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DuRocher v. Riddell, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

March 31, 2015

JOHN DUROCHER individually and on behalf of all others similarly situated, DARIN HARRIS individually and on behalf of all others similarly situated, Plaintiffs,

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[Copyrighted Material Omitted]

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For JOHN DUROCHER, individually and on behalf of all others similarly situated, DARIN HARRIS, individually and on behalf of all others similarly situated, Plaintiffs: David B. Franco, PRO HAC VICE, THE DUGAN LAW FIRM, APLC, New Orleans, LA; Don Barrett, PRO HAC VICE, BARRETT LAW OFFICE PA, Lexington, MS; Elizabeth J. Cabraser, PRO HAC VICE, LIEFF CABRASER HEIMANN & BERNSTEIN, San Francisco, CA; Irwin B. Levin, Lynn A. Toops, Richard E. Shevitz, Scott D. Gilchrist, Vess Allen Miller, COHEN & MALAD LLP, Indianapolis, IN; James Dugan, THE DUGAN LAW FIRM, APLC, New Orleans, LA; Wendy Ruth Fleishman, PRO HAC VICE, LIEFF CABRASHER HEIMANN & BERNSTEIN LLP, New York, NY.

For ANTHONY MIRANDO, Plaintiff: David B. Franco, James Dugan, THE DUGAN LAW FIRM, APLC, New Orleans, LA; Don Barrett, BARRETT LAW OFFICE PA, Lexington, MS; Elizabeth J. Cabraser, PRO HAC VICE, LIEFF CABRASER HEIMANN & BERNSTEIN, San Francisco, CA; Richard E. Shevitz, Vess Allen Miller, Irwin B. Levin, COHEN & MALAD LLP, Indianapolis, IN; Wendy Ruth Fleishman, PRO HAC VICE, LIEFF CABRASHER HEIMANN & BERNSTEIN LLP, New York, NY.

For NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Transferred per the conditional transfer order (Docket #54) to the Northern District of Illinois, Defendant: Mark S. Mester, LATHAM & WATKINS LLP, Chicago, IL.

For RIDDELL, INC., RIDDELL SPORTS GROUP, INC., EASTON-BELL SPORTS, INC., Defendants: Cary A. Slobin, BOWMAN & BROOKE, LLP, Dallas, TX; Paul Cereghini, BOWMAN & BROKE LLP, Phoenix, AZ; Randall R. Riggs, FROST BROWN TODD LLC, Indianapolis, IN; Robert Latane Wise, BOWMAN AND BROOKE LLP, Richmond, VA.

For ALL AMERICAN SPORTS CORPORATION, doing business as RIDDELL/ALL AMERICAN, Defendant: Paul Cereghini, BOWMAN & BROKE LLP, Phoenix, AZ; Randall R. Riggs, FROST BROWN TODD LLC, Indianapolis, IN; Robert Latane Wise, BOWMAN AND BROOKE LLP, Richmond, VA.

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I. Introduction.

Defendants, collectively referred to as Riddell, move to dismiss Plaintiffs John DuRocher and Darin Harris's Second Amended Complaint (SAC) in its entirety. Plaintiffs assert four claims for relief in their SAC: (1) Medical Monitoring; (2) Negligence; (3) Strict Liability for Design Defect; and (4) Strict Liability for Manufacturing Defect. [SAC ¶ ¶ 164-94.] For the following reasons, Defendants' Motion to Dismiss [Dkt. No. 76] is GRANTED IN PART and DENIED IN PART.

II. Background and Procedural History.

Defendants provide a thorough summary of the facts as alleged in the SAC and Plaintiffs do not contest the facts as

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described by the Defendants. We take those facts as controlling in ruling on the motion to dismiss.

A. DuRocher's and Harris's Head Injuries.

Plaintiffs John Durocher and Darin Harris are former University of Washington football players. [SAC ¶ ¶ 13-17.] Both Plaintiffs allege that they suffered concussions and repeated head impacts while playing college football and wearing helmets manufactured by Riddle. [ Id. ¶ ¶ 13-17.]

Mr. DuRocher was a student at the University of Oregon as well as the University of Washington. [ Id.¶ 13.] Mr. DuRocher played college football as a quarterback from 2003-2006, during the course of which he experienced repeated traumatic head impacts. [ Id.] As Plaintiffs explain, during one game Mr. DuRocher sustained a hit that left him immediately lightheaded and dizzy. [ Id.] He was removed from the game and diagnosed with a concussion. [ Id.] Following his graduation, Mr. DuRocher has experienced frequent, severe headaches. [ Id.]

