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Mears v. Astora Women's Helth, LLC

United States District Court, W.D. Oklahoma

April 12, 2019

SHIRLEY MEARS and CARL MEARS, Plaintiffs,
v.
(1) ASTORA WOMEN'S HEALTH, LLC formerly known as American Medical Systems Inc.; (2) AMERICAN MEDICAL SYSTEMS HOLDING COMPANY, INC.; (3) ENDO PHARMACEUTICALS, INC.; and (4) ENDO HEALTH SOLUTIONS, INC.; formerly known as Endo Pharmaceuticals Holdings, Inc., Defendants.

          ORDER

          DAVID L. RUSSELL, UNITED STATES DISTRICT JUDGE

         Before this Court is Defendants' Motion to Dismiss Plaintiffs' Amended Complaint (Doc. 11). The matter is fully briefed and at issue. See Docs. 11-13. For the reasons stated herein, the Court GRANTS in part and DENIES in part Defendants' motion.

         I. Background

         Plaintiffs filed this suit on November 6, 2018, and, responding to Defendants' initial motion to dismiss (Doc. 5), sought leave to amend on December 26, 2018, which the Court granted. See Docs. 6-7. Plaintiffs filed their amended complaint (Doc. 8) on January 2, 2019, and Defendants moved to dismiss the amended complaint on January 16, 2019. See Doc. 11.[1]

         Taking as true all well-pleaded factual allegations in the complaint and viewing them in the light most favorable to Plaintiffs, see Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013), Plaintiffs allege that Defendants “designed, patented, manufactured, labeled, marketed and sold a line of pelvic mesh products” that were primarily intended to “treat[] stress urinary incontinence a[n]d pelvic organ prolapse.” Doc. 8, at 2. Plaintiff Shirley Mears had three of these mesh products surgically implanted on November 8, 2009, to treat uterine and vaginal descent. Id. at 3. On November 10, 2016, these mesh products were “surgically removed, due to the mesh penetrating [Ms. Mears's] vaginal wall.” Id. Among other causes of action, Plaintiffs allege negligence, products liability, and breach of warranty claims against Defendants, asserting that the products at issue were defective and injured Ms. Mears. See id. at 19-57.

         II. Legal Standards for a Fed.R.Civ.P. 12(b)(6) Motion to Dismiss

         A legally-sufficient complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a).[2] Operationalizing the Rule, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face'” to survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard “is ‘a middle ground between heightened fact pleading . . . and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action.'” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). That is, the plaintiff's complaint “need only give the defendant fair notice of what the claim is and the grounds upon which it rests.” Id. at 1192 (internal quotation marks and citations omitted). While assessing plausibility is “a context-specific task . . . requir[ing] . . . court[s] to draw on [their] judicial experience and common sense, ” Iqbal, 556 U.S. at 679, complaints “‘plead[ing] factual content that allows the court to . . . reasonabl[y] infer[] that the defendant is liable for the misconduct alleged'” are facially plausible. See S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

         In considering a Rule 12 motion to dismiss, the Court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff.” Burnett, 706 F.3d at 1235. A complaint may be dismissed for failure to state a claim, though, where its allegations establish that relief is barred by the applicable limitations period. See Chance v. Zinke, 898 F.3d 1025, 1034 (10th Cir. 2018) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).

         III. Discussion

         Defendants move to dismiss Plaintiffs' claims on myriad grounds. First, Defendants argue that the entire amended complaint should be dismissed because it is nothing more than “shotgun” or “kitchen sink” pleading. See Doc. 11, at 4-6. The Court disagrees. Preliminarily, the number and nature of the Defendants merits clarification. Based on the civil docket and the parties' filings, Plaintiffs are asserting claims against four defendants: (1) Astora Women's Health, LLC (formerly known as American Medical Systems, Inc.); (2) American Medical Systems Holding Company, Inc.; (3) Endo Pharmaceuticals, Inc.; and (4) Endo Health Solutions, Inc. (formerly known as Endo Pharmaceuticals Holdings, Inc.). See Doc. 8, at 1.[3] Plaintiffs allege that Astora Women's Health, LLC is a wholly owned subsidiary of American Medical Systems Holding Company, Inc., and in turn that American Medical Systems Holding Company, Inc. is a wholly owned subsidiary of Endo Pharmaceuticals, Inc. and Endo Health Solutions, Inc. See id. In other words, Plaintiffs assert that Defendants share some common, corporate structure and are interrelated in the manufacturing, designing, and marketing of the products at issue. See id. at 1-3.

         As Defendants acknowledge, the purpose of Rule 8's pleading burden is to “‘provide fair notice of the grounds for the claims made against each of the defendants.'” Doc. 11, at 5 (quoting VanZandt v. Okla. Dep't of Human Servs., 276 Fed.Appx. 843, 849 (10th Cir. 2008). Far from being opaque or scattershot, Plaintiffs' amended complaint, though lengthy, is replete with detailed factual allegations that give Defendants fair notice of the claims they face. Moreover, Plaintiffs assert claims, such as products liability, that may implicate actors “up the chain” of production. See Kirkland v. Gen. Motors Corp., 1974 OK 52, ¶ 21, 521 P.2d 1353, 1361. Plaintiffs' decision to allege against Defendants collectively, then, is not fatal to their amended complaint. Accordingly, the Court declines to dismiss the amended complaint in its entirety, as urged by Defendants.

         Second, Plaintiffs concede that Oklahoma's Consumer Protection Act (“OCPA”), 15 O.S. § 751, et seq., does not apply to this case. Doc. 12, at 4. Accordingly, the Court grants Defendant's motion to dismiss as to Plaintiffs' OCPA claim, see Doc. 8, at 46 (Count XIII of the amended complaint).

         Third, Plaintiffs also agree with Defendants' contention that “fraudulent concealment is not an independent cause of action [under Oklahoma law], and therefore is not a claim upon which relief may be granted.” Doc. 11, at 8 (citing McAlister v. Ford Motor Co., No. CIV-14-1351-D, 2015 WL 4775382, at *3 (W.D. Okla. Aug. 13, 2015)); see also Doc. 12, at 7 (“[A]ll claims other than the fraudulent concealment as a separate claim and the violation of the consumer protection laws should remain active . . . .” (emphasis added)). Accordingly, the Court grants Defendants' motion to dismiss as to Plaintiffs' fraudulent concealment claim, see Doc. 8, at 35 (Count VIII of the amended complaint).

         Fourth, Defendants argue that Plaintiffs' negligent infliction of emotional distress (“NIED”) claim should be dismissed, as Oklahoma does not recognize this claim as an independent tort. See Doc. 11, at 9. Plaintiffs tacitly concede this, though they argue that their NIED claim is just a claim for negligence. See Doc. 12, at 4-5. Defendants are correct that “[t]he negligent causing of emotional distress is not an independent tort, but is in effect the tort of negligence.” Ridings v. Maze, 2018 OK 18, ¶ 6, 414 P.3d 835, 837. Plaintiffs have pled a negligence claim in their amended complaint. See Doc. 8, at ...


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