1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Gloria Baca, No. CV-20-01036-PHX-ROS
10 Plaintiff, ORDER
11 v.
12 Johnson & Johnson, et al.,
13 Defendants. 14 15 Plaintiff Gloria Baca had vaginal mesh implanted in 2006. She believes she suffered 16 injuries from the mesh and, in 2020, she filed this suit against Johnson & Johnson and 17 Ethicon, Inc., the mesh’s manufacturers. Those entities seek dismissal of Baca’s 18 manufacturing defect claim as well as her request for punitive damages. There are 19 insufficient facts alleged in the operative complaint to support Baca’s manufacturing defect 20 claim and it will be dismissed. The request for punitive damages, however, may remain. 21 BACKGROUND 22 For present purposes, the only relevant facts are that Baca had “Gynecare TVT 23 mesh” implanted in 2006. That mesh was manufactured by Johnson & Johnson, through 24 its wholly owned subsidiary Ethicon, Inc. (Doc. 30 at 1). Baca experienced complications 25 she attributes to the mesh and, in 2019, Baca “underwent vaginal mesh revision/excision.” 26 (Doc. 30 at 1). On May 28, 2020, Baca filed the present suit alleging sixteen claims, 27 including manufacturing and design defect claims. 28 Before June 2018, cases of this type were transferred to join a multi-district 1 litigation. As of June 2018, however, the MDL stopped accepting transfers. Despite not 2 being a part of the MDL, the MDL is in the background and appears to have impacted 3 Baca’s original complaint. That complaint consisted almost entirely of copied and pasted 4 allegations from other MDL-related suits. (Doc. 29 at 2). Thus, the original complaint 5 contained practically no meaningful allegations regarding Baca’s particular situation. 6 Defendants moved to dismiss the complaint in its entirety. 7 In November 2020, the Court dismissed the original complaint. As relevant here, 8 Baca’s “manufacturing defect” claim was dismissed because there were no factual 9 allegations “identify[ing] a specific manufacturing defect,” such as facts showing her mesh 10 had not been manufactured as designed. (Doc. 29 at 5). The Court also dismissed Baca’s 11 claim for punitive damages, reasoning that Arizona law allows punitive damages in limited 12 circumstances and Baca had not alleged such circumstances were present. (Doc. 29 at 11). 13 Baca was granted leave to amend, which she did in December 2020. 14 Baca’s amended complaint is much more focused than her original. She now asserts 15 only four claims: manufacturing defect, failure to warn, design defect, and negligence. 16 (Doc. 30). While Baca no longer attempts to allege a separate claim for punitive damages, 17 the amended complaint seeks punitive damages in the prayer for relief. (Doc. 30 at 14). 18 Defendants responded to the amended complaint by moving to dismiss the manufacturing 19 defect claim and the request for punitive damages. According to Defendants, the amended 20 complaint still lacks sufficient factual allegations supporting the manufacturing defect 21 claim. In addition, Defendants claim the amended complaint does not establish Baca could 22 be entitled to an award of punitive damages. 23 ANALYSIS 24 I. Manufacturing Defect 25 Determining whether Baca has adequately alleged a manufacturing defect claim 26 requires application of two basic principles regarding motions to dismiss. First, “[f]actual 27 allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. 28 Corp. v. Twombly, 550 U.S. 544, 555 (2007). And second, a complaint must do more than 1 “pleads facts that are merely consistent with a defendant’s liability.” Ashcroft v. Iqbal, 556 2 U.S. 662, 678 (2009). Here, Baca’s amended complaint contains very few factual 3 allegations relevant to her manufacturing defect claim. And even accepting as true all of 4 those factual allegations, Baca’s entitlement to relief remains speculative because her 5 allegations are “merely consistent with” Defendants’ liability. Id. 6 In dismissing the manufacturing defect claim in Baca’s original complaint, the 7 Court explained a plausible claim must be supported by facts establishing “something . . . 8 went wrong during the manufacturing process.” (Doc. 29 at 4). Thus, in amending her 9 complaint Baca needed to identify the manufacturing defect and allege how that particular 10 defect was “tied to the manufacturing process.” (Doc. 29 at 5). Instead of doing that, 11 Baca’s amended manufacturing defect claim pursues a different approach. 