United States District Court, E.D. Arkansas, Pine Bluff Division
JOHNNY C. SIMPSON, et al. PLAINTIFFS
WRIGHT MEDICAL GROUP, INC., et al. DEFENDANTS
KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE
the Court is separate defendant Wright Medical Group,
Inc.'s (“WMG”) motion to dismiss for lack of
personal jurisdiction (Dkt. No. 3). Plaintiffs Johnny C.
Simpson and Elizabeth Simpson filed a timely response (Dkt.
No. 8-9), and WMG replied (Dkt. No. 15). Also before the
Court is WMG and Wright Medical Technology, Inc.'s
(“WMT”) motion to dismiss, requesting partial
dismissal of the complaint and specifically requesting
dismissal of the following claims: Count III for strict
liability manufacturing defect, Count V for negligent
misrepresentation, Count VI for fraudulent misrepresentation,
and Count VIII for punitive damages (Dkt. No. 4). The
Simpsons timely responded (Dkt. No. 7), and defendants
replied (Dkt. No. 16). For the reasons set forth below, the
Court grants WMG's motion to dismiss for lack of personal
jurisdiction (Dkt. No. 3). The Court grants in part and
denies in part defendants' motion to dismiss for failure
to state a claim (Dkt. No. 4).
Simpsons allege the following facts in their complaint. WMG
and WMT are designers and manufacturers of prosthetic
orthopedic products. WMG and WMT are both Delaware
corporations with their principal places of business in
Tennessee. WMG is the parent corporation of WMT. Cremascoli
patented the “Profemur® Modular neck” by 1986
(Id., ¶ 28). In December 1999, WMG acquired
Cremascoli and the line of Profemur hip products
(Id., ¶ 29). WMG then redesigned the Profemur
line of hip products, including the modular
“necks” and “stems.” (Id.,
¶ 30). WMG rebranded the product as the “Wright
Medical Profemur® Total Hip System.” (Id.,
¶ 31). After August 25, 2009, WMG began to offer for
distribution and sale in the United States Profemur modular
necks made of a cobalt-chromium alloy rather than out of
titanium, as had been the practice in the past (Id.,
¶ 33). The Simpsons further allege that WMG “has
been a plaintiff in a civil action filed in this United
States District Court, Case No. 3:10-cv-00033, filed on
February 18, 2010, and represented to this District Court in
the Complaint filed in that civil action” that WMG
“does business as” WMT (Id., ¶ 34).
2012, Mr. Simpson had multiple Wright hip components
installed in his left hip, including the “Profemur®
TL Femoral Stem” and the “Profemur® Plus CoCr
Modular Neck” (Id., ¶¶ 10, 18). Mr.
Simpson alleges that his orthopedic surgeon implanted the
Wright artificial hip in Mr. Simpson (Id., ¶
11). Mr. Simpson claims that, “[b]ased upon the patient
population that Wright intended its Profemur® artificial
hip devices to be implanted in, at the time of implantation
with his Wright Profemur® hip devices, ” Mr.
Simpson “was an appropriate patient to be implanted
with the Wright Profemur® hip devices he received.”
(Id., ¶ 14). Mr. Simpson also claims that his
orthopedic surgeon “recommended the Wright
Profemur® hip device” to him and “indicated
that the Wright Profemur® hip device was appropriate for
him.” (Id., ¶ 15). Mr. Simpson claims
that he reasonably relied upon his orthopedic surgeon in
deciding to proceed with hip replacement surgery “and
have Wright Profemur® hip device implanted in him.”
(Id., ¶ 16). He further alleges that he and his
orthopedic surgeon justifiably relied upon defendants'
alleged false representations of material fact in deciding to
utilize the device (Id., ¶¶ 134, 135).
Simpsons allege that defendants made false representations of
material fact as to the safety and efficacy of the Wright
Medical Profemur cobalt-chromium Neck when coupled with the
titanium modular neck in the Wright Medical Profemur Total
Hip System (Id., ¶¶ 47, 49, 53, 131). The
Simpsons contend that, when the representations were made,
defendants knew the representations were false (Id.,
¶¶ 68, 72, 73, 132). The Simpsons also allege that
defendants intended to induce reliance (Id., ¶
133). Finally, the Simpsons maintain that Mr. Simpson was
damaged as a result (Id., ¶¶ 22, 25, 82,
maintain that, by about February 2, 2016, Mr. Simpson
reported to his doctor, and his doctor recommended a revision
surgery because Mr. Simpson presented with elevated cobalt
ion levels, pain, and a weak abductor function (Id.,
¶ 22). This revision surgery was necessary because of
corrosion between the cobalt-chromium modular neck and
titanium stem designed and manufactured by WMG and WMT
(Id., ¶ 23).
