United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S PARTIAL MOTION TO DISMISS
EVANS BARKER, JUDGE
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.
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.
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.
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).
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.
Standard of Review
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
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.
Breach of Warranty Claims- (Counts II and
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.
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 ...