12 According to the amended complaint, Baca’s mesh “deviated materially from [its] 13 design and manufacturing specifications” but no specific deviation is identified. (Doc. 30 14 at 4). Baca simply alleges there must have been a manufacturing defect of some sort in her 15 mesh because mesh “of the same model number as the mesh implanted in [her], functioned 16 as designed and did not contract within [other] patients nor [did it cause] them injuries and 17 harm of the nature sustained by Plaintiff.” (Doc. 30 at 4). In addition, the defect in Baca’s 18 mesh 19 is directly tied to the manufacturing process because properly manufactured mesh implanted in some other patients did not 20 contract, retract, shrink, degrade, fragment, disintegrate, creep, and cause chronic inflammation, infections, pain, scarring nor 21 require other patients to acquire have revisions surgeries, all of which occurred in the case of Plaintiff Gloria Baca. 22 23 (Doc. 30 at 4). Unfortunately, Baca’s opposition to the motion to dismiss does not provide 24 any meaningful explanation how these allegations are sufficient in light of the Court’s order 25 on the earlier motion to dismiss. 26 In opposing dismissal of her amended manufacturing defect claim, Baca mostly 27 copied and pasted sentences from her amended complaint without meaningful elaboration. 28 Baca’s only elaboration is her statement that “[i]t is not speculation to assert that, were 1 Plaintiff’s TVT mesh manufactured to the same quality and efficacy as those that were not 2 defective and did not cause those patients injury, Plaintiff herself would not have been 3 injured.” (Doc. 35 at 3). Baca provides no explanation how generic allegations that she 4 was injured by an unidentified manufacturing defect are non-speculative. 5 If Baca has facts showing her mesh was defectively manufactured, as well as facts 6 showing a defect caused her injuries, she should have alleged them in her amended 7 complaint. Standing alone, the amended complaint’s allegations that Baca was injured 8 while other patients were not, do not plausibly establish Baca’s mesh had a manufacturing 9 defect. Baca’s mesh may have been implanted incorrectly or Baca might have 10 idiosyncrasies that rendered her susceptible to complications even with a correctly 11 manufactured mesh. While Baca is entitled to all reasonable inferences, it is not reasonable 12 to conclude Baca’s mesh had a manufacturing defect solely because Baca suffered 13 complications. Iqbal, 556 U.S. at 678 (pleading insufficient if it pleads “facts that are 14 merely consistent with a defendant’s liability”). The manufacturing defect claim will be 15 dismissed with leave to amend. 16 Should Baca choose to amend her manufacturing defect claim it will only be 17 allowed if she alleges specific facts showing how her mesh was manufactured contrary to 18 its design and the resulting injury. For example, Baca might believe properly manufactured 19 mesh never contracts. If so, she must allege that fact. Then, if Baca’s mesh contracted, 20 she should allege that fact as well. Finally, Baca must allege the facts showing the 21 contraction by her mesh was due to how her mesh differed from correctly manufactured 22 mesh.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Gloria Baca, No. CV-20-01036-PHX-ROS
10 Plaintiff, ORDER
11 v.
12 Johnson & Johnson, et al.,
13 Defendants. 14 15 Plaintiff Gloria Baca had vaginal mesh implanted in 2006. She believes she suffered 16 injuries from the mesh and, in 2020, she filed this suit against Johnson & Johnson and 17 Ethicon, Inc., the mesh’s manufacturers. Those entities seek dismissal of Baca’s 18 manufacturing defect claim as well as her request for punitive damages. There are 19 insufficient facts alleged in the operative complaint to support Baca’s manufacturing defect 20 claim and it will be dismissed. The request for punitive damages, however, may remain. 21 BACKGROUND 22 For present purposes, the only relevant facts are that Baca had “Gynecare TVT 23 mesh” implanted in 2006. That mesh was manufactured by Johnson & Johnson, through 24 its wholly owned subsidiary Ethicon, Inc. (Doc. 30 at 1). Baca experienced complications 25 she attributes to the mesh and, in 2019, Baca “underwent vaginal mesh revision/excision.” 26 (Doc. 30 at 1). On May 28, 2020, Baca filed the present suit alleging sixteen claims, 27 including manufacturing and design defect claims. 28 Before June 2018, cases of this type were transferred to join a multi-district 1 litigation. As of June 2018, however, the MDL stopped accepting transfers. Despite not 2 being a part of the MDL, the MDL is in the background and appears to have impacted 3 Baca’s original complaint. That complaint consisted almost entirely of copied and pasted 4 allegations from other MDL-related suits. (Doc. 29 at 2). Thus, the original complaint 5 contained practically no meaningful allegations regarding Baca’s particular situation. 6 Defendants moved to dismiss the complaint in its entirety. 7 In November 2020, the Court dismissed the original complaint. As relevant here, 8 Baca’s “manufacturing defect” claim was dismissed because there were no factual 9 allegations “identify[ing] a specific manufacturing defect,” such as facts showing her mesh 10 had not been manufactured as designed. (Doc. 29 at 5). The Court also dismissed Baca’s 11 claim for punitive damages, reasoning that Arizona law allows punitive damages in limited 12 circumstances and Baca had not alleged such circumstances were present. (Doc. 29 at 11). 