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Kmak v. Sorin Group Deutschland GmbH

United States District Court, N.D. Illinois, Eastern Division

December 12, 2017

SUSAUN KMAK, as independent administrator of the estate of MICHAEL KMAK, deceased, Plaintiff,



         Plaintiff Susaun Kmak (“Plaintiff”) brings this action against Defendants Sorin Group Deutschland GmbH, now known as LivaNova Deutschland GmbH (“LivaNova Deutschland”), and Sorin Group USA, Inc., now known as LivaNova Holding USA, Inc. (“LivaNova USA,” and collectively with LivaNova Deutschland, “Defendants” or “LivaNova”), as the independent administrator of her deceased husband Michael Kmak’s (“Kmak”) estate. (R. 1.) Plaintiff alleges multiple counts against Defendants for damages resulting from Defendants’ Sorin 3T Heater-Cooler System (“3T System”) used in Kmak’s 2015 open heart surgery. (Id.)

         Before the Court is Defendants’ motion to dismiss Counts I through VII of Plaintiff’s nine-count Complaint.[2] (R. 12.) For the following reasons, the Court grants in part with prejudice and grants in part without prejudice Defendants’ motion to dismiss.


         According to Plaintiff,[3] Decedent Kmak underwent open heart surgery, specifically “coronary artery bypass graft surgery with aortic valve replacement,” at the University of Chicago Medical Center in Chicago, Illinois, on June 25, 2015. (R. 1 at ¶ 1, 36.) Defendants’ 3T System was purportedly used to assist in the heating and cooling of Kmak’s blood during the procedure. (Id.) Plaintiff alleges that the medical device exposed Kmak to non-tuberculosis Mycobacteria and thus contributed to or caused his deteriorating condition after the surgery. (Id. at ¶ 1, 14, 20, 34, 37.) Kmak passed away at Franciscan St. Anthony Hospital in Michigan City, Indiana, on July 18, 2016. (Id. at ¶ 41.)

         LivaNova marketed and sold the 3T System for use during certain surgeries in operating rooms in the United States. (R. 11 at ¶ 9, 10.) Further, a Food and Drug Administration (“FDA”) “510(k) Premarket Notification was submitted for the 3T System, the 3T System is a Class II device, and its Intended Use is ‘to provide temperature controlled water to heat exchanger devices (cardiopulmonary bypass heat exchangers, cardioplegia heat exchangers, and thermal regulating blankets) to warm or cool a patient during cardiopulmonary bypass procedures lasting six (6) hours or less.’ ” (Id. at ¶ 11.)

         The FDA posted a Class II Device Recall of the 3T System on or about July 15, 2015 that lists the “Manufacturer[‘s] Reason for Recall” as “[p]otential colonization of organisms, including Mycobacteria, in Sorin Heater Cooler Devices, if proper disinfection and maintenance is not performed per Instructions for Use.” (R. 11 at ¶ 20; R. 1-1 at 8-10.) Further, the FDA issued a Warning Letter to Defendants on or about December 29, 2015 regarding inspections conducted at LivaNova’s facilities in the United States and Germany. (R. 11 at ¶ 24; R. 1-1 at 24-30.) “These inspections revealed that your firm’s devices are adulterated within the meaning of section 501(h) of the Act, 21 U.S.C. § 351(h), in that the methods used in, or the facilities or controls used for, their manufacture, packing, storage, or installation are not in conformity with the current good manufacturing practice requirements of the Quality System regulation found at Title 21, Code of Federal Regulations (CFR), Part 820.” (R. 1-1 at 24.) The FDA noted several other violations in the warning letter. (Id. at 24-30.)

         The University of Chicago Medical Center sent a letter to Plaintiff and/or Kmak on October 19, 2016 regarding the potential infection risk associated with the use of the 3T System in Kmak’s cardiac surgery. (R. 1 at ¶ 14; R. 1-1 at 1.) Plaintiff does not otherwise describe or make factual allegations concerning LivaNova’s promotional materials, statements or activities.

         Plaintiff filed this lawsuit on June 26, 2017, as the administrator of decedent Kmak’s estate. (R. 1.) Plaintiff alleges nine Counts against Defendants in her Complaint: Count I, negligence; Count II, strict product liability; Count III, breach of express warranty; Count IV, breach of implied warranty; Count V, negligent misrepresentation; Count VI, misrepresentation by omission; Count VII, violation of the Illinois Consumer Fraud and Deceptive Business Practice Act (the “ICFA”); Count VIII, under the Illinois Wrongful Death Act (“Wrongful Death Act”); and Count IX, under the Illinois Survival Act (“Survival Act”). (R. 1 at 10-19.) Plaintiff seeks actual damages, but no punitive damages. (Id. at 19.) Before the Court is the Defendants’ motion to dismiss Counts I through VII of Plaintiff’s Complaint. (R. 12.)


