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Smith v. Davol Inc.

Superior Court of Rhode Island

November 28, 2016

WAYNE SMITH and REBECCA SMITH Plaintiffs,
v.
DAVOL INC. and C. R. BARD INC. Defendants.

         Providence County Superior Court

          For Plaintiff: Robert W. Smith, Esq.

          For Defendant: Mark Nugent, Esq.

          Thomas M. Robinson, Esq.

          DECISION

          GIBNEY, P.J.

         The Defendants, Davol Inc. (Davol) and C. R. Bard Inc. (Bard) (collectively, Defendants), bring this Super. R. Civ. P. 12(b)(6) (Rule 12(b)(6)) motion to dismiss against Plaintiffs Wayne and Rebecca Smith (Plaintiffs) in the above-titled negligence and product liability action. Defendants assert that Plaintiffs' Amended Complaint fails to state a claim upon which relief can be granted because Plaintiffs do not establish a product "defect" as required under Rhode Island strict product liability law. Additionally, Defendants contend that Plaintiffs' claims lack proximate cause essential to establish product liability and negligence. Plaintiffs assert that Davol's Composix Kugel Hernia Patch (patch) meets definitions of "defective" under Rhode Island strict product liability law, and that there is sufficient proximate cause alleged in their Amended Complaint in order to survive a Rule 12(b)(6) motion to dismiss. This Court exercises jurisdiction pursuant to G.L. 1956 § 8-2-14.

         I

         Facts and Travel

         On February 7, 2005, Mr. Wayne Smith (Mr. Smith) underwent surgery to repair a ventral hernia. Doctors implanted a 7.7" x 9.7" patch to repair the hernia. Davol designed, manufactured, and distributed the mesh patch that doctors implanted into Mr. Smith. Bard is the corporate parent and stockholder of Davol, and it participates in the manufacture and distribution of the patch, in addition to supplying Davol with material that forms part of the patch. After implantation surgery, Mr. Smith suffered severe abdominal pain and tenderness at the site of implantation. On December 22, 2005, Davol issued the first of several recalls, which included a recall for the type of patch implanted into Mr. Smith. Additional recalls were again issued in January and March of 2006. The patch was recalled due to a faulty "memory recoil ring" that could potentially break under pressure. This recall was issued after there were reports of incidents of ring migration within the body, intestinal fistulae, bowel perforation, and even death.

         After reporting his pain and symptoms to his physician, Mr. Smith's doctor advised him that his hernia repair patch was subject to a recall due to defects in the product. Specifically, the product recall included information on possible symptomology that would suggest necessary removal of the patch. The recall advised doctors to remain alert for patients reporting "symptoms that could be associated with ring breakage such as unexplained or persistent abdominal pain, fever, tenderness at the implant site or other unusual symptoms." Defs.' Mem., Ex. A. As a result of this information-and with notice of Mr. Smith's reported abdominal pain and tenderness at the site of implantation-Mr. Smith's physician recommended explantation surgery to remove the patch.

         As a result of such explantation procedures, Mr. Smith alleges he suffered severe and continuing physical pain and mental anguish. Plaintiffs bring this action and assert eight claims, including: 1) Negligence; 2) Violation of the Rhode Island Deceptive Trade Practices Act (DTPA); 3) Strict Product Liability; 4) Negligent Infliction of Emotional Distress; 5) Intentional Infliction of Emotional Distress; 6) Breach of Implied Warranty; 7) Failure to Warn; and 8) Loss of Consortium. Defendants now bring this motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6).

         II

         Parties' Arguments

         Davol and Bard maintain that Plaintiffs' claims contained in the Amended Complaint rely on a nonexistent theory of "product recall liability" that is unfounded in Rhode Island law. They assert that because Mr. Smith was injured by the explantation surgery and not the implanted patch itself, Plaintiffs' claims for personal injury and product liability cannot survive a Rule 12(b)(6) motion. Further, Defendants contend that "[m]anufacturers have no post-sale duty to ensure that physicians [have] 'sufficient information to inform and assist [] in diagnosing a ring breakage.'" Defs.' Mem. 5. Additionally, Defendants argue that there is no claim in negligence under Rhode Island law for a product that merely has a propensity to produce injury, rather than an actual malfunction in the product itself. Defendants assert that under negligence, the Plaintiffs lack proximate cause and thus their claims cannot survive. Finally, Defendants argue that all other claims included in the Plaintiffs' Amended Complaint will also necessarily fail under Rhode Island law if the Plaintiffs fail to establish a defect and proximate cause.

         Alternatively, Plaintiffs contend that their Amended Complaint survives a Rule 12(b)(6) motion to dismiss because it asserts sufficient legally cognizable claims. Plaintiffs argue that Rhode Island product liability law merely requires a defect in the product at the time it leaves a defendant's control-rather than an actual malfunction or failure of the product itself- especially when dealing with recalls for products that are intended for health purposes and inserted into the body. Further, Plaintiffs claim that the defect rendered the product very likely to fail, that, therefore, the product was unreasonably dangerous, and that the defect was the proximate cause of Mr. Smith's pain symptoms and resulting injuries from the explantation surgery. Finally, Plaintiffs contend that Defendants had a duty to warn patients and to provide proper information to doctors who may be monitoring patients for product issues. Plaintiffs maintain that their Amended Complaint asserts legally cognizable claims sufficient to provide notice to Davol and Bard and to move past Defendants' Rule 12(b)(6) motion to dismiss.

         III

         Standard of Review

         "The sole function of a motion to dismiss is to test the sufficiency of the complaint." Palazzo v. Alves, 944 A.2d 144, 149 (R.I. 2008) (citations omitted). Looking at the four corners of a complaint, this Court examines the allegations in a plaintiff's complaint, assumes them to be true, and views them in a light most favorable to the plaintiff. Barrette v. Takavonis, 966 A.2d 1231, 1234 (R.I. 2009). This Court is mindful of the policy to interpret the pleading rules liberally so that cases are not "disposed of summarily on arcane or technical grounds." Haley v. Town of Lincoln, 611 A.2d 845, 848 (R.I. 1992). The complaint need not include the precise legal theory upon which the claims are based or even the ultimate facts to be proven; all that is required is fair and adequate notice to the opposing party of the claims being asserted. Gardner v. Baird, 871 A.2d 949, 953 (R.I. 2005) (citations omitted); see also Berard v. Ryder Student Transp. Servs., Inc., 767 A.2d 81, 83-84 (R.I. 2001). Consequently, '"[a] motion to dismiss is properly granted when it is clear beyond a reasonable doubt that the plaintiff would not be entitled to relief from the defendant under any set of facts that could be proven in support of the plaintiff's claim.'" Goddard v. APG Sec.-RI, LLC, 134 A.3d 173, 175 (R.I. 2016); Woonsocket Sch. Comm. v. Chafee, 89 A.3d 778, 787 (R.I. 2014) (quoting Mendes v. Factor, 41 A.3d 994, 1000 (R.I. 2012)).

         IV

         Analysis

         A

         Product ...


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