13 Baca was granted leave to amend, which she did in December 2020. 14 Baca’s amended complaint is much more focused than her original. She now asserts 15 only four claims: manufacturing defect, failure to warn, design defect, and negligence. 16 (Doc. 30). While Baca no longer attempts to allege a separate claim for punitive damages, 17 the amended complaint seeks punitive damages in the prayer for relief. (Doc. 30 at 14). 18 Defendants responded to the amended complaint by moving to dismiss the manufacturing 19 defect claim and the request for punitive damages. According to Defendants, the amended 20 complaint still lacks sufficient factual allegations supporting the manufacturing defect 21 claim. In addition, Defendants claim the amended complaint does not establish Baca could 22 be entitled to an award of punitive damages. 23 ANALYSIS 24 I. Manufacturing Defect 25 Determining whether Baca has adequately alleged a manufacturing defect claim 26 requires application of two basic principles regarding motions to dismiss. First, “[f]actual 27 allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. 28 Corp. v. Twombly, 550 U.S. 544, 555 (2007). And second, a complaint must do more than 1 “pleads facts that are merely consistent with a defendant’s liability.” Ashcroft v. Iqbal, 556 2 U.S. 662, 678 (2009). Here, Baca’s amended complaint contains very few factual 3 allegations relevant to her manufacturing defect claim. And even accepting as true all of 4 those factual allegations, Baca’s entitlement to relief remains speculative because her 5 allegations are “merely consistent with” Defendants’ liability. Id. 6 In dismissing the manufacturing defect claim in Baca’s original complaint, the 7 Court explained a plausible claim must be supported by facts establishing “something . . . 8 went wrong during the manufacturing process.” (Doc. 29 at 4). Thus, in amending her 9 complaint Baca needed to identify the manufacturing defect and allege how that particular 10 defect was “tied to the manufacturing process.” (Doc. 29 at 5). Instead of doing that, 11 Baca’s amended manufacturing defect claim pursues a different approach. 12 According to the amended complaint, Baca’s mesh “deviated materially from [its] 13 design and manufacturing specifications” but no specific deviation is identified. (Doc. 30 14 at 4). Baca simply alleges there must have been a manufacturing defect of some sort in her 15 mesh because mesh “of the same model number as the mesh implanted in [her], functioned 16 as designed and did not contract within [other] patients nor [did it cause] them injuries and 17 harm of the nature sustained by Plaintiff.” (Doc. 30 at 4). In addition, the defect in Baca’s 18 mesh 19 is directly tied to the manufacturing process because properly manufactured mesh implanted in some other patients did not 20 contract, retract, shrink, degrade, fragment, disintegrate, creep, and cause chronic inflammation, infections, pain, scarring nor 21 require other patients to acquire have revisions surgeries, all of which occurred in the case of Plaintiff Gloria Baca. 22 23 (Doc. 30 at 4). Unfortunately, Baca’s opposition to the motion to dismiss does not provide 24 any meaningful explanation how these allegations are sufficient in light of the Court’s order 25 on the earlier motion to dismiss. 26 In opposing dismissal of her amended manufacturing defect claim, Baca mostly 27 copied and pasted sentences from her amended complaint without meaningful elaboration. 28 Baca’s only elaboration is her statement that “[i]t is not speculation to assert that, were 1 Plaintiff’s TVT mesh manufactured to the same quality and efficacy as those that were not 2 defective and did not cause those patients injury, Plaintiff herself would not have been 3 injured.” (Doc. 35 at 3). Baca provides no explanation how generic allegations that she 4 was injured by an unidentified manufacturing defect are non-speculative. 5 If Baca has facts showing her mesh was defectively manufactured, as well as facts 6 showing a defect caused her injuries, she should have alleged them in her amended 7 complaint. Standing alone, the amended complaint’s allegations that Baca was injured 8 while other patients were not, do not plausibly establish Baca’s mesh had a manufacturing 9 defect. Baca’s mesh may have been implanted incorrectly or Baca might have 10 idiosyncrasies that rendered her susceptible to complications even with a correctly 11 manufactured mesh. While Baca is entitled to all reasonable inferences, it is not reasonable 12 to conclude Baca’s mesh had a manufacturing defect solely because Baca suffered 13 complications. Iqbal, 556 U.S. at 678 (pleading insufficient if it pleads “facts that are 14 merely consistent with a defendant’s liability”). The manufacturing defect claim will be 15 dismissed with leave to amend. 