United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
before the Court is Defendant's Motion to Dismiss.
Defendant seeks to dismiss all three counts that Plaintiffs
have filed against it. For the reasons that follow, the Court
will grant Defendant's Motion to Dismiss.
case stems from the alleged defect of an electrosurgical
generator (ESG) used during surgery on Plaintiff Charles
Abdulkarim. Dkt. No. 1, pg. 18 (Pg. ID 18). Tyco Healthcare
Group designed and manufactured the ESG. Id. Tyco
then spun off its business to Covidien PLC in 2007.
Id. Medtronic bought Covidien in 2015, including its
assets and liabilities. Id. On August 1, 2014,
Plaintiff Abdulkarim underwent orthopedic surgery that
included the use of the ESG at the Royal Oak Surgical Center.
Dkt. No. 1, pg. 19 (Pg. ID 19). During the surgery, Plaintiff
suffered non-superficial burns. Id. On July 28,
2017, Plaintiffs filed their complaint against Defendant in
the circuit court for Oakland County. Id. at pg 17,
24 (Pg. ID 17, 24). Plaintiffs alleged negligence, breach of
the implied warranty of fitness, and loss of consortium.
Id. at 19-23 (Pg. ID 19-23). On September 5, 2017,
Defendant removed the case to this Court. Dkt. No. 1. On
September 12, 2017, Defendant filed the present Motion to
Dismiss claiming Plaintiffs failed to plead sufficient facts
to sustain their claims. See Dkt. No. 7. Plaintiffs
responded on October 3, 2017, opposing the Motion. Dkt. No.
9. On October 18, 2017, Defendant replied.
Civ. P. 12(b)(6) governs motions to dismiss. The court must
construe the complaint in favor of the plaintiff, accept the
allegations of the complaint as true, and determine whether
plaintiff's factual allegations present plausible claims.
See Fed. R. Civ. P. 12(b)(6). To survive a motion to
dismiss, a complaint must “allege enough facts to make
it plausible that the defendant bears legal liability.”
Agema v. City of Allegan, 826 F.3d 326, 331 (6th
Cir. 2016). The facts need to make it more than “merely
possible that the defendant is liable; they must make it
plausible.” Id. “Bare assertions of
legal liability absent some corresponding facts are
insufficient to state a claim.” Id. A claim
will be dismissed “if the facts as alleged are
insufficient to make a valid claim or if the claim shows on
its face that relief is barred by an affirmative
defense.” Riverview Health Inst., LLC v. Med. Mut.
Of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).
allege that Defendant is liable in negligence for failing to
design, label, manufacture, assemble, inspect, test, and
market the ESG properly. Dkt. No. 1, pg. 20 (Pg. ID 20).
prevail in a products negligence action in Michigan, a
Plaintiff must show that: (1) the product was defectively
manufactured; (2) the product reached the plaintiff in the
same condition that it was in when it left the manufacturer;
and (3) the defect proximately caused the plaintiff's
injury. See Prentis v. Yale Mfg., 365 N.W.2d 176,
186 (Mich. 1985); see also Meemic Ins. Co. v.
Hewlett-Packard Co., 717 F.Supp.2d 752, 768 (E.D. Mich.
2010). A plaintiff is not required to point to a specific
defect, but he must provide more than “mere
supposition” to establish that there was a defect.
Meemic Ins. Co., 717 F.Supp.2d at 771.
Plaintiffs must plead facts sufficient to allege that the ESG
was defectively manufactured. Other courts have considered
the adequacy of the defect described in the complaint for
motions to dismiss.
United States District Court for the District of Columbia
held that a complaint was insufficient to state a defect
where the plaintiff alleged a drug was “unreasonably
dangerous” and hence defective. Rollins v.
Wackenhut Servs., 802 F.Supp.2d 111, 123-24 (D.D.C.
2011). The court also noted that the complaint did not
identify what about the drug made it defective. Id.
Southern District of Ohio held a complaint did not
sufficiently state a product ...