Yosowitz v. Covidien LP

182 F. Supp. 3d 683, 2016 U.S. Dist. LEXIS 54641, 2016 WL 1664916
CourtDistrict Court, S.D. Texas
DecidedApril 25, 2016
DocketCIVIL ACTION NO. H-15-2902
StatusPublished
Cited by5 cases

This text of 182 F. Supp. 3d 683 (Yosowitz v. Covidien LP) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yosowitz v. Covidien LP, 182 F. Supp. 3d 683, 2016 U.S. Dist. LEXIS 54641, 2016 WL 1664916 (S.D. Tex. 2016).

Opinion

MEMORANDUM OPINION AND ORDER

SIM LAKE, UNITED STATES DISTRICT JUDGE

Plaintiffs Brenda S. Yosowitz and Edward E. Yosowitz, M.D. (together, “Plaintiffs”) sued Covidien LP (“Defendant” or “Covidien”) in the 215th Judicial District Court of Harris County, Texas.1 Defendant removed the case to this court.2 Pending before the court is Defendant Covidien LP’s Motion to Dismiss Plaintiffs’ First Amended Complaint (Docket Entry No. [686]*68621). For the reasons stated below, the motion to dismiss will be granted, and this action will be dismissed with prejudice.

I. Factual Allegations and Procedural Background

One of the Plaintiffs underwent a procedure to repair two intracranial aneurysms on February 18, 2015.3 Covidien manufactures the Pipeline Embolization Device (the “Pipeline”) used in the procedure, which is coated with polytetrafluorothy-lene.4 Plaintiffs allege the coating delami-nated and detached from the delivery wire during surgery, allowing coating particulate to cause a blockage to a blood vessel in the Plaintiffs brain and resulting in mini-strokes from which the Plaintiff has suffered serious injuries.5

Plaintiffs filed suit, asserting causes of action for negligence, strict products liability (§ 402-A), breach of express warranty, breach of implied warranty, failure to comply with 21 C.F.R. § 820.30 Design Controls and Federal Food, Drug, and Cosmetic Act § 521(a), 21 U.S.C.A. § 360k(a), and gross negligence.6 Plaintiffs filed an Amended Complaint after Covidien removed the action to federal court alleging the same causes of action.7 Covidien had previously filed Defendant Covidien LP’s Motion to Dismiss Plaintiffs’ Petition and Brief in Support (“Motion to Dismiss”) (Docket Entry No. 14) and adopted the arguments in that motion by reference in its present motion.8 This opinion references the original Motion to Dismiss unless noted otherwise. Covidien moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on federal preemption grounds and because the claims otherwise fail to meet the Federal Rules of Civil Procedure pleading requirements.9 Plaintiffs respond that not all of their claims are subject to federal preemption and that Co-vidien’s motion is premature.10

II. Standard of Review

Under Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A Rule 12(b)(6) motion tests the formal sufficiency of the pleadings and is “appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001), cert. denied sub nom. Cloud v. United States, 536 U.S. 960, 122 S.Ct. 2665, 153 L.Ed.2d 839 (2002). The court must accept the factual allegations of the complaint as true, view them in a light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiffs favor. Id

[687]*687To defeat a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 127 S.Ct. at 1965). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 127 S.Ct. at 1965), “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”’” Id. (quoting Twombly, 127 S.Ct. at 1966). When considering a motion to dismiss, district courts are “limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.2010). “Federal courts are required to dismiss ... claims based on invalid legal theories, even though they may be otherwise well-pleaded.” Flynn v. State Farm Fire & Casualty Insurance Co. (Texas), 605 F.Supp.2d 811, 820 (W.D.Tex.2009) (citing Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989)).

III. Analysis

A. Judicial Notice

Covidien requests that the court take judicial notice of certain publicly available Food and Drug Administration (“FDA”) records that Covidien attached to the Motion to Dismiss.11 These records relate to the FDA premarket approval application (“PMA”) process that certain medical devices must undergo, and are all screenshots of the FDA website or PDF-format documents available through the FDA website.12 A district court reviewing a motion to dismiss must consider.the entire complaint “ ‘as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.’ ”13 Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir.[688]*6882011) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S.Ct. 2499, 2509, 168 L.Ed.2d 179 (2007)).

Under Federal Rule ' of Evidence 201(b)(2), “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it ...

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Cite This Page — Counsel Stack

Bluebook (online)
182 F. Supp. 3d 683, 2016 U.S. Dist. LEXIS 54641, 2016 WL 1664916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yosowitz-v-covidien-lp-txsd-2016.