     Case: 14-31169       Document: 00513481106         Page: 1     Date Filed: 04/26/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                       No. 14-31169                               FILED
                                                                              April 26, 2016

KALE FLAGG,                                                                  Lyle W. Cayce
                                                                                  Clerk
               Plaintiff - Appellant

v.

STRYKER CORPORATION; MEMOMETAL INCORPORATED, USA,

               Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-852


Before DAVIS, ELROD, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge: *
       Kale Flagg appeals the dismissal of his complaint against Stryker
Corporation (“Stryker”), Memometal Incorporated (“Memometal”) (collectively,
the “Manufacturing Defendants”), and five fictitious insurance companies 1 for




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1 Although the fictitious insurance companies remain parties in this case, there is no
indication they were ever served or that they have appeared in any way. A judgment of
dismissal is final and appealable under 28 U.S.C. § 1291 even if it does not dispose of claims
made against a party that has neither been served nor appeared before the court. See
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                                      No. 14-31169
failure to state a plausible claim related to allegedly defective toe implants.
Because we conclude Flagg sufficiently alleged a plausible claim under the
Louisiana Products Liability Act (“LPLA”), LA. STAT. ANN. §§ 9:2800.51–
9:2800.60, we REVERSE the district court’s dismissal of Flagg’s claim that the
toe implants were defective in design, construction, or composition and
REMAND for further proceedings.
                                             I.
       Flagg underwent foot surgery to install toe implants allegedly made by
the Manufacturing Defendants. Less than one year after the surgery, Flagg
avers that those implants broke and caused him pain and complications that
resulted in multiple surgeries to remove the implants and repair the damage
that ensued.      Flagg alleges ongoing suffering and disfigurement from the
implants, which he claims were defective and unreasonably dangerous under
Louisiana law. After Flagg’s suit was removed from state court, the district
court granted him leave to amend his complaint against the Manufacturing
Defendants. 2 The Manufacturing Defendants moved to dismiss Flagg’s claims
against them under Federal Rule of Civil Procedure 12(b)(6), and the district
court granted that motion. Flagg timely appealed.




generally Fed. Sav. & Loan Ins. Corp. v. Tullos-Pierremont, 894 F.2d 1469, 1471–74 (5th Cir.
1990). We therefore do not mention these fictitious insurance companies again.
       2 Flagg also sued several medical providers for malpractice in installing the implants
and treating him thereafter. The district court dismissed those medical defendants as
improperly joined. Sitting en banc, our court ultimately affirmed that dismissal, concluding
the district court properly exercised jurisdiction over the remaining Manufacturing
Defendants. See Flagg v. Stryker Corp., ___ F.3d ____, No. 14-31169, 2016 WL 1169067, at
*1, 5–6 (5th Cir. Mar. 24, 2016) (en banc). This case was therefore returned to this panel to
address the merits of the district court’s dismissal of Flagg’s claims against the
Manufacturing Defendants. Id. at *5–6. We do so here without further discussion of the
medical defendants or the improper joinder issue.
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                                   No. 14-31169
                                         II.
      We review the district court’s grant of a motion to dismiss de novo,
accepting all well-pleaded allegations as true and viewing them in the light
most favorable to the nonmovant. See In re S. Scrap Material Co., 541 F.3d
584, 587 (5th Cir. 2008). To avoid dismissal, a plaintiff must state a claim for
relief that is facially plausible by pleading “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint
is insufficient if it offers only “labels and conclusions,” or “a formulaic recitation
of the elements of a cause of action.” Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). On a motion to dismiss, when the cause of action
requires specific elements to be proven, the plausibility “standard ‘simply calls
for enough fact to raise a reasonable expectation that discovery will reveal
evidence of’ the necessary claims or elements.” In re S. Scrap Material Co.,
541 F.3d at 587 (quoting Twombly, 550 U.S. at 556).
                                         III.
      The LPLA provides the “exclusive remedy for products liability suits”
under Louisiana law. Demahy v. Schwartz Pharma, Inc., 702 F.3d 177, 182
(5th Cir. 2012); see also LA. STAT. ANN. § 9:2800.52. In order to maintain a
successful products liability action under the LPLA, a plaintiff must establish
that the defendant is the manufacturer of the product; the claimant’s damage
was proximately caused by a characteristic of the product; this characteristic
made the product unreasonably dangerous; and the claimant’s damage arose
from a reasonably anticipated use of the product. Id. § 9:2800.54(A). The
Manufacturing Defendants solely challenge whether Flagg sufficiently pleaded
that the toe implants were unreasonably dangerous under the LPLA.                   A
plaintiff may establish a product was unreasonably dangerous under one of
four theories: (1) the product’s construction or composition is defective, (2) the
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product’s design is defective, (3) the product’s warnings are inadequate, or (4)
by showing a breach of express warranty. Id. § 9:2800.54(B). Although Flagg
alleged inadequate warning and breach of express warranty, we conclude those
allegations were properly dismissed by the district court as failing to state a
plausible claim under the LPLA. 3 However, at this stage, we conclude Flagg’s
pleadings sufficiently state a claim that the toe implants were unreasonably
dangerous due to alleged defects in design, construction, or composition. See
id. §§ 9:2800.54(B), 9:2800.55–56.
       In order to prove a construction or composition defect at trial, a plaintiff
must show that “at the time the product left its manufacturer’s control, the
product deviated in a material way from the manufacturer’s specifications or
performance standards for the product or from otherwise identical products
manufactured by the same manufacturer.” Id. § 9:2800.55. To prove a design
defect, a plaintiff must show that “at the time the product left the
manufacturer’s control[,] [t]here existed an alternative design for the product
that was capable of preventing the claimant’s damage” and that the danger
and gravity of that damage outweighed any adverse effects on the utility of the
product and the burden on the manufacturer of adopting the alternative
design. Id. § 9:2800.56.




