection as a consequence of the surgeries. (Id. ¶¶ 4 - 5, 40 - 41, 46.)

         Plaintiffs assert that Defendants' product is defective because the location at which the femoral head and neck of the prosthesis join is susceptible to fretting and corrosion, which process releases metal particles and ions that negatively impact blood and local tissue. (Id. ¶¶ 63.) Plaintiffs also allege that Defendants knew or should have known of the defect prior to the hip replacement surgeries, misrepresented that the product was safe for its intended use, and purposefully failed to disclose the defect to surgeons and the public, in violation of the requirements of the Medical Device Amendments to the Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301 et seq. (Id. ¶¶ 62 - 113.)

         Plaintiffs assert claims of negligence (count I), strict product liability (counts II - IV), negligent misrepresentation (count V), fraudulent misrepresentation and concealment (count VI), negligence per se (count VII), breach of implied warranties (count VIII), punitive damages (count IX), and loss of consortium (count X).


         A. Motion to Dismiss Standard

         Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may seek dismissal of “a claim for relief in any pleading” if that party believes that the pleading fails “to state a claim upon which relief can be granted.” In its assessment of the motion, a court must “assume the truth of all well-plead facts and give the plaintiff[] the benefit of all reasonable inferences therefrom.” Blanco v. Bath Iron Works Corp., 802 F.Supp.2d 215, 221 (D. Me. 2011) (quoting Genzyme Corp. v. Fed. Ins. Co., 622 F.3d 62, 68 (1st Cir. 2010)). To overcome the motion, a plaintiff must establish that the allegations raise a plausible basis for a fact finder to conclude that the defendant is legally responsible for the claim at issue. Id.

         B. Fraudulent Misrepresentation and Concealment (count VI)

         Defendants argue Plaintiffs have failed to plead fraud with particularity, and have failed to assert facts that would support an inference of detrimental reliance. (Motion at 3 - 5, ECF No. 16.) To prove a claim of fraudulent misrepresentation, a plaintiff must show that the defendant supplied false information concerning a material fact, with knowledge of the falsity or in reckless disregard of the falsity of the statement, in order to induce another to act or refrain from acting based on the false representation. Knowlton v. Shaw, 791 F.Supp.2d 220, 261 (D. Me. 2011). Similarly, to prove a claim of fraudulent concealment, a plaintiff must show a failure to disclose a material fact, where there is a legal or equitable duty to disclose, with the intention of inducing another to act or refrain from acting in reliance on the non-disclosure. Picher v. Roman Catholic Bishop of Portland, 2013 ME 99, ¶ 3, 82 A.3d 101, 102 - 103. A plaintiff must also show that he or she actually relied on the misrepresentation or concealment to his or her detriment and that the reliance was justified. Id.; Knowlton, 791 F.Supp.2d at 261.

         Federal Rule of Civil Procedure 9(b) provides that a party alleging fraud “must state with particularity the circumstances constituting fraud.” “[T]he purpose of the heightened pleading requirement of Rule 9(b) is ‘to give notice to defendants of the plaintiffs' claim, to protect defendants whose reputation may be harmed be meritless claims of fraud, to discourage ‘strike suits', and to prevent the filing of suits that simply hope to uncover relevant information during discovery.” J.S. McCarthy Co. v. Brausse Diecutting & Converting Equip., Inc., 340 F.Supp.2d 54, 59 (D. Me. 2004) (quoting Doyle v. Hasbro, 103 F.3d 186, 194 (1st Cir. 1996)).

         Plaintiffs argue that to the extent their claim is based on fraudulent concealment, they need not allege with particularity the details of any particular non-disclosure, but can rely on allegations that Defendants represented the product was safe for its intended use, and knew the product was defective. (Opposition at 6 - 7.) In Taylor v. Ford Motor Company, this Court denied a motion to dismiss for want of specificity, where the plaintiff alleged that the defendant knew a vehicle was not crashworthy based on crash tests it conducted, but nevertheless falsely described the vehicle as “tough” in a marketing campaign. No. 1:06-cv-00069, 2006 WL 2228973, at *7 (D. Me. Aug. 3, 2006). Plaintiffs maintain that the reasoning of Taylor demonstrates that a plaintiff is not required to specify the time and place of a failure to disclose where the allegations are sufficient to notify the defendant of the “precise misconduct with which they are charged.” (Opposition at 7, quoting Southco, Inv. v. Penn Eng'g & Mrg. Corp., 768 F.Supp.2d 715, 720 (D. Del. 2011).)[2]

         Plaintiffs argue their misrepresentation and concealment allegations are specific, and that their case “is on all fours with Taylor.” (Opposition at 6.) They rely on the following allegations. (See Opposition at 7 - 9.)

25. On or about January 3, 2013, Plaintiff Janice E. Miller underwent a total hip arthroplasty of her left hip with insertion of the Products performed by Brian McGrory, M.D., at Maine Medical Center in Portland, Maine. ….
30. Based upon these findings and in light of worsening symptoms, Plaintiff underwent a complex revision surgery of her right prosthesis on July 1, 2016, performed by Brian McGrory, M.D., at Maine Medical Center in Portland, Maine. ….
56. The Zimmer M/L Taper was approved pursuant to a 510(k) on or about May 12, 2006, and Zimmer proceeded to sell the components to be used together with the Zimmer VerSys femoral head. ….
61. Defendant Zimmer failed to disclose the greater risk of wear, metal debris and corrosion associated with these devices.
62. Defendant Zimmer used its distributors and its sales representatives to communicate with the doctors, such as Dr. McGrory and ...

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