Daley v. Smith & Nephew Inc.
Daley v. Smith & Nephew Inc.
Opinion of the Court
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"),
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 ,
For motions to dismiss brought pursuant to the BAAA, Congress has provided special protocols. See
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).
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
Plaintiffs first argue that the BAAA does not preempt their claims *895against DiSanto because the Act does not protect the types of devices at issue here. Plaintiffs distinguish between devices that have received pre-market approval ("PMA") from the Food and Drug Administration and devices that have been authorized for sale under the "Section 510(k)" procedure. The M-COR falls within the latter category. Plaintiffs believe that the BAAA's protection extends only to claims involving PMA devices because only the rigorous PMA process results in meaningful assurances of device safety. No such distinction can be found in the statutory text, and Plaintiffs cannot engraft ambiguity into the statute where none exists.
Plaintiffs' premise is correct: the PMA process is far more meticulous as a safety assessment than the Section 510(k) process. Medtronic v. Lohr ,
Devices that fall under this exception to the PMA rule can get to market if they comply with the less onerous appraisal set forth in
While Plaintiffs' premise is correct, their conclusion concerning the reach of the BAAA is not. The Act draws no distinction between PMA and Section 510(k) devices. By its text, the BAAA 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."
Though the statute does not distinguish between the types of review imposed on implants, Plaintiffs nevertheless maintain that Congress could not have intended to preempt claims involving Section 510(k) devices because those devices do not have the same federal safety oversight that PMA devices do. Plaintiffs cite Congress' introductory findings in the BAAA, which include that "under the Federal Food, Drug, and Cosmetic Act (
Whether or not this is a reasonable view as a matter of policy, the Supreme Court directs that a clear statutory text must be enforced as-is. Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist. ,
The answer afforded by the BAAA is unmistakable: no claim can proceed against a supplier of a component part for an "implant," a term which the statute defines very broadly without reference to the type of FDA review the implant receives. For that reason, Plaintiffs' reliance on Lohr and Riegel is misplaced. Lohr ,
Additionally, in Lohr and Riegel the Court engaged in several interpretive maneuvers not available here, including applying a presumption against preemption and consulting Congress' intentions as reflected in the legislative history. See Lohr ,
Ultimately, Plaintiffs' argument rests on the supposition that Congress sought but failed to distinguish between PMA and Section 510(k) devices in the BAAA. Standing alone, this is a specious claim, for it is unlikely that any regulator could miss the prevalence of Section 510(k) devices in the marketplace. See Lohr ,
2.2 DiSanto is a Biomaterials Supplier Protected by the BAAA
Having determined that the BAAA governs Plaintiffs' claims against DiSanto, the Court turns to the statutory inquiry as to whether those claims should be dismissed.
First, DiSanto qualifies as a biomaterials supplier, which is "an entity that directly or indirectly supplies a component part or raw material for use in the manufacture of an implant."
The affidavits submitted by DiSanto establish that it is a contract manufacturer whose sole role with respect to the hip implants in this case was to machine a piece of metal pursuant to contractual specifications that eventually became a component of an implant. DiSanto used a piece of titanium, as specified by MiPro, as the base material to machine the femoral neck of the M-COR. Titanium has many *898uses other than medical device manufacturing. DiSanto thus transformed raw material into a component part of the M-COR. The femoral necks machined by DiSanto were not completed medical devices and could not be implanted into a human being without additional components and numerous other manufacturing steps and quality checks, which for the M-COR were performed by others, not DiSanto. DiSanto therefore claims that it qualifies as a biomaterials supplier as defined in the BAAA.
Plaintiffs disagree. They contend that DiSanto incorporated many of its own design inputs into the femoral necks it produced. Plaintiffs theorize that the BAAA does not insulate component "designers" as opposed to component "manufacturers" who simply follow design specifications, particularly when, as here, Plaintiffs allege that those "poor design decisions" contributed to the failure of the M-COR as a whole. (Docket # 54 at 9-10). Specifically, Plaintiffs' expert opines that DiSanto's design was flawed in three ways: (1) it used rolled plate instead of bar stock; (2) it used a wire EDM machine instead of forging or casting; and (3) it oriented the plate material incorrectly relative to the grain. See (Docket # 57 at 4-7). According to Plaintiffs, these defects caused the femoral necks to break, requiring total hip revisions to replace the failed implants. (Docket # 55 at 12-13).
Plaintiffs' proposed distinction is of their own invention and is unsupported by any legal authority. What's more, it is inconsistent with the BAAA's statutory scheme, which carefully catalogs the players in implant production, including device manufacturers, device sellers, and component or raw materials suppliers. Even if DiSanto participated in the design of its femoral necks, a component designer is not a category recognized in the BAAA. Yet, tellingly, the Act does provide that manufacturers of the final implant are not immune from suit. In enacting this scheme, Congress apparently sought to insulate component suppliers and place all the risk on device manufacturers for the failure of the implant, whether caused by a flaw in the entire implant or one of its component parts. In this case, if MiPro is held liable for the harm Plaintiffs suffered and it believes DiSanto is responsible for indemnity or contribution, it can seek such relief. Plaintiffs desire a direct route to DiSanto's pocketbook, but Congress has forbidden this.
Additionally, Plaintiffs' designer-manufacturer division is not realistic. Of course an implant manufacturer like MiPro would expect a component supplier like DiSanto to apply some of its own metallurgical or machining expertise to its assigned task. Why else hire a specialized supplier? Given its lack of skill in this particular realm, MiPro could not be expected to dictate each and every action DiSanto was to take in creating the femoral necks. Again, the BAAA forces MiPro to shoulder the risk that DiSanto might make a mistake in producing a component of the M-COR. As a result, the Court finds that DiSanto is a biomaterials supplier under the BAAA despite the design inputs it may have provided in machining the femoral necks.