Simpsons assert that, at the time of Mr. Simpson's
initial surgery, defendants had product complaint data
indicating that combining cobalt-chromium Profemur hip
components with titanium Profemur hip components would lead
to increased adverse events for patients (Id.,
¶¶ 72-74). The Simpsons claim that, while
defendants were aware of these risks, defendants made
multiple false representations about the cobalt-chromium
Profemur hip components, including that such components did
not pose an increased risk of adverse events, that such
components were structurally reliable, and that the
components did not pose an increased risk of fretting or
galvanic corrosion (Id., ¶ 131). They further
assert that the design of the Profemur hip components is
inherently dangerous and defective (Id., ¶ 75).
They also claim that the Profemur hip components installed in
Mr. Simpson did not comply with defendants' design
specifications (Id., ¶ 76). Finally, they claim
that defendants failed to warn patients and the medical
community about the risks of using the Profemur hip
components (Id., ¶¶ 79-81).
Simpsons' complaint alleges that both WMG and WMT
violated Arkansas state law due to their activities related
to the Profemur hip device and related components. The
Simpsons allege state-law claims of: (I) negligent design and
failure to warn or instruct, (II) strict liability design
defect, (III) strict liability manufacturing defect, (IV)
strict liability failure to warn, (V) negligent
misrepresentation, (VI) fraudulent misrepresentation, (VII)
loss of consortium, and (VIII) punitive damages (Dkt. No. 1).
Federal Rule of Civil Procedure 12(b)(6) Standard of
move to dismiss the Simpsons' claims pursuant to Federal
Rule of Civil Procedure 12(b)(6). “To survive a motion
to dismiss, 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 Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). “While a complaint attacked by a
[Federal] Rule [of Civil Procedure] 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (alteration in original)
(citations omitted). “When ruling on a motion to
dismiss, the district court must accept the allegations
contained in the complaint as true and all reasonable
inferences from the complaint must be drawn in favor of the
nonmoving party.” Young v. City of St.
Charles, 244 F.3d 623, 627 (8th Cir. 2001). A complaint
should be dismissed for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6) if “it appears
beyond doubt that the plaintiff can prove no set of facts in
support of [her] claim which would entitle [her] to
relief.” In re K-tel Int'l Sec. Litig.,
300 F.3d 881, 904 (8th Cir. 2002) (citations omitted).
moves to dismiss the claims against it on the grounds that it
is not subject to personal jurisdiction in Arkansas (Dkt. No.
3). The Simpsons assert that WMG is subject to specific
personal jurisdiction in Arkansas because WMG has had
sufficient contacts with Arkansas related to the
cobalt-chromium Profemur hip devices. Furthermore, they
assert that WMT's contacts with Arkansas should be held
against WMG, as WMT is an alter-ego of WMG. WMG and WMT also
move to dismiss certain claims against them (Dkt. No. 4).
Finally, in their responses to WMG and WMT's motions to
dismiss, the Simpsons seek the Court's leave to amend
their complaint (Dkt. Nos. 7-1, at 11; 8-9, at 14).
Motion To Dismiss WMG For Lack Of Personal
argues that it should be dismissed as a defendant for lack of
personal jurisdiction because it “is a holding company
with no employees, business operations, or contacts with the
State of Arkansas.” (Dkt. No. 3, at 1). In support, WMG
presents the affidavit of Amy Reeves, the Senior Director and
Controller at WMT (Dkt. No. 3-2, ¶ 2). Ms. Reeves avers
that WMG “is not registered to do business in Arkansas,
does not transact business in Arkansas, maintains no office
or place of business in Arkansas, owns no real property in
Arkansas, and has no clients or employees in Arkansas.”
(Id., ¶ 15). Furthermore, Ms. Reeves represents
that WMG “does not advertise, market, or offer services
for sale in Arkansas.” (Id., ¶ 16). Ms.
Reeves claims that WMT, not WMG, “manufacture[d],
market[ed], and [sold] the PROFEMUR® hip implant
components at issue in Plaintiff's Complaint.”
