Abdulkarim v. Medtronic, Inc.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [7]

          GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE

         I. Introduction

         Presently 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.

         II. Factual Background

         This 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.

         III. Legal Standard

         Fed. R. 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).

         IV. Discussion

         Negligence

         Plaintiffs 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).

         To 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.

         First, 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.

         The 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. at 123.

         The Southern District of Ohio held a complaint did not sufficiently state a product ...