United States District Court, S.D. Ohio, Eastern Division
Magistrate Judge Elizabeth P. Deavers
OPINION AND ORDER
A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE.
a product liability case under Ohio law arising from the
implantation of the Greenfield inferior vena cava filter
brought against Boston Scientific Corporation, the
filter's manufacturer. Before the Court are
Defendant's Motion to Dismiss (ECF No. 14), Plaintiffs
Memorandum in Opposition and Request for Leave to Amend the
Complaint (ECF No. 17), and Defendant's Reply in Support.
(ECF No. 18.) For the reasons that follow, Defendant's
Motion is DENIED as MOOT and Plaintiffs
request for leave to amend is GRANTED.
inferior vena cava ("IVC") is a vein that returns
blood to the heart from the lower extremities. (Compl. ¶
19.) In some individuals, blood clots or 'thrombi'
travel from the blood vessels in the leg and pelvis, through
the IVC and into the lungs, causing a pulmonary embolism.
(Id.) The thrombi can also develop into the deep leg
veins and are referred to as deep vein thrombosis
("DVT"). Doctors may treat individuals who are at
high risk of a pulmonary embolism or DVT with implantation of
an IVC filter when anticoagulants are contraindicated.
(Compl. ¶ 21.)
around September 21, 2009, Plaintiff Teresa Brewington
("Plaintiff) was hospitalized for recurrent DVTs and
pulmonary embolisms. While hospitalized, doctors surgically
implanted Plaintiff with an IVC filter, specifically, the
Greenfield Filter. (Compl. ¶ 41.) Plaintiff alleges that
Defendant sold and distributed the Greenfield Filter
defectively "due to the inadequate warnings,
instructions, labeling, and/or inadequate testing in light of
Defendant's knowledge of the product's failure and
serious adverse events." (Compl. ¶ 54.) As a
result, Plaintiff claims that she "is at risk of
suffering from serious health complication due to the
long-term implant of the filter." (Compl. ¶ 55.)
Plaintiff further contends that she suffers from "severe
injuries" including "economic damages, severe
permanent injuries, emotional distress and the psychological
trauma of living with a defective product implanted in
Plaintiffs body." (Compl. ¶ 57.)
alleges claims for negligence, defective design,
manufacturing defect, failure to warn, breach of express
warranty, breach of implied warrant of merchantability,
breach of implied warranty of fitness, fraudulent
misrepresentation, fraudulent concealment, and negligent
misrepresentation. Defendant moves to dismiss all counts for
failure to state a claim. In response, Plaintiff requests
leave to amend her Complaint.
Federal Rules of Civil Procedure 15(a)(2), the Court should
give leave for a party to amend its pleadings "when
justice so requires." Fed.R.Civ.P. 15(a)(2). "The
thrust of Rule 15 is to reinforce the principle that cases
should be tried on their merits rather than the
technicalities of pleadings." Tefft v. Seward,
689 F.2d 637, 639 (6th Cir. 1982) (citations omitted);
Oleson v. United States, 27 Fed.Appx. 566, 569 (6th
Cir. 2001) (internal quotations omitted) (noting that courts
interpret the language in Rule 15(a) as conveying "a
liberal policy of permitting amendments to ensure the
determination of claims on their merits").
"Nevertheless, leave to amend 'should be denied if
the amendment is brought in bad faith, for dilatory purposes,
results in undue delay or prejudice to the opposing party, or
would be futile."' Carson v. U.S. Office of
Special Counsel, 633 F.3d 487, 495 (6th Cir. 2011)
(quoting Crawford v. Roane, 53 F.3d 750, 753 (6th
her Memorandum in Opposition to Defendant's Motion to
Dismiss, Plaintiff requests leave to amend her Complaint.
(See Response in Opp.) In one instance, Plaintiff
concedes that her negligence claim, as pled in her Complaint,
is preempted by the Ohio Product Liability Act
("OPLA"), but asks the Court to allow her to
re-plead her claim under the applicable provision of OPLA.
(Response in Opp. at 11.) Plaintiff likewise acknowledges
that her claims for breach of express and implied warranties
were pled with similar deficiencies. (Response in Opp. at
12.) She cites Mitchell v, Proctor & Gamble, No.
2:09-cv-426. 2010 U.S. Dist. LEXIS 17956, at *15 (S.D. Ohio
March 1, 2010) in support of the Court allowing her to amend.
In Mitchell, the Court granted defendant's
motion to dismiss without prejudice, allowing plaintiff to
properly re-plead his claims under OPLA and with the
"further factual enhancement" needed. Id.
response, Defendant conclusively asserts "Plaintiff
should not be given leave to amend. She had an opportunity to
amend after receiving Boston Scientific's Motion to
Dismiss, yet chose not to do so.  Plaintiff has not stated
what she would allege if permitted to re-plead, " (Reply
in Support at 12, ECF No. 18.) Although Plaintiff did not
file a separate motion to amend, her response to
Defendant's Motion to Dismiss includes her request for
leave to amend. Plaintiff has thus requested leave in a
timely manner, with no undue delay. Defendant does not
suggest that amendment would be futile. Indeed, the majority
of Defendant's Motion to Dismiss is based on the premise
that Plaintiff failed to properly plead or conclusively pled
her claims, not that Plaintiff cannot plead her claims. Thus,
while Plaintiff needs to expand her factual allegations and
properly plead certain claims under the proper OPLA
provision, there is nothing to indicate that she cannot do
there is no indication that Defendant would be prejudiced by
the proposed amendment. There is no suggestion of bad faith
on the part of Plaintiff, this is the first amendment sought
by Plaintiff, and there is also no indication that Plaintiffs
amended allegations will unfairly recast the essential nature
of the case. See Leary v. Daeschner, 349 F.3d 888,
909 (6th Cir. 2003).
Plaintiffs request to amend her Complaint is
GRANTED and Defendant's Motion ...