(Id., ¶ 18). According to Ms. Reeves, WMG
played no role in the labels or warnings related to the
Profemur hip implant components at issue in this case
(Id., ¶ 16). Ms. Reeves further declares that
WMG and WMT “are separate corporate entities”
with “separate accounting and banking records . . .
.” (Id., ¶¶ 13-14). Ms. Reeves does
concede that WMG is WMT's “parent company, ”
and that WMG is WMT's “sole shareholder.”
(Id., ¶ 9).
Simpsons argue that WMG is subject to specific personal
jurisdiction in Arkansas. The Simpsons argue that: (1) WMG
purposefully availed itself of Arkansas' laws when it
sold and installed the Profemur hip implants in Arkansas; (2)
WMG has consented to specific jurisdiction in Arkansas
because it has previously filed cases in Arkansas courts; (3)
WMG, through its SEC filings, admits that it, not WMT,
designed, manufactured, and marketed the Profemur hip
implants; and (4) WMG is the alter ego of WMT. After careful
review of the pleadings, the Court finds that the Simpsons
have failed to allege facts sufficient to establish specific
personal jurisdiction over WMG in Arkansas.
Personal Jurisdiction Standard
survive a motion to dismiss for lack of personal
jurisdiction, the plaintiff need only make a prima facie
showing of personal jurisdiction over the defendant.”
Digi-Tel Holdings v. Protec Telecoms., 89 F.3d 519,
522 (8th Cir. 1996) (internal citations omitted). Such a
prima facie showing “must be tested, not by
the pleadings alone, but by the affidavits and exhibits
presented with the motions and opposition thereto.”
Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072
(8th Cir. 2004) (quoting Block Indus. v. DHS Indus.,
Inc., 495 F.2d 256, 260 (8th Cir. 1974)). This Court may
consider supporting affidavits to determine the question of
personal jurisdiction without converting this motion to
dismiss to a motion for summary judgment. See, e.g.,
Romak USA, Inc., v. Rich, 384 F.3d 979, 983 (8th Cir.
party seeking to establish personal jurisdiction carries the
burden of proof, and the burden does not shift to the party
challenging jurisdiction. See Laseraim Tools, Inc. v. SDA
Mfg., LLC, 624 F.Supp.2d 1027, 1029 (E.D. Ark.
2008) (internal citation omitted). Although the plaintiff
bears the ultimate burden of proof, personal jurisdiction
over the defendant need not be proved by a preponderance of
the evidence until trial or until the Court holds an
evidentiary hearing. See Dakota Indus., Inc. v. Dakota
Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991)
(citing Cutco Ind. v. Naughton, 806 F.2d 361, 365
(2d Cir. 1986)). “If the district court does not hold a
hearing and instead relies on pleadings and affidavits . . .
the court must look at the facts in the light most favorable
to the nonmoving party, and resolve all factual conflicts in
favor of that party.” Dakota Indus. Inc., 946
F.2d at 1387 (internal citations omitted).
federal court in a diversity action may assume jurisdiction
over nonresident defendants only to the extent permitted by
the long-arm statute of the forum state and by the Due
Process Clause.” Morris v. Barkbuster, Inc.,
923 F.2d 1277, 1280 (8th Cir. 1991) (citation omitted).
Arkansas' long-arm statute confers jurisdiction to the
maximum allowed under the Constitution. Davis v. St.
John's Health Sys., Inc., 71 S.W.3d 55, 58 (Ark.
2002). Therefore, the Court must determine if exercising
personal jurisdiction over WMG comports with due process.
process requires that the defendant “have certain
minimum contacts with [the forum state] such that the
maintenance of the suit does not offend the traditional
notions of fair play and substantial justice.”
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945) (citations omitted). Courts must consider the
“quality and nature” of the defendant's
activities. Id. at 319. Personal jurisdiction does
not exist when the forum state “has no contacts, ties,
or relations” to the defendant. Id. (citation
omitted). The Supreme Court has held that “it is
essential in each case that there be some act by which the
defendant purposefully avails himself of the privilege of
conducting activities within the forum State, thus invoking
the benefits and protections of its laws.” Hanson
v. Denckla, 357 U.S. 235, 253 (1958) (citation omitted);
see Burger King Corp. v. Rudzewicz, 471 ...