Allen v. Wright Medical Technology, Inc.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION VERNON ALLEN and MELANIE ALLEN, ) ) Plaintiffs, ) ) v. ) Case No. 4:21-cv-01444-SEP ) WRIGHT MEDICAL TECHNOLOGY, INC. ) ) Defendant. MEM ORAND U )M AND ORDER Before the Court is Defendant Wright Medical Technology, Inc.’s Motion to Dismiss Counts II and V of Plaintiffs’ Complaint. Doc. 11. The Motion is fully briefed and ready for disposition. For the reasons set forFtAhC bTSe lAoNwD, BthAeC KMGoRtOioUnN Dis denied. Plaintiffs filed a Complaint in the Circuit Court for the City of St. Louis, Missouri, claiming that a surgically implanted artificial knee device designed, manufactured, distributed, and sold by Defendant, caused them injury. Doc. 4. Plaintiff Vernon Allen, in whose knee the device was implanted, alleges that the device injured him directly; Plaintiff Melanie Allen, Vernon’s spouse, brings a claim for loss of consortium. The Complaint sets forth six counts: Count I: negligence; Count II: strict products liability for manufacturing defect; Count III: strict products liability for design defect; Count IV: strict products liability for inadequate warning; Count V: negligent misrepresentation; Count IV: loss of consortium. Defendant removed the action to this Court on December 9, 2021. Doc. 1. Defendant filed this Motion on January 18, 2022, seeking to dismiss Counts II and V under Federal Rule st of Civil Procedure 12(b)(6). Doc. 11. On February 1 , Plaintiffs filed a motion to voluntarily dismiss Count II pursuant to Federal Rule of Civil Procedure 41(a)(1)(A). Doc. 13. The Court th granted Plaintiffs’ motion on February 7 . Doc. 18. Therefore, the only remaining issue is the sufficiency of Count V. LEGAL STANDARD The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is Neitzke v. Williams to test the legal sufficiency of a complaint. When considering a Rule 12(b)(6) motion, a court Braden v. Walassumes the factual allegations of a complaint are true, , 490 U.S. 319 , 3262M 7a r (t 1 S 9t 8o 9r )e ,s a, I nn dc . draws all reasonable inferences in the non-movant’s favor. , 588 F.3d 585, 595 (8th Cir. 2009) (citation omitted). The sufficiency of a complaint is ordinarily tested by the general pleading standard of Federal Rule of Civil Procedure 8, which provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” To survive a Ashcroft v. Iqbal motion to dismiss, the complaint must “contain sufficient factual matter, accepted as true, to Bell Atlantic Corp. v. Twombly, ‘state a claim to relief that is plausible on its face.’” , 556 U.S. 662, 678 (2009) (quoting 550 U.S. 544, 555 (2007)). “A pleading that offers Id. Twombly ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not Id. Twombly do.’” (quoting , 550 U.S. at 570 ). “Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” (quoting , 550 U.S. at 555 ). Iqbal, Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 556 U.S. at 678 . Streambend Properties II, LLC v. Ivy Tower All claims “grounded in fraud,” however, must meet the heightened pleading standard Minneapolis, LLC of Federal Rule of Civil Procedure 9(b). , 781 F.3d 1003, 1010 (8th Cir. 2015) (citations omitted). To satisfy Rule 9(b), “the complaint must plead such facts as the time, place, and content of the defendant’s U.S. ex rel. Joshi false representations, as well as the details of the defendant’s fraudulent acts, including when v. St. Luke’s Hosp., Inc. the acts occurred, who engaged in them, and what was obtained as a result.” , 441 F.3d 552, 556 (8th Cir. 2006) (citations omitted). In essence, the Ascente Bus. Consulting, LLC v. DR myCommerce plaintiff must plead the “who, what, where, when, and how” of the circumstances constituting fraud. , 9 F.4th 839,845 (8th Cir. 2021) (citations omitted). DISCUSSION In Count V