John Muldoon v. DePuy Orthopaedics, Inc.

Background

John Muldoon’s Second Amended Complaint alleged 18 causes of action against Dr. David Dodgin, John Muir Health, and companies involved in producing or manufacturing components used in Muldoon’s 2007 hip replacement. Muldoon alleged that the ceramic-on-metal implant released toxic cobalt-chromium ions and particles, causing injuries that eventually required revision surgery in 2014.

Dodgin moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Claim 13, a civil Racketeer Influenced and Corrupt Organizations Act claim; Claim 14, a medical-negligence claim; and Claim 18, a battery claim. He did not move to dismiss the informed-consent or breach-of-fiduciary-duty claims. Dodgin also moved under Rule 12(f) to strike portions of two paragraphs in the complaint.

RICO Claim

The court held that Muldoon had not adequately alleged the type of injury required for a civil RICO claim. RICO allows recovery for injury to a person’s business or property, not merely financial losses or personal injuries. Muldoon alleged expenses for surgeries, hospital care, and other costs, but did not identify an associated property interest recognized under state law.

The court also held that the complaint did not satisfy Rule 9(b), which requires fraud allegations to identify the misconduct’s time, place, and manner and to describe each defendant’s role with particularity. The allegations generally referred to the defendants collectively and did not provide enough specific information about Dodgin’s conduct. Because the defects might be cured by amendment, the court granted Dodgin’s motion as to Claim 13 and dismissed that claim with leave to amend.

Negligence Claim

The court denied Dodgin’s motion to dismiss Claim 14. Muldoon alleged that Dodgin owed him the duty to use the skill and care ordinarily exercised by surgeons in similar circumstances and breached that duty by implanting the DePuy components together as a system.

The court rejected Dodgin’s arguments that the components’ Food and Drug Administration approvals defeated the claim as a matter of law. The parties disputed whether Muldoon received the later-approved Pinnacle CoMplete system or a different combination of components. The court could not resolve that factual dispute on a motion to dismiss and credited Muldoon’s allegation that the components were separately approved under the Section 510(k) process but were not approved for use together as a system. The court also held that the negligence claim concerned whether Dodgin met the medical standard of care, not whether the Food and Drug Administration’s approval status itself caused Muldoon’s injuries.

Battery Claim

The court granted Dodgin’s motion as to Claim 18 and dismissed the battery claim with prejudice. Under the legal standards discussed in the opinion, battery may apply when a doctor performs an operation to which the patient did not consent. A claim that the doctor performed the agreed procedure but failed to disclose risks and alternatives generally sounds in negligence based on lack of informed consent.

The complaint alleged that Muldoon consented to hip-replacement surgery but was not adequately informed about the risks, the component configuration, or alternatives. Because the complaint alleged performance of the agreed procedure rather than a substantially different procedure without consent, the court concluded that the allegations supported negligence, not battery. The court found amendment would be futile and dismissed the claim with prejudice.

Motion to Strike

The court denied both requests to strike. It denied the request concerning paragraph 275 because the allegations about risks, benefits, and alternative implants were relevant to Muldoon’s informed-consent claim and because the complaint could plead facts in the alternative. It also denied the request concerning paragraph 278 because resolving Dodgin’s arguments would require deciding factual issues about the nature of the Food and Drug Administration approval, matters better addressed through a motion to dismiss or summary judgment.

Judicial Notice and Disposition

The court denied judicial notice of Exhibits A and B because their nature, purpose, or authenticity was unclear. It granted judicial notice of Exhibit C, a publicly filed federal criminal complaint whose authenticity was not reasonably disputed and whose notice request was unopposed.

In the conclusion, the court granted Dodgin’s motion to dismiss Claim 13 as alleged against him and dismissed that claim with leave to amend; denied the motion to dismiss Claim 14 as alleged against him; and granted the motion to dismiss Claim 18 as alleged against him and dismissed that claim with prejudice. The deadline for any amended complaint would be set in a later order addressing DePuy’s pending motion to dismiss. No new claims or parties could be added without defendants’ consent or the court’s permission.