While two-fer Tuesday has that nice alliterative ring to it – three-fer Tuesday gives you more bang for your buck. Pleadings, preemption, and personal jurisdiction. Maybe trifecta-Tuesday?
Plaintiff in Froman v. Coopersurgical, Inc., 2022 US Dist LEXIS 120725, *2-3 (N.D.AL Jul. 8, 2022) filed her complaint alleging that she suffered an injury when a device implanted during her tubal ligation surgery migrated requiring explantation seven years later. She sued multiple parent/subsidiary companies, certain of which appear to be the companies that manufactured the device at the time it was implanted and others seem to be subsequent sellers of the product. All four defendants moved to dismiss on preemption grounds. Three defendants moved to dismiss for lack of personal jurisdiction, and the remaining defendant also moved to dismiss plaintiff’s “shotgun” pleadings as insufficient.
First up was personal jurisdiction. As to one of the parent companies, plaintiff pleaded “no basis at all for personal jurisdiction.” Id. at *8. In fact, that defendant was omitted from the allegations concerning distribution in Alabama or the manufacture of the specific device used in plaintiff’s surgery. As to the rest of the defendants, plaintiff pleaded that they “sell their products and intend that they be used” in Alabama. Id. In response, the subsequent seller produced an affidavit from its CEO establishing that it did not begin selling or marketing the device until years after plaintiff’s device was manufactured and implanted. Id. at *9. Plaintiff’s “significantly-broadened jurisdictional analysis” was that any time a company starts marketing or distributing a product, “it automatically subjects itself to personal jurisdiction for any suit relating to an identical product made by a competitor in that forum.” Id. at *10. But plaintiff disregards due process and fair warning. The court agreed with defendant that it could not “reasonably anticipate being haled into [Alabama] court for a malfunctioning medical device that [defendant] itself had nothing to do with.” Id. at *11.
If you think this successor-seller-jurisdiction theory sounds a bit familiar, you would be right. It feels like a close cousin to innovator liability. In innovator liability cases, plaintiffs try to hold the brand manufacturer liable when they take a generic drug because the brand manufacturer does the marketing and the labeling. But what could a successor seller possibly do that would be connected in any way to plaintiff’s injuries? Here, plaintiff’s argument was that had the successor company adequately warned about the risk of migration when it began marketing the device in 2019, plaintiff’s “physicians might have discovered the cause of her pain sooner.” Id. at *10. But that does not change the fact that the particular device implanted in plaintiff was not designed, manufactured, or sold by this defendant. A fact that negates both liability and persona jurisdiction.
Plaintiff’s also tried to argue that there was personal jurisdiction over the parent companies as alter egos of their subsidiaries. But to pierce the corporate veil in Alabama, control of one company over another is not enough. Plaintiff must demonstrate that the parent “misused” its control and “proximately caused harm to plaintiff through such misuse.” Id. at *12. No allegations of misuse were made in the complaint or in the briefing.
The court next undertook the preemption analysis. Plaintiff’s first six causes of action – design defect, manufacturing defect, failure to warn, strict liability, negligence, and violation of consumer protection laws – were all premised on an alleged failure to report adverse events of migration to the FDA. Id. at *14. The court was unwilling to accept a failure-to-report claim:
Critically, the FDCA’s requirement for truthfully and completely reporting incidents of adverse events is a duty that medical device companies owe to the FDA instead of to consumers. Consequently, all claims premised on the breach of this duty are squarely barred by the MDA’s implied preemption provision.
Id. at *15. Plaintiff argued Buckman was not broad enough to reach their failure-to-report claims, but the court found no distinction between plaintiff’s claims here and the claims in Buckman regarding representations to the FDA. Id. at *16.
To the extent any claims were not based on failure to report, they were expressly preempted because plaintiff failed to “identify a single federal regulation that [defendant] allegedly violated.” Id. at *17. “Unsupported assertions of parallelism” are not enough. Id.
Finally, the court also agreed with defendants that plaintiff’s complaint was an “impermissible shotgun pleading.” The most common shotgun pleading, and the one used by plaintiff here, is one where each subsequent cause of action adopts the allegations of all the preceding counts, “causing each successive count to carry all that came before and the last count to be a combination of the entire complaint.” Id. at *19.
This categorical re-alleging of all preceding counts is a “mortal sin” – and provides grounds for dismissal – where the plaintiff’s failure to more precisely parcel out and identify the facts relevant to each claim materially increased the burden of understanding the factual allegations underlying each count.
Id. Plaintiff’s “exceedingly cumbersome complaint” hindered the court’s ability to engage in a meaningful analysis requiring dismissal. The three defendants over whom the court did not have jurisdiction are dismissed with prejudice. Plaintiff is being given a chance to amend her complaint to see if she can overcome its current flaws as to the remaining defendant.
Three-for-one isn’t too bad. Afterall, three is a magic number.