Plaintiffs allege a claim for negligent misrepresentation. Doc. 4 ¶¶ 125-29. To plead a claim for negligent misrepresentation under Missouri law, Plaintiffs must allege (1)the speaker supplied in formation in the course of his business; (2) because of the speaker’s failure to exercise reasonable care, the information was false; (3) the information was intentionally provided by t he speaker for the guidance of limited persons in a particular business transaction; (4)the hearer justifiably relied on the information; and (5)due to the hearer’s reliance on the information, the hearer suffered a Renaissancep eLceuansiinagry, L lLoCss v. . Vermeer Mfg. Co. , 322 S.W.3d 112, 134 (Mo. banc 2010) (citation oI.m ittedR)u. le 9(b) does not apply to claims for negligent misrepresentation . See Defendant argues that Count V must be dismissed because it fails to satisfy the particularity requirement of Federal Rule of Civil Procedure 9(b). Doc. 12 at 5. There is conflicting precedent among federal courts as to whether Rule 9(b) applies to claims for negligent misrepresentation, but the Eighth Circuit does not require district courts to apply Rule 9(b) to such claims, and the trend in this District is to analyze claims for negligent Streambend Properties II, LLC v. Ivy Tower Minneapolis, LLC misrepresentation under the general pleading requirements of Rule 8(a). Defendant relies on , for Streambend Streambend the proposition that claims “grounded in fraud” must meet Rule 9(b). Doc. 12 at 15 (citing , 781 F.3d at 1010 ). But did not apply Rule 9(b) to negligent misrepresentations. 781 F.3d at 1011, 1013 . The Eighth Circuit noted that “[a]t least some id. N. Am. Catholic Educ. Programming Found., Inc. v. of our sister circuits also apply Rule 9(b) to ‘associated claims’” such as negligent Cardinale misrepresentation, at 1011 (quoting negligent misrepresentations , 567 F.3d 8 , 15 n.4 (1st Cir. 2009)), but the Court later explained that “if there are no specific averments of fraud, only allegations of innocent or Id. and omissions, then the sufficiency of th[e] claim is governed by the notice pleading standards of Rule 8(a).” at 1013 (emphasis added). Moreover, the Eighth Circuit had In re earlier held that “federal courts may not apply the heightened pleading standard of Rule 9(b) NationsMart Corp. Securities Litig. outside the two specific instances—fraud and mistake—explicitly found in the Rule.” , 130 F.3d 309, 315 (8th Cir. 1997). Instead, courts should Streambend NationsMart “look closely at the elements of the claims,” and determine whether the allegations are NationsMart “necessarily grounded in fraud.” , 781 F.3d at 1012 (quoting , 130 claims that did not contain an element of fraud but affirmed the dismissal of a claim that required proof of scienter. 130 F.3d at 314-16, 318-21 . As noted above, the elements of SeeRenaissance Leasing negligent misrepresentation under Missouri law do not require Plaintiffs to prove fraud or See Davis v. Eisai, scienter. , 322 S.W.3d at 134 . Inc. Webb v. Dr Pepper Snapple Grp., Inc. Defendant also relies on three cases from district courts in Missouri. In re Express Scripts, Inc., Pharmacy , 2021 WL 4810702 , at *1-2 (W.D. Mo. Oct. 14, 2021); , Benefits Mgmt. Litig. 