       3  For his inadequate warning claim, Flagg failed to include any allegations about
whether the Manufacturing Defendants failed to warn Flagg’s doctor of the risk involved and
whether Flagg’s doctor would have used the implants if given such a warning, as required
under Louisiana law. See Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 268 (5th Cir. 2002)
(observing that Louisiana employs the learned intermediary doctrine, such that plaintiffs in
LPLA cases must show defendants failed to adequately warn treating physicians). Similarly,
Flagg fails to allege what was guaranteed by the express warranty in relation to his claims
that the implants were defective, and Flagg does not claim the express warranty induced
Flagg or his doctor to use the device, as required. See LA. STAT. ANN. § 9:2800.58 (requiring
that the express warranty “has induced the claimant or another person or entity to use the
product”); see also Caboni v. Gen. Motors Corp., 278 F.3d 448, 452 (5th Cir. 2002) (noting this
element of a breach of express warranty claim under the LPLA).
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                                  No. 14-31169
      Flagg alleges his injuries occurred because defendants “manufactured
and sold a defective product,” i.e., toe implants, which were placed in his foot
and failed. Flagg averred that the Manufacturing Defendants caused Flagg’s
injuries by “[m]anufacturing and selling a product which is unreasonably
dangerous in construction and/or composition,” as well as “in design,” and that
“[t]he defective condition of the implant existed at the time the product left the
control of its manufacturer.” Flagg also alleged in his first amended complaint
that his “injuries were caused by the defective and unreasonably dangerous
product manufactured and sold by [the Manufacturing Defendants,]” in the
following “non-exclusive” ways:
            a) Manufacturing and selling a product which is
               unreasonably dangerous in construction and/or
               composition; particularly a different alloy other than the
               Memometal NiTinol would have a better fatigue life
               and/or product life, the body temperature activated shape
               memory of the alloy used interfered and negatively
               influenced the fatigue life and/or product life expectancy
               of the implant;
            b) Manufacturing and selling a product which is
               unreasonably dangerous in design; particularly the shape
               and incorrect sizing contributed to the fracture of the
               implant and difficulty in removal once implants broke
               ....
            e) Any and all other particulars which may appear through
               discovery and further examination of the product.
      The   Manufacturing      Defendants    argue    Flagg’s   allegations   are
insufficient because they lack further details about how the implants may have
deviated from specifications and performance standards or otherwise identical
products and because they do not sufficiently allege an existing and non-
burdensome alternative design. Cf. id. §§ 9:2800.55–56. Flagg contends that
he already consulted with an expert and amended his complaint to include as
much detail as he can supply at this stage without further discovery from the
Manufacturing Defendants about the specifications, performance standards,
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                                      No. 14-31169
and design of the implants. While federal district courts in Louisiana have
addressed this issue with conflicting results, 4 we have never squarely
addressed how much detail and specificity is required to plead that a product
was unreasonably dangerous under the LPLA due to defective design,
construction, or composition.
       We conclude that Flagg’s allegations provide sufficient information to
“raise a reasonable expectation that that discovery will reveal evidence” to
support the Manufacturing Defendants’ liability. See In re S. Scrap Material
Co., 541 F.3d at 587 (citation omitted). Requiring Flagg and other plaintiffs to
plead extremely “detailed factual allegations” that satisfy each element of a
products liability action under the LPLA creates a situation where a
manufacturer will not be held liable for defective products because it has sole
possession of the necessary document to ultimately prove the claim. See Iqbal,
556 U.S. at 678 (noting that pleadings need not contain “detailed factual
allegations” (quoting Twombly, 550 U.S. at 555)); see also Bertrand v. Eli Lilly
& Co., No. 12-0853, 2013 WL 4093556, at *5 (W.D. La. Aug. 13, 2013) (noting
plaintiffs in products liability suits face a likely impossible task of stating more
specific allegations about manufacturing and design when the defendants have
possession of the necessary information).
       Flagg’s complaint clearly alleges that he received toe implants
manufactured by the Manufacturing Defendants that broke within months of
installation, causing pain and suffering and requiring multiple surgeries to
repair damage. Flagg alleges that the shape and sizing of the implants led to
the implants’ fracturing and caused them to be difficult to remove once broken.
This constitutes an allegation of precisely how the product failed and how that