         “A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014) (referencing Fed. R. Civ. P. 12(b)(6)); see also Hill v. Serv. Emp. Int’l Union, 850 F.3d 861, 863 (7th Cir. 2017). Under Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). A plaintiff’s “factual allegations must be enough to raise a right to relief above the speculative level.” Id. Put differently, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

         When determining the sufficiency of a complaint under the plausibility standard, courts must “accept all well-pleaded facts as true and draw reasonable inferences in the plaintiffs’ favor.” Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016); Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013). However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; see also Thulin v. Shopko Stores Operating Co., LLC, 771 F.3d 994, 997 (7th Cir. 2014). “[A] plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions.” Camasta, 761 F.3d 732 at 739 (citing Twombly, 550 U.S. at 555).

         Beyond the requirements of Rules 12(b)(6) and 8(a)(2), Rule 9(b)[4] requires all allegations of fraud or mistake to be “stated with particularity.” Borsellino v. Goldman Sachs Gro., Inc., 477 F.3d 502, 507 (7th Cir. 2007) (citing Fed. R. Civ. P. 9(b)). Specifically, Rule 9(b) requires a party to describe the “who, what, when, where, and how of the fraud.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 948 (7th Cir. 2013); see AnchorBank, FSB v. Hofer, 649 F.3d 610, 615 (7th Cir. 2011). The particularity and specificity requirements of Rule 9(b) “force the plaintiff to do more than the usual investigation before filing his complaint.” Ackerman v. Northwestern Mutual Life Ins. Co., 172 F.3d 467, 469 (7th Cir. 1999). Instead, “the rule requires the plaintiff to conduct a pre[-]complaint investigation in sufficient depth to assure that the charge of fraud is responsible and supported, rather than defamatory and extortionate.” Camasta, 761 F.3d at 738 (citing Ackerman, 172 F.3d at 469–70).


         Defendants move to dismiss Counts I through VII of Plaintiff’s Complaint pursuant to Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6). (R. 12, 13.) The Court reviews in turn (I) Count I for negligence and Count II for strict product liability; (II) Count III for breach of express warranty; (III) Count IV for breach of implied warranty; (IV) Count V for negligent misrepresentation and Count VI for misrepresentation by omission; and (V) Count VII for violation of the Illinois Consumer Fraud and Deceptive Business Practice Act. The parties do not dispute that Illinois law governs the substance of their claims.

         I. Counts I and II: Negligence and Strict Product Liability

         Defendants move to dismiss Counts I and II on the ground that an independent administrator of a decedent’s estate does not have an independent cause of action for negligence or strict liability. (R. 13 at 3-6.) Defendants argue that Plaintiff may only bring those claims under the Wrongful Death Act or the Survival Act (Counts VIII and IX, respectively), and therefore that Counts I and II are duplicative of Counts VIII and IX. (Id.)

         Plaintiff argues that she “is pleading the negligence and strict liability counts in the alternative, as well as using the Wrongful Death and Survival causes of action as avenues for which [sic] to pursue claims after the decedent’s death.” (R. 20 at 3.) Plaintiff maintains that her Complaint adequately pleads Counts I and II through the Wrongful Death Act and the Survival Act. (Id. at 4.) She further urges the Court not to dismiss these counts “on pure technicalities as the rules are designed to ensure that claims are determined on the merits.” (Id.)

         Although many actions at common law were neither assignable nor survived the death of a claimant, modern statutes have changed this area of law and provide that certain actions survive the death of a claimant and pass to the claimant’s estate. See, Kleinwort Benson N. Am., Inc. v. Quantum Fin. Servs., Inc., 692 N.E.2d 269, 272 (1998) (“In turn, the personal representatives of a decedent were essentially perceived as assignees of the decedent’s property.”); N. Chicago St. R. Co. v. Ackley, 49 N.E. 222, 224 (Ill. 1897) (“By the common law, actions arising out of torts did not in general survive.”) The parties do not dispute that the negligence and strict product liability causes of action would abate upon death were it not for a statutory provision holding otherwise.

         Through the Survival Act, Illinois law allows negligence and strict product liability claims to survive death. The statute specifically provides that “actions to recover damages for an injury to the person” survive. 755 Ill. Comp. Stat. 5/27-6. “The Survival Act does not create a statutory cause of action. It merely allows a representative of the decedent to maintain those statutory or common law actions which had already accrued to the decedent before he died.” Advincula v. United Blood Servs., 678 N.E.2d 1009, 1029 (Ill. 1996) (citing Wyness v. Armstrong World Indus., Inc., 546 N.E.2d 568 (Ill. 1989); Nat’l Bank of Bloomington v. Norfolk & Western Ry. Co., 383 N.E.2d 919 (Ill. 1978)). “As such, a Survival Act claim is a derivative action based on injury to the decedent, but brought by the representative of a deceased’s estate in that capacity.” Id. In other words, the Survival Claim ...

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