2018 WL 1955422 , at *2 (W.D. Mo. Apr. 25, 2018); Camreta v. Greene , 2007 WL 1796224 , *13 (E.D. Mo. June 20, 2007). Although decisions of other district courts are not binding on this Court, , 563 U.S. 692 , 730 n.7 Davis (2011) (citation omitted), they may be persuasive authority. The Court is not persuaded by Defendant’s reliance on such cases in this instance, however. In , the district court Streambend applied Rule 9(b) to a negligent misrepresentation claim, relying on its own previous Davis Streambend practice and citing for the proposition that “claims ‘grounded in fraud’ must Webb meet” Rule 9(b). , 2021 WL 4810702 , at *1-2. As noted above, however, did not apply Rule 9(b) to a negligent misrepresentation claim. In , the district court Webb applied Rule 9(b) to both intentional and negligent misrepresentation claims, citing previous Khaliki v. Helzberg Diamond Shops, Inc. decisions from the Western District of Missouri and the District of Minnesota. , 2018 Great Lakes Transmission Ltd. P’ship v. Essar Steel Minnesota LLC WL 1955422, at *2-3 (citing , 2011 WL 1326660 , at *3 Express Scripts (W.D. Mo. Apr. 6, 2011); , 871 F. Supp. 2d 843, 859-60 (D. Minn. 2012)). In , the district court noted that plaintiffs did not dispute that Rule 9(b) applied to their negligent misrepresentation claim and then went on to analyze it under both Rule 9(b) and the ordinary Rule 8 standard. 2007 WL 1796224 , at n.7, *13-14. Moreover, Defendant’s examples of the application of Rule 9(b) cut against the See e.g. First prevailing trend in this District, which is to apply the general pleading requirements of Franklin Fin. Corp. v. Advantage Mortg. Consulting, Inc. Federal Rule of Civil Procedure 8(a) to negligent misrepresentation claims. , , , 2007 WL 4454292 , at *5 (E.D. Mo. Secure Energy, Inc. v. Coal Synthetics Dec. 14, 2007) (“The particularity requirements of Rule 9(b) do not apply to a claim of negligent misrepresentation.”) (citations omitted); , 2009 WL 10694916 , at *4 (E.D. Mo. June 8, 2009) (“Plaintiffs . . . are not required to plead a requirements of Rule 9(b) do not apply. Plaintiffs are only required to satisfy the pleading requirements of [Rule] 8(a)....”) (citing First Franklin, 2007 WL 4454292 , at *5); Giant Trading, Inc. v. Int'l Fuel Tech., Inc., 2010 WL 11706627 , at *2 n.4 (E.D. Mo. May 4, 2010) (same); Mounger Const, LLC v. Fibervision Cable Servs., LLC, 2012 WL 1745543 , at *3 (E.D. Mo. May 16, 2012) (noting that “Eighth Circuit case law states ‘that federal courts may not apply the heightened pleading standard of Rule 9(b) outside the two specific instances— fraud and mistake—explicitly found in the Rule,” and holding that the plaintiff's “negligent misrepresentation claim must comply only with Rule 8(a)’s general pleading requirement”) (quoting NationsMart, 130 F.3d at 315 ); Hill v. Bank of Am., N.A., 2016 WL 6441599 , at *5 (E.D. Mo. Nov. 1, 2016) (same). The Court agrees with these sister courts that, under Eighth Circuit precedent, Plaintiffs’ claim for negligent misrepresentation need only satisfy the general pleading requirements of Rule 8(a). Il. Count V states a claim for negligent misrepresentation under Rule 8. Although Defendant rests entirely on Rule 9(b) arguments and does not argue that Count V fails to satisfy Rule 8, see generally Docs. 12, 20, the Court nevertheless finds that Count V does satisfy the applicable Rule 8 pleading standard. Plaintiff alleges that Doctor Paul Lux, an alleged agent of Defendant, made statements to Plaintiff and others regarding the functionality and durability of the knee implant device, Doc. 4 JJ 24-26; that Defendant paid “kickbacks” to physicians like Doctor Lux, id. $32; that Doctor Lux made the aforementioned statements in his capacity as a physician while addressing patients with limited knowledge of knee replacement devices, id. JJ 24-27; that Mr. Allen relied on Doctor Lux’s expert advice in deciding to undergo knee surgery, id. JJ 15, 24-27; and that, as a result of the device's failure, Mr. Allen was required to undergo emergency surgery, id. | 21. Those allegations are sufficient to state a plausible claim for negligent misrepresentation. See Renaissance Leasing, 322 S.W.3d at 134 . Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, Doc. 11, is DENIED. Dated this 13 day of September, 2022. SARAH E. PITLYK UNITED STATES DISTRICT JUDGE