The final inquiry the Court must undertake is whether DiSanto falls outside the BAAA's protection because it was a manufacturer or a seller of the failed implant, or because its femoral necks failed to meet applicable contractual requirements or specifications.
In this connection, Plaintiffs cite an international quality standard, ISO 13485:2003, Medical Devices-Quality Management Systems-Requirements for Regulatory Purposes. This standard was incorporated by reference into MiPro's specification. According to Plaintiffs, it required DiSanto to, among other things, obtain "design and development validation" to ensure that the femoral necks were "capable of meeting the requirements for the specified application or intended use." (Docket # 56-3 at 19). Plaintiffs argument goes as follows:
Obviously, the necks were not capable of meeting the requirements of their intended use in the case of Daley and Heal. DiSanto chose, without apparent input or approval from MiPro, the type of raw material stock and the manufacturing process without apparently validating those decision [sic]. Those acts constituted a breach of the Specification MiPro provided to DiSanto and are proximate causes of the injuries sustained by Daley and Heal in this case.
(Docket # 54 at 11).
There are two strands of argument within this passage, but neither has merit. First, to the extent Plaintiffs contend that DiSanto was not authorized to make unilateral design decisions, and therefore any design input by DiSanto constituted a violation of MiPro's specification, the evidence flatly contradicts this position. The specification DiSanto received from MiPro was not exacting in its detail. It left room for DiSanto to incorporate design decisions that would achieve the goals MiPro set. See (Docket # 58 at 10). Plaintiffs' own expert concedes this; indeed, his theory is not that DiSanto deviated from MiPro's specification, but that DiSanto made negligent decisions about the design elements left to its discretion. See (Docket # 57 at 4-7). As explained above, the BAAA does not remove component suppliers from its protection even when they make design decisions that allegedly contributed to harm the patient. And, certainly, ISO 13485 says nothing about whether DiSanto should have made its own design decisions, only that design validation needed to be performed "in accordance with planned arrangements," whatever that means. (Docket # 56-3 at 19). Thus, the mere act of incorporating its own design input was not a deviation from specifications as contemplated in the BAAA.
Second, to the extent Plaintiffs believe that the femoral necks were not capable of meeting the requirements for their intended use, in violation of ISO 13485, simply because the implants failed, this too is incorrect. As an initial matter, the specific subsection of ISO 13485 Plaintiffs cite, Section 7.3.6, applies to designers of medical devices, not component manufacturers like DiSanto. See
Furthermore, the cited standard is, at best, an open-ended statement which could conceivably be violated by any defect whatsoever in the final product. Given that the purpose of the BAAA is to broadly shield component suppliers from liability in implant cases, see
For these reasons, the Court concludes that DiSanto is a biomaterials supplier whose conduct does not fall within any of the exceptions to the protection of the BAAA. This, in turn, requires that the Court dismiss the claims against it with prejudice.
3. CONCLUSION
For the reasons stated above, the Court is obliged to granted DiSanto's motion to dismiss the claims against it pursuant to the BAAA.
Accordingly,
IT IS ORDERED that Defendant DiSanto Technology Inc.'s motion to dismiss (Docket # 48) be and the same is hereby GRANTED ;
IT IS FURTHER ORDERED that Plaintiffs' motion to seal certain exhibits filed in connection with their response to DiSanto's motion (Docket # 53) be and the same is hereby GRANTED ;
IT IS FURTHER ORDERED that Plaintiffs' claims against Defendant DiSanto Technology Inc. be and the same are hereby DISMISSED with prejudice pursuant to
IT IS FURTHER ORDERED that Defendant DiSanto Technology Inc. be and the same is hereby DISMISSED from this action.
Plaintiffs responded to DiSanto's motion as though it was a motion for summary judgment, providing separately numbered paragraphs containing factual assertions and citations to evidence. See (Docket # 55, # 60). This was helpful to the Court in assessing the parties' respective positions, but it does not transform the motion into one for summary judgment since the BAAA authorizes the Court to consider competing affidavits on a motion to dismiss.
A supplier dismissed with prejudice under Section 1605(e) may nevertheless be rejoined later in the litigation if the evidence reveals a basis for contribution or indemnification.
In its motion, DiSanto concedes that it manufactured the femoral necks used in the implants for Plaintiffs Guy Daley and Sharon Heal. (Docket # 49 at 2). However, it asserts that it did not manufacture the femoral neck for Plaintiff Robert Nielsen's implant.
In passing, Plaintiffs cite Janusz v. Symmetry Medical Inc. ,
At the end of their brief, Plaintiffs make a request for additional discovery pursuant to Section 1605(c)(1)(B)(i), which allows a court to permit discovery on issues directly relevant to whether the biomaterials supplier met applicable contractual requirements or specifications.
Reference
- Full Case Name
- Guy D. DALEY, Starlynn Daley, Dana Heal, Sharon Heal, and Robert Nielsen, and Medicare, Wisconsin Pipe Trades Health Fund, United Health Care Continental, and WEA Trust, Involuntary v. SMITH & NEPHEW INC., Maxx Health Inc., Maxx Orthopedics Inc., MiPro US Inc., Plus Orthopaedics LLC, DiSanto Technology Inc., and John Doe Corporations 1-50
- Cited By
- 2 cases
- Status
- Published