       4See, e.g., Lirette v. DePuy Mitek, L.L.C., No. 2:13-CV-2892, 2014 WL 5445777, at *3–
5 (W.D. La. Oct. 20, 2014); Wollens v. Merck & Co, Inc., No. 12-1408, 2012 WL 6504210, at
*2–3 (E.D. La. Dec. 13, 2012).
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                                  No. 14-31169
failure caused his injury and would support an ultimate verdict that the sizing
and shape of the implants deviated from the normal specifications and
performance standards, or from other identical implants manufactured by the
Manufacturing Defendants.         Flagg’s complaint includes more than “an
unadorned, the-defendant-unlawfully-harmed-me accusation.” See Iqbal, 556
U.S. at 678.
      Flagg also claimed that a different alloy other than the Memometal
NiTinol would have performed better and that the composition of the implant
negatively influenced the performance of the implant. This allegation supports
a conclusion that the alloy used was constructed or composed in a way that
deviated from specifications or performance standards. Additionally, although
not specifically designated as such in the complaint, this allegation suggests
an alternative design existed which would have reduced the risks of the
original product. Cf. Peavy v. WFAA-TV, Inc., 221 F.3d 158, 167 (5th Cir. 2000)
(“The form of the complaint is not significant if it alleges facts upon which relief
can be granted, even if it fails to categorize correctly the legal theory giving
rise to the claim.” (citation omitted)). This pleading does more than provide
“labels and conclusions or a formulaic recitation of the elements.” Iqbal, 556
U.S. at 678 (citation omitted). Instead, Flagg’s complaint provides “further
factual enhancement” that creates “facial plausibility.” Id. (citation omitted).
It allows this court to “draw the reasonable inference that [the Manufacturing
Defendants are] liable for” the damage Flagg suffered, due to the implants’ use
of a poorly-performing alloy, instead of a different metal alloy and a different
shape and size to reduce the risk of malfunctioning and injury. Id. Although
Flagg does not plead that the alternative alloy and design were available when
the implants were produced or that the danger of the damage outweighs the
burden of adopting the design, those very detailed and specific allegations are
not required to plead a plausible claim at this this stage, before Flagg has had
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                                  No. 14-31169
an opportunity for discovery. See, e.g., Becnel v. Mercedes-Benz USA, LLC, No.
14-0003, 2014 WL 4450431, at *2–4 (E.D. La. Sept. 10, 2014); McLaughlin v.
GlaxoSmithKline, LLC, No. 12-2946, 2014 WL 669349, at *4 (W.D. La. Jan. 6,
2014); Bertrand, 2013 WL 4093556, at *5–6; Nelson v. Mylan Pharm., Inc., No.
6:10-cv-0591, 2010 WL 3339274, at *4–6 (W.D. La. Aug. 3, 2010), report and
recommendation adopted, 2010 WL 3363039, at *1 (W.D. La. Aug. 24, 2010).
      Twombly and Iqbal were designed to avoid subjecting defendants to
lengthy and expensive discovery when the plaintiff is merely on a fishing
expedition. See Iqbal, 556 U.S. at 678–80; Twombly, 550 U.S. at 558–59. They
are not a basis to shield product manufacturers from liability. Perhaps after
discovery Flagg will not prevail, but at a pre-discovery stage of this case, in an
area of law where defendants are likely to exclusively possess the information
relevant to making more detailed factual allegations, we cannot say that he is
merely on a fishing expedition.       See Bertrand, 2013 WL 4093556, at *5
(“Twombly and Iqbal were not products liability suits, and in products liability
lawsuits, almost all of the evidence is in the possession of the defendant, and,
therefore, it is likely impossible for plaintiffs to state more specific allegations
regarding defects in manufacture and design without first having the benefit
of discovery and expert analysis.”). Indeed, Flagg had to retain an expert
simply to plead a more detailed plausible complaint in federal court.
      In this specific context, we must remember that the question at the
motion to dismiss stage is not whether Flagg has proven the elements to
succeed on a products liability claim, or even whether he has made “detailed
factual allegations.” See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
555). The question is whether Flagg has plausibly alleged enough information
that, with discovery, he could prove the Manufacturing Defendants are liable
under the LPLA. See In re S. Scrap Material Co., 541 F.3d at 587 (quoting
Twombly, 550 U.S. at 556). Although Flagg’s allegations are not lengthy, they
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                                 No. 14-31169
cross the threshold.     We conclude Flagg’s claims that the implants were
defective in design, construction, or composition are sufficient to “raise [the]
right to relief above the speculative level,” Twombly, 550 U.S. at 555, and
should proceed.
                                      IV.
      For the reasons stated, we AFFIRM the district court’s conclusion that
Flagg has failed to plausibly plead an unreasonably dangerous product
pursuant to the LPLA under the theories of inadequate warning and breach of
express warranty.      We REVERSE the district court’s dismissal of Flagg’s
claims that the implants were unreasonably dangerous under the LPLA due to
defective design, construction, or composition, and REMAND the case for
further proceedings consistent with this opinion.
      Judge Davis concurs in the judgment only.




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