16 Should Baca choose to amend her manufacturing defect claim it will only be 17 allowed if she alleges specific facts showing how her mesh was manufactured contrary to 18 its design and the resulting injury. For example, Baca might believe properly manufactured 19 mesh never contracts. If so, she must allege that fact. Then, if Baca’s mesh contracted, 20 she should allege that fact as well. Finally, Baca must allege the facts showing the 21 contraction by her mesh was due to how her mesh differed from correctly manufactured 22 mesh. If Baca’s mesh contracted because it contained a compound contrary to its intended 23 ingredients, Baca must allege that. Alternatively, if Baca’s mesh was manufactured in a 24 shape contrary to the intended design, Baca must allege that. Regardless of the precise 25 contours of the defect at issue, Baca must allege the specific facts showing the particular 26 manufacturing defect such that all parties can pursue appropriate discovery regarding that 27 theory. See OTR Wheel Eng’g, Inc. v. W. Worldwide Servs., Inc., 897 F.3d 1008, 1024 (9th 28 Cir. 2018) (“A complaint guides the parties’ discovery, putting the defendant on notice of 1 the evidence it needs to adduce in order to defend against the plaintiff’s allegations.”). 2 II. Punitive Damages 3 In her original complaint, Baca alleged a separate claim for punitive damages. (Doc. 4 1 at 54). The Court dismissed that claim, reasoning Baca had not alleged sufficient facts 5 establishing she could obtain punitive damages based on the limitations Arizona law places 6 on punitive damages in suits of this type. In her amended complaint, Baca does not allege 7 a separate claim for punitive damages but she does list punitive damages in her prayer for 8 relief. Defendants now seek “dismissal” of the request for punitive damages, claiming 9 Baca has again failed to establish a plausible basis to recover such damages under Arizona 10 law. 11 The original dismissal of Baca’s standalone “claim” for punitive damages was 12 correct given that, under Arizona law, “[t]here is no such thing as a cause of action simply 13 for punitive damages.”1 Quiroga v. Allstate Ins. Co., 726 P.2d 224, 226 (Ariz. Ct. App. 14 1986). But now that Baca has properly listed punitive damages merely as one form of 15 relief, it would be improper to “dismiss” such a request at this point. An Arizona statute 16 imposes special limits on the award of punitive damages in cases of this type. A.R.S. § 12- 17 689. That statute, however, involves multiple fact-based exceptions that turn on a 18 manufacturer’s conduct. For example, Baca might be able to recover punitive damages if 19 Defendants withheld information from a government agency. A.R.S. § 12-689(B)(2). 20 Whether that occurred is something that may be uniquely within Defendants’ knowledge. 21 At the very least, it would be impractical to require a plaintiff affirmatively allege not just 22 the facts within her knowledge regarding inappropriate behavior by a product 23 manufacturer, but also all the other facts to show she can take advantage of a statutory 24 exception to the bar on punitive damages. The pleading stage is not the right time for such 25 an inquiry. 26 Moreover, it is doubtful Baca was required to explicitly seek punitive damages in 27 her complaint if she wishes to pursue such damages. See, e.g., Cancellier v. Federated
28 1 The parties seem to agree Arizona law will govern all aspects of Baca’s claims, including her request for punitive damages. The Court will assume that is correct. Dep’t Stores, 672 F.2d 1312, 1319 (9th Cir. 1982) (“No specific prayer for emotional 2|| distress or punitive damages is needed.”). See also Red Rock Commc’ns, Inc. v. Am. 3|| Telecasting, Inc., 2006 WL 2432628, at *5 (D. Nev. Aug. 21, 2006) (“Under Rule 54(c), 4|| [the plaintiff's] failure specifically to seek punitive damages on the remaining claims does 5 || not preclude a judgment awarding punitive damages.”). If the request for punitive damages || was “dismissed” as Defendants request, Baca might still be able to pursue discovery related to punitive damages and recover punitive damages at trial. Baca may or may not be entitled 8 || to punitive damages but that is a matter left for a more developed record. 9 Accordingly, 10 IT IS ORDERED the Motion to Dismiss (Doc. 34) is GRANTED IN PART. The claim for manufacturing defect is DIMISSED WITH LEAVE TO AMEND. No later than June 28, 2021, Plaintiff shall either file an amended complaint or file a statement 13} indicating no amended complaint will be filed. Defendants need not answer the current □□ complaint unless Plaintiff files a statement indicating she will not amend. If Plaintiff files 15 || such a statement, Defendants shall answer the current complaint no later than July 6, 2021. 16|| If Plaintiff files an amended complaint, Defendants shall respond to that complaint within 17 || the deadlines set by the rules. 18 Dated this 16th day of June, 2021. 19 fo . 20 C | . ES . 21 Honorable slyn ©. Silver 02 Senior United States District Judge 23 24 25 26 27 28
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