The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:
Tuesday, 20 December, 2011 02:09:36 PM
Clerk, U.S. District Court, ILCD
This matter comes before the Court on Plaintiffs Chester and Catherine Ann Janus' Motion for Leave to File Amended Complaint (d/e 9) (Motion).*fn1 The Plaintiffs bring claims against Defendants Wright Medical Technology, Inc., and Wright Medical Group, Inc. (collectively Wright Medical) for injuries arising from an allegedly defective hip replacement medical device implanted into Chester Janus. Notice of Removal, Exhibit A, Tazewell County, Illinois Circuit Court Pleadings, at 26 Complaint at Law.*fn2 The Plaintiffs seek to file an Amended Complaint alleging ten claims by Chester Janus and one claim for loss of consortium by Catherine Ann Janus. Motion, Exhibit A, Amended Complaint and Jury Demand (Amended Complaint). Wright Medical opposes the Motion because it argues that filing several of the claims would be futile. For reasons set forth below, the Motion is ALLOWED in part and DENIED in part. The Court also gives the Plaintiffs leave to replead.
Leave to amend pleadings is to be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). The Court may deny leave to file an amendment to a complaint when the amendment would be futile.
Foman v. Davis, 371 U.S. 178, 182 (1962). Wright Medical argues that filing the proposed Amended Complaint would be futile because several counts would fail to state a claim. In considering such an objection, the test is whether the proposed Amended Complaint states a claim under Federal Rule of Civil Procedure 12(b)(6). See Smart v. Local 702 International Brotherhood of Electrical Workers, 562 F.3d 798, 811 n.15 (7th Cir. 2009).
Rule 12(b)(6) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," and allegations must be "simple, concise, and direct." Fed. R. Civ. P. 8(a)(2) & (d)(1). The Court must accept as true all well-pleaded factual allegations and draw all inferences in the light most favorable to pleader. Hager v. City of West Peoria, 84 F.3d 865, 868-69 (7th Cir. 1996); Covington Court, Ltd. v. Village of Oak Brook, 77 F.3d 177, 178 (7th Cir. 1996). While a complaint need not contain detailed, specific factual allegations, it must contain sufficient facts to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible if 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 (2009). A claim is plausible on its face if it provides the defendant fair notice of what the claim is and the grounds upon which it rests. George v. Smith, 507 F.3d 605, 608 (7th Cir. 2007). Dismissal under Rule 12(b)(6) is appropriate when "the factual detail in a complaint [is] 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).
In analyzing a complaint under Rule 12(b)(6), the Court does not consider matters outside the pleadings. See Rule 12(d). The Court, therefore, excludes from consideration the material outside the Amended Complaint that have been submitted by the parties.
The proposed Amended Complaint alleges that Wright Medical designed, manufactured, imported and distributed the Wright Medical Profemur Hip System (System). The System is a permanent medical device designed to be implanted into a person as a hip replacement. The System was implanted into Plaintiff Chester Janus on his right side as a hip replacement on November 3, 2003. The Plaintiffs allege the System implanted into Chester Janus's right side catastrophically failed while being used in a normal and expected manner. A portion of the System identified as a modular neck fractured while in normal use. The Plaintiffs allege that Chester Janus had the defective System surgically removed on November 17, 2008.
The Plaintiffs allege that the System implanted into Chester Janus was in the same condition in all relevant respects when it left Wright Medical's control. The Plaintiffs allege that the System was unreasonably dangerous for its intended and/or reasonably foreseeable uses. The Plaintiffs allege that the modular necks in the System were known by Wright Medical to fail from fatigue fractures prior to the date the System was implanted into Chester Janus, and Wright Medical did not warn patients or surgeons of these known failures at the time. Amended Complaint ¶¶ 23(A)(10) and (11) and 23(B)(6) and (7). The Plaintiffs further allege that Wright Medical violated federal statutes and regulations governing the manufacture and distribution of medical devices such as the System, specifically 21 U.S.C. § 351 and 360j, and 21 C.F.R. §§ 820.1, 820.22, 820.30, 820.70, 820.75, and 820.90. Amended Complaint ¶¶ 36-68. The Plaintiffs allege that Wright Medical misrepresented in its marketing, advertising, promotions and labeling that the System was safe and met all applicable design and manufacturing requirements. Id. ¶¶ 117-18.
Based on these allegations, the Plaintiff Chester Janus alleges
products liability claims for defective manufacturing (First Cause of
Action),design defect (Second Cause of Action), nonconformance with
representations (Third Cause of Action), and failure to warn and
instruct (Fourth Cause of Action); negligence (Fifth Cause of Action);
breach of express warranty (Sixth Cause of Action); breach of implied
warranty (Seventh Cause of Action); negligent misrepresentation
(Eighth Cause of Action); negligence per se (Ninth Cause of Action);
and punitive damages for fraud, malice or willful and wanton conduct
(Eleventh Cause of Action). Plaintiff Catherine Ann Janus alleges a
claim for loss of consortium (Twelfth Cause of Action).*fn3
Wright Medical argues that filing the proposed Amended
Complaint would be futile because the Third, Eighth, Ninth, ...