Mr. Harris played college football at the University of Washington from 2004 to 2008 in the position of strong safety and with the special teams unit. [ Id.¶ 15.] Mr. Harris alleges that he experienced " repeated traumatic head impacts" during his college football career. [ Id. ¶ 16.] During a football game in 2007, he sustained an impact injury to his head in which he was " blindsided and experienced lightheadedness and dizziness." [ Id.] He recalls returning to play when the defense next took the field. Mr. Harris recalls incurring another " severe impact to the head" in a 2008 football game, after which he was diagnosed with a concussion. [ Id.] Following the conclusion of his football career, Mr. Harris has experienced " frequent severe headaches, memory loss, an inability to concentrate or focus, anxiety, and depression." [ Id.]

Both Messrs. DuRocher and Harris allege that they have suffered " other similar head impacts" while playing football in college, but neither can recall the incidents with specificity. [ Id. ¶ ¶ 13, 16.] They both also allege that " [u]pon information and belief," they each " wore Riddle helmets while playing and/or practicing during their collegiate football careers." [ Id. ¶ ¶ 122, 14, 17.]

B. The Dangers of Head Injuries and Development of Helmet Standards.

Plaintiffs allege that the medical community and more recently the general public have for some time recognized the risks of repeated concussions and head impacts, including a " heightened risk of long[-]term, chronic neuro-cognitive sequela" as a result of those impacts. [ Id. ¶ 29.] According to Plaintiffs, the medical community has " known about concussions and the effects of concussions in football for over a century." [ Id. ¶ 30.]

Plaintiffs cite various scientific studies documenting that repeated traumatic head impacts cause ongoing microscopic and latent brain injury, which can cause an early onset of Alzheimer's Disease, ALS, dementia, depression, deficits in cognitive functioning, reduced processing speed, attention, and reasoning, loss of memory, sleeplessness, mood swings, personality changes, and chronic traumatic encephalopathy. [ Id. ¶ ¶ 39, 40.] This information, they assert, has been widely and publicly available since the 1980s, within research groups, universities, and other organizations who published their findings on concussions and head impacts between the 1980s and the 2000s. [ Id . ¶ ¶ 56-76.] During the early 1990s, the sports-medicine community developed " return-to-play criteria for football players suspected of having

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sustained head injuries." [ Id. ¶ 61.] In 1996, the National Collegiate Athletic Association (" NCAA" ) also studied concussions, including through its Sports Science Safety Subcommittee on Competitive Safeguards and Medical Aspects of Sports, having recognized that " the football helmet would not prevent concussions." [ Id. ¶ 63.]

In 1969, stakeholders in helmet safety -- including " manufacturers, reconditioners, athletic trainers, coaches, equipment managers, sports medicine doctors, and consumer organizations" -- formed the National Operating Committee on Standards for Athletic Equipment (NOCSAE). [ Id. ¶ ¶ 83-85.] DuRocher and Harris explain: " The goal of NOCSAE has been to improve athletic equipment, and to reduce injuries through creating standards for athletic equipment." [ Id. ¶ 84.] NOCSAE's efforts include " the development of performance standards for football helmets as well as research to better understand the mechanism and tolerance of head and neck injuries and the design and structure of football helmets." [ Id.]

Since 1973, NOCSAE has issued football-helmet safety standards " that have been developed to reduce head injuries by establishing requirements for impact attenuation for football helmets and face masks and have been adopted by various regulatory bodies for sports, including the NCAA." [ Id. ¶ 86.] DuRocher and Harris acknowledge that a helmet certified to the NOCSAE standard provides " a substantial level of protection for serious head injuries, including concussions," and that no helmet -- not even one that meets or exceeds the NOCSAE standard -- can prevent all concussions. [ Id. ¶ 90.]

For decades, Riddell has designed, manufactured, and sold football helmets, including selling helmets directly " to colleges and universities around the United States." [ Id. ¶ ¶ 2, 121.] Since the 1940s, Riddell has introduced numerous advancements in football-helmet design, including air inflation to fit the helmet snugly, padding that uses foam and liquid-filled cells to absorb impact forces, and an " air-fitted liner system." [ Id. ¶ 121.] These advancements are in addition to several different design iterations and other safety technologies that were available when DuRocher and Harris played college football. [ Id. ¶ 121(h)-(j).]

