Daley v. Smith & Nephew Inc.

321 F. Supp. 3d 891
CourtDistrict Court, E.D. Wisconsin
DecidedJune 21, 2018
DocketCase No. 17–CV–1315–JPS
StatusPublished
Cited by2 cases

This text of 321 F. Supp. 3d 891 (Daley v. Smith & Nephew Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daley v. Smith & Nephew Inc., 321 F. Supp. 3d 891 (E.D. Wis. 2018).

Opinion

J. P. Stadtmueller, U.S. District Judge

Plaintiffs bring this action under the Court's diversity jurisdiction to recover for injuries sustained as a result of failed hip replacement implants. All of their claims are premised on Wisconsin statute or common law. (Docket # 36). Presently before the Court is a motion to dismiss by Defendant DiSanto Technology Inc. ("DiSanto"). (Docket # 48). DiSanto machined the femoral neck component of Plaintiffs' hip implants pursuant to a contract with Defendant MiPro U.S. Inc. ("MiPro"). Those hip replacement implants are known as the M-COR Modular Hip System (the "M-COR"). DiSanto argues that, as a mere supplier of a component part used in the M-COR, the claims against it are preempted and barred by the Biomaterials Access Assurance Act ("BAAA"), 21 U.S.C. § 1601 et seq. , which insulates biomaterials suppliers from liability in medical device failure litigation, subject to a few narrow exceptions. DiSanto's motion to dismiss pursuant to the BAAA is fully briefed and, for the reasons stated below, it will be granted.

1. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b) normally governs motions to dismiss a complaint. Rule 12(b)(6) allows a party to move to dismiss a complaint on the ground that it fails to state a viable claim for relief. Fed. R. Civ. P. 12(b)(6). To state a claim, a complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In other words, the complaint must give "fair notice of what the...claim is and the grounds upon which it rests."

*894Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The allegations must "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level[.]" Kubiak v. City of Chicago , 810 F.3d 476, 480 (7th Cir. 2016) (citation omitted). In reviewing the complaint, the Court is required to "accept as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff." Id. at 480-81.

For motions to dismiss brought pursuant to the BAAA, Congress has provided special protocols. See 21 U.S.C. § 1603(a)(2) ; Mattern v. Biomet, Inc. , Civ. No. 12-4931 (ES), 2013 WL 1314695, at *1 (D.N.J. Mar. 28, 2013). The Act applies to "any civil action brought by a claimant, whether in a Federal or State court, on the basis of any legal theory, for harm allegedly caused, directly or indirectly, by an implant." 21 U.S.C. § 1603(b)(1). It provides that "[a] defendant may, at any time during which a motion to dismiss may be filed under applicable law, move to dismiss an action against it on the grounds that the defendant is a biomaterials supplier," and if the defendant: (1) is not a manufacturer of the failed implant; (2) is not a seller of the failed implant; and (3) did not "furnis[h] raw materials or component parts for the implant that failed to meet applicable contractual requirements or specifications." Id. § 1605(a)(1)-(3); see also Whaley v. Morgan Advanced Ceramics, Ltd. , No. 07-cv-00912, 2008 WL 901523, at *2-3 (D. Colo. Mar. 31, 2008).

When addressing a BAAA motion to dismiss, the Court must rule solely on the basis of the pleadings and any affidavits submitted under Sections 1605(c)(2)(A) and (B). 21 U.S.C. § 1605(c)(3). The submission of affidavits concerning the supplier's liability does not automatically convert a BAAA motion to dismiss into a motion for summary judgment, as would typically occur in any other civil litigation. See Fed. R. Civ. P. 12(d) ; Marshall v. Zimmer , No. 99-093-E, 1999 WL 34996711, at *3 (S.D. Cal. Nov. 4, 1999) (The Act "is quite clear that the suppliers can provide affidavits to demonstrate that they are not subject to litigation for their minimal contribution to a medical device ultimately designed, made, and sold by the manufacturer.").1 Thus, the Act allows trial courts to dismiss biomaterials suppliers from lawsuits prior to discovery. 21 U.S.C. § 1605(c)(2)(A)-(B). Further, under Section 1605(e), dismissal of a supplier must be made with prejudice. Id. § 1605(e).2

2. ANALYSIS

As will be explained below, the Court finds that DiSanto is protected as a biomaterials supplier under the BAAA. Consequently, the claims against it must be dismissed. First, however, the Court must address Plaintiffs' contention that the BAAA does not govern their claims at all.

2.1 The BAAA Governs Claims Involving Section 510(k) Devices

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Bluebook (online)
321 F. Supp. 3d 891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daley-v-smith-nephew-inc-wied-2018.