Jarrett v. Wright Medical Technology, Inc.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S PARTIAL MOTION TO DISMISS

          SARAH EVANS BARKER, JUDGE

         This cause is before the Court on Defendant's Partial Motion to Dismiss and Motion to Strike Plaintiffs' Second Amended Complaint [Dkt. 34]. The motions were filed on October 15, 2018, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f) and are fully briefed. Plaintiff Coleman Jarrett filed this lawsuit against Defendant Wright Medical Technology, Inc. (“Wright Medical”) alleging six causes of action arising under Indiana law: the Indiana Products Liability Act (Count I), breach of express warranty (Count II), breach of implied warranty of merchantability (Count III), fraud (Count IV), and common law punitive damages (Count VI). Plaintiff Paula Jarrett, Mr. Jarrett's wife, alleges a claim for loss of consortium (Count V). We have jurisdiction under diversity of citizenship. For the reasons detailed below, we GRANT IN PART and DENY IN PART Defendant's Partial Motion to Dismiss and Motion to Strike.

         Factual Background

         Wright Medical is a company incorporated in Delaware with its principal place of business in Arlington, Tennessee. Plaintiffs Coleman and Paula Jarrett are both citizens and residents of the State of Indiana. Wright Medical “design[s], manufacture[s], market[s], distribute[s] and s[ells]” hip replacements. Sec. Am. Compl. ¶ 13. Mr. Jarrett's doctor (who is not a party to this dispute) implanted Wright Medical's Conserve Hip Implant System (“Conserve”) into Mr. Jarrett's hip on July 17, 2006, in Indianapolis, Indiana. Id. Conserve is a “metal-on-metal hip-replacement product.” Id. ¶ 10. Wright Medical produced and sold the Conserve hip implant that Mr. Jarrett received. Id. ¶ 13.

         Mr. Jarrett alleges that nearly four years after his hip replacement (June 29, 2010) he began to experience pain in his hip. Id. ¶ 24. In July of 2010, in seeking an explanation for the pain he was experiencing, “learned that his left hip [had] failed due to a gross loosening of the Conserve Cup component and a metal reaction.” Id. ¶ 25. During Mr. Jarrett's surgery to remove and replace the Conserve Cup his doctor reportedly had noticed that “metal ions [had been] released from the Conserve.” Id. Since the failure of the implant, Mr. Jarrett has “endured a painful recovery . . . and continues to suffer from injuries of a permanent and lasting nature and discomfort . . . .” Id. ¶ 26.

         Mr. Jarrett's legal claims include the assertion that Wright Medical “marketed to patients with hip problems that, after being implanted with the Conserve Hip Systems, they could engage in and/or return to a normal, active lifestyle . . . .” Id. ¶ 19. However, according to Mr. Jarrett, Wright Medical, “[p]rior to, on, and after July 17, 2006, . . .knew that the Conserve . . . was defective and harmful to patients and that its components had an unacceptable failure and complication rate.” Id. ¶ 23. Mr. Jarrett contends that his doctor recommended the Conserve to him based on Wright Medical's affirmations to the doctor “that there were no known issues/ minimal issues” with the Conserve. Id. ¶ 20. Moreover, Wright Medical “fail[ed] to warn doctors and patients that the Conserve was defective in that the metal on metal design increased the risk of early failure and revision surgery over conventional hip replacement designs.” Id. ¶ 34(d).

         On January 17, 2012, Mr. Jarrett filed his complaint in this action, which he amended on October 1, 2018. In the motions currently before us, Wright Medical seeks dismissal of Counts II- VI and an order striking the request for attorney fees and prejudgment interest.

         Legal Analysis

         I. Standard of Review

         Defendant's motion to dismiss is based on Federal Rule of Civil Procedure 12(b)(6). Under that rule, the Court accepts as true all well-pled factual allegations in the complaint and draws all ensuing inferences in favor of the non-movant. Lake v. Neal, 585 F.3d 1059, 1060 (7th Cir. 2009). Nevertheless, the complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests, ” and its “[f]actual allegations must . . . raise a right to relief above the speculative level.” Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (citations omitted). The complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Fed.R.Civ.P. 8(a)(2). Stated otherwise, a facially plausible complaint is one which permits “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Defendant's Motion to Strike is based on Federal Rule of Civil Procedure 12(f), which provides that a court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Allegations subject to being stricken are those that “bear . . . no possible relation to the controversy or may cause the objecting party prejudice.” Evansville Greenway & Remediation Tr. v. S. Ind. Gas & Elec. Co., No. 3:07-cv-66-SEB-WGH, 2010 WL 11569546, at *3 (S.D. Ind. Aug. 27, 2010) (quoting Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664 (7th Cir. 1992)). Whether to strike material pursuant to Rule 12(f), is an issue vested in the Court's discretion. Id. at *3.

         II. Discussion

         A. Breach of Warranty Claims- (Counts II and III)

         Wright Medical seeks dismissal of Mr. Jarrett's breach of express warranty (Count II) and implied warranty of merchantability (Count III) claims, arguing that they cannot be pursued as separate claims because they are subsumed within the Indiana Products Liability Act (Count I). Br. Supp. at 4.

         An express warranty is “any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain . . . .” IND. CODE ANN. § 26-1-2-313(1)(a) (West, Westlaw through 2019 Legis. Sess.). “[A] warranty that the goods shall be merchantable is implied in a contract for their sale ...