Before 2001, Riddell provided warnings on its helmets that read:

Do not use this helmet to butt, ram or spear an opposing player. This is in violation of the football rules and such use can result in severe head or neck injuries, paralysis or death to you and possible injury to your opponent. No helmet can prevent all head or neck injuries a player might receive while playing football.

[ Id. ¶ 126.] Beginning in 2002, Riddell introduced a revised warning, to which DuRocher and Harris specifically refer (and thereby incorporate into the SAC by reference)[1], which reads as follows:

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(Image Omitted)

[ See id. ¶ 127; see also Decl. of P. Cereghini ¶ 2, Ex. 1.]

In addition to the 2002 warning, DuRocher and Harris describe different efforts at different times by Riddell and others to increase concussion awareness, such as Riddell's partnering in 2012 with USA Football, which included for the first time providing with each helmet " a hangtag offering concussion education that includes information from the Centers for Disease Control and Prevention Heads Up program." [ Id. ¶ 130.]

Plaintiffs allege Defendants failed to warn Plaintiffs and other players that their helmets did not protect against the risks of latent long-term brain injury from repeated head impacts. [ Id. ¶ 118.] Plaintiffs also allege that Defendants marketed their products in a way that misled " athletes, parents and coaches into a dangerous false sense of protection." [ Id. ¶ 114.] According to Plaintiffs, " [a] helmet certified to the standards of the NOCSAE does provide a substantial level of protection for serious head injuries, including concussions, but the NOCSAE concedes that its helmet standard is not a concussion standard, and no helmet can prevent all concussions, even those certified to the NOCSAE standard." [ Id. at 90.]

C. Plaintiffs' SAC.

On October 1, 2013, Plaintiffs filed their original Complaint [Dkt. No. 1] and have now amended it twice. [Dkt. Nos. 9, 71.] The operative complaint is the Second Amended Complaint filed on March 14, 2014, which sets out four claims against Defendants: medical monitoring, common-law negligence, and two strict liability claims, one for design defects and one for manufacturing defects. [Dkt. No. 71.]

III. Applicable Law and Standard.

A. Choice of Law.

We first address the issue of what law governs Plaintiffs' claims. Defendants argue that Washington state law applies based on Indiana's lex loci delicti (the place of the wrong) rule for determining choice of law. [Dkt. No. 77 at 9-11.] Lex

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loci delicti requires the court to apply the substantive law of the state where the last event necessary to make the defendant potentially liable took place. Klein v. DePuy, Inc., 506 F.3d 553, 555 (7th Cir. 2007). Plaintiffs' alleged injuries occurred in the state of Washington and a reasonable relationship exists between Plaintiffs' claims and the state of Washington. See Harter v. Iowa Grain Co., 220 F.3d 544, 559 n.13 (7th Cir. 2000). Plaintiffs do not directly respond to Defendants' choice of law analysis, but rely on various Washington statutes and laws in support of their claims. We hold that the substantive law of the State of Washington is applicable here.

B. Motion to Dismiss Standard.

The Federal Rules of Civil Procedure authorize dismissal of claims for " failure to state a claim upon which relief may be granted." Fed.R.Civ.P. 12(b)(6). In determining the sufficiency of a claim, the court considers all allegations in the complaint to be true and draws such reasonable inferences as required in the plaintiff's favor. Jacobs, 215 F.3d at 765. Federal Rule of Civil Procedure 8(a) applies, with several enumerated exceptions, to all civil claims, and it establishes a liberal pleading regime in which a plaintiff must provide only a " short and plain statement of the claim showing that [he] is entitled to relief," Fed.R.Civ.P. 8(a)(2); this reflects the modern policy judgment that claims should be " determined on their merits rather than through missteps in pleading." E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 779 (7th Cir. 2007) (citing 2 James W. Moore, et al., Moore's Federal Practice § 8.04 (3d ed. 2006)). A pleading satisfies the core requirement of fairness to the defendant so long as it provides " enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests." Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008).

