562 F.Supp.3d 189
D. Ariz.2022Background
- Plaintiff Janine Dehart implanted a TVT‑S mesh in 2009 and alleges mesh erosion and related physical injuries (pelvic/rectal pain, dyspareunia, discharge, voiding difficulty, worsened SUI) requiring partial removal in 2019.
- The Court previously dismissed six counts of the FAC, granted leave to amend five; Plaintiff filed a Second Amended Complaint (SAC) reasserting those claims; Defendants moved to dismiss five reasserted counts.
- SAC added new factual allegations: the implanted TVT‑S was cut creating unintended sharp edges (manufacturing defect theory); additional testing‑related negligence allegations; expanded factual allegations for NIED and breach of express warranty; added facts re: training/representations to support constructive fraud.
- The Court denied dismissal of the manufacturing‑defect, negligence, NIED, and breach of express warranty claims, but dismissed constructive fraud; denied further leave to amend as futile/unduly delayed.
- Decision entered January 11, 2022 (motion to dismiss granted in part and denied in part).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Manufacturing defect (strict liability) | SAC alleges TVT‑S was cut, creating unintended sharp edges that caused erosion — a specific deviation from specs | No identification of specs or specific deviation; allegation duplicates design defect; counsel conceded lack of facts elsewhere | Denied dismissal — allegation that product was cut plausibly pleads a manufacturing defect |
| Negligence (redundancy) | Negligent testing and other conduct support a standalone negligence claim | Negligence is redundant of strict liability/design/warning claims; testing allegations are conclusory | Denied dismissal — because manufacturing‑defect claim survives, negligence is not redundant |
| Negligent infliction of emotional distress (NIED) | Plaintiff alleges constant fear, stress, anxiety and that those emotional harms have manifested as pain; also alleges direct physical injuries from the mesh | No allegation of severe emotional distress or professional treatment; resembles fear‑of‑future‑illness cases rejected by Arizona courts | Denied dismissal — NIED permissible here because plaintiff also alleges direct physical injury (parasitic emotional damages) |
| Breach of express warranty (statute of limitations) | Defendants warranted TVT‑S as a permanent cure; warranty extends to future performance so accrual delayed until discovery (alleged ~2019) | Four‑year SOL accrues at delivery (2009); no Arizona discovery rule for warranty; future‑performance allegation vague; lack of direct affirmative statement to plaintiff | Denied dismissal — SAC plausibly alleges a warranty of future performance and discovery in 2019, so claim is timely |
| Constructive fraud | SAC adds training/representations to plaintiff’s surgeon and alleges information intended to induce plaintiff’s reliance | No fiduciary or confidential relationship between manufacturer and patient; merely a commercial transaction | Dismissed — SAC still fails to allege a fiduciary/confidential relationship required for constructive fraud under Arizona law |
| Leave to amend | Plaintiff requests leave to amend further based on same facts | Defendants oppose; case is aged and already amended multiple times | Denied — further amendment would be futile and cause undue delay |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard: factual matter must plausibly suggest liability)
- In re Fitness Holdings Int’l, Inc., 714 F.3d 1141 (9th Cir.) (accept well‑pleaded facts as true for Rule 12(b)(6) analysis)
- Mollett v. Netflix, Inc., 795 F.3d 1062 (9th Cir.) (complaint may be dismissed for lack of cognizable theory)
- Harduvel v. Gen. Dynamics Corp., 878 F.2d 1311 (11th Cir.) (distinguishes manufacturing v. design defects — aberrational vs. systematic defect)
- Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir.) (permitting pleading of alternative theories)
- Monaco v. HealthPartners of S. Arizona, 995 P.2d 735 (Ariz. Ct. App.) (NIED requires physical injury or long‑term illness for claims based solely on emotional harm)
- Burns v. Jaquays Min. Corp., 752 P.2d 28 (Ariz. Ct. App.) (fear‑of‑future‑illness claims insufficient absent physical harm)
- DeStories v. City of Phoenix, 744 P.2d 705 (Ariz. Ct. App.) (similar limitation on purely emotional claims)
- Felder v. Physiotherapy Assocs., 158 P.3d 877 (Ariz. Ct. App.) (parasitic emotional damages recoverable when accompanied by serious physical injury)
- Cook v. Orkin Exterminating Co., Inc., 258 P.3d 149 (Ariz. Ct. App.) (commercial transactions do not create fiduciary duties absent special facts)