In its decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the United States Supreme Court introduced a more stringent formulation of the pleading requirements under Rule 8. In addition to providing fair notice to a defendant, the Court clarified that a complaint must contain " sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility requires more than labels and conclusions, and a " formulaic recitation of the elements of a cause of action will not do." Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). Instead, the factual allegations in the complaint " must be enough to raise a right to relief above the speculative level." Id. The plausibility of a complaint depends upon the context in which the allegations are situated, and turns on more than the pleadings' level of factual specificity; the same factually sparse pleading could be fantastic and unrealistic in one setting and entirely plausible in another. See In re Pressure Sensitive Labelstock Antitrust Litig., 566 F.Supp.2d 363, 370 (M.D. Pa. 2008). " [A]t some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8." Airborne Beepers & Video, Inc. v. AT& T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007). Although Twombly and Iqbal represent a new gloss on the standards governing the sufficiency of pleadings, they do not overturn the fundamental principle of liberality embodied in Rule 8. As this Court has noted, " notice pleading is still all that is required, and 'a plaintiff still must provide

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only enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests, and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief.'" United States v. City of Evansville, No. 3:09-cv-128-WTL-WGH, 2011 WL 52467, at *1 (S.D. Ind. Jan. 8, 2011) (quoting Tamayo, 526 F.3d at 1083). On a motion to dismiss, " the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint." Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994). " Courts view motions to dismiss for failure to state a claim with disfavor because such motions undermine the policy of deciding causes of action on their merits." Biomet, Inc. Health Ben. Plan v. Black, 51 F.Supp.2d 942, 945 (N.D. Ind. 1999) (citing Action Repair, Inc. v. American Broad. Co., Inc., 776 F.2d 143 (7th Cir. 1985)).

IV. Plaintiffs' Claims.

A. Medical Monitoring -- First Claim for Relief.

Plaintiffs' First Claim for Relief seeks an injunction requiring Defendants, among other things, to establish a medical monitoring program financed by a trust fund established to pay for medical monitoring of all past and current college football players who wore, during a game, helmets manufactured by Defendants. [SAC ¶ ¶ 164-74.] Defendants move to dismiss this claim because " Washington does not and 'has never recognized a standalone claim for medical monitoring.'" [Dkt. No. 77 at 23 (citing Krottner v. Starbucks Corp., No. C09-0216-RAJ, 2009 WL 7382290, at *7 (W.D. Wash. Aug. 14, 2009) (citing Duncan v. Northwest Airlines, Inc., 203 F.R.D. 601, 606 (W.D. Wash. 2001) (" [T]here is no compelling reason for this Court to create, as urged by plaintiff, a new separate tort of medical monitoring." )).]

Plaintiffs provided no response to Defendants' request that we dismiss this claim for medical monitoring with prejudice. [ See generally Dkt. No. 83.] Plaintiffs do note that " Washington allows for medical monitoring as a remedy to a negligence claim" [Dkt. No. 101 at 7], implicitly acknowledging that no standalone medical monitoring claim exists as such under Washington law. Plaintiffs are deemed to have waived their claim when they fail to present legal arguments in response to defendant's motion to dismiss. Lekas v. Briley, 405 F.3d 602, 614-15 (7th Cir. 2005) (" 'Our system of justice is adversarial and our judges are busy people. If they are given plausible reasons for dismissing a complaint, they are not going to do the plaintiff's research and try to discover whether there might be something to say against the defendants' reasoning.'" ). Because the State of Washington does not recognize a standalone claim for medical monitoring[2] and Plaintiffs have offered no objection to Riddle's Motion, we GRANT Defendants' Motion to Dismiss with respect to Plaintiffs' First Claim for Relief: Medical Monitoring WITH PREJUDICE.

B. Washington Common-Law Negligence Claim -- Second Claim for Relief.

Defendants argue that Washington's Product Liability Act (WPLA) provides a " unified approach" that allows " only a single

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product liability cause of action," preempting common law claims for injuries caused by allegedly harmful products, even if the claim is couched as a negligence claim. Manjares v. Taser Int'l, Inc., No. CV-12-3086-LRS, 2012 WL 5389688, at *3 (E.D. Wash. Nov. 2, 2012) (citing Washington Water Power Co. v. Graybar Elec. Co., 112 Wn.2d 847, 774 P.2d 1199 (Wash. 1989); Crittenden v. Fibreboard Corp., 58 Wn.App. 649, 794 P.2d 554 (Wash. 1990)). The WPLA defines a product liability claim as:

any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product. It includes, but is not limited to, any claim or action previously based on: Strict liability in tort; negligence ; breach of express or implied warranty; breach of, or failure to, discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation, concealment, or nondisclosure, whether negligent or innocent; or other claim or action previously based on any other substantive legal theory except fraud, intentionally caused harm or a claim or action under the consumer protection act, chapter 19.86 RCW.

Wash. Rev. Code § 7.72.010(4) (emphasis added). Washington courts have held that " [t]he Washington product liability act (RCW 7.72) created a single cause of action for product-related harms, and supplants previously existing common law remedies, including common law actions for negligence." See Washington State Physicians Ins. ...

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