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Nicholson v. Biomet, Inc.

United States District Court, N.D. Iowa, Central Division

January 28, 2019

LORI NICHOLSON; and WILLIS WILLIAM NICHOLSON, Plaintiffs,
v.
BIOMET, INC; BIOMET ORTHOPEDICS, LLC; BIOMET MANUFACTURING CORP; and BIOMET U.S. RECONSTRUCTION LLC, Defendants.

          ORDER

          C. J. Williams United States District Judge

         This matter is before the Court on Lori Nicholson and Willis William Nicholson's (“plaintiffs”) Motion to Strike Certain Affirmative Defenses. (Docs. 13-14). Defendants, together, filed their resistance (Doc. 243), and defendants subsequently supplemented their resistance (Doc. 244). The Court considers this motion fully ripe. For the following reasons, plaintiffs' motion is granted in part; denied in part; and denied as moot as to affirmative defenses two, three, seventeen, twenty-five, thirty-nine, forty-two, as to affirmative defense seven to the extent the affirmative defense relies upon Section 19 of the Restatement (Third) of Torts: Products Liability, and as to affirmative defense eighteen as the affirmative defense relates to informed consent, release, and waiver. To the extent defendants have moved for leave to amend their thirty-fourth and thirty-eighth affirmative defenses, such motion is denied.

         I. BACKGROUND

         This case is one of a series of products liability cases, some of which the Judicial Panel on Multidistrict Litigation assigned to the Northern District of Indiana for consolidated and coordinated pretrial proceedings. (Doc. 215, at 1). Pursuant to an order entered by the Northern District of Indiana, plaintiffs filed their complaint in that court, but pled that venue was proper in the Northern District of Iowa. (Id., at 2; Doc. 1, at 3). The Court will not presently address whether venue in this Court is proper beyond noting that defendants have pled as an affirmative defense that “venue is improper.”[1] (Doc. 8, at 55).

         In sum, plaintiffs brought this action on a products liability theory, arguing that an artificial hip joint allegedly manufactured and marketed by defendants was defective, and that the allegedly defective hip joint was implanted into plaintiff Lori Nicholson. (Doc. 1). As a result of the joint's alleged defects, plaintiffs claim that plaintiff Lori Nicholson had to undergo painful and risky corrective surgery and that plaintiffs suffered damages as a result of the defects. (Id.). Defendants responded to plaintiffs' complaint with forty-two affirmative defenses, twenty-three of which plaintiffs seek to have stricken. (Docs. 8, at 49-57; 13, at 1-4). Of those twenty-three affirmative defenses, defendants have agreed to withdraw five in full and two in part.[2] (Doc. 243, at 24). The eighteen affirmative defenses that remain at issue are as follows: one, seven (in part), eight, nine, fifteen, eighteen (in part), nineteen, twenty-one, twenty-two, twenty-six, twenty-seven, twenty-eight, thirty-two, thirty-four, thirty-six, thirty-seven, and thirty-eight.

         II. APPLICABLE LAW

         Plaintiffs bring their motion under Federal Rule of Civil Procedure 12(f), which permits a court to “strike from a pleading an insufficient defense . . ..” Rule 8(c) states that “a party must affirmatively state any . . . affirmative defense.” “The [Federal Rules of Civil Procedure] do not require a party to plead every step of legal reasoning that may be raised in support of [an] affirmative defense; they only require a defendant to state in short and plain terms its defenses to a plaintiff's claims.”[3] U.S. Commodity Futures Trading Comm'n v. U.S. Bank, N.A., No. 13-CV-2041-LRR, 2014 WL 294219, at *9 (N.D. Iowa Jan. 27, 2014) (quoting Wisland v. Admiral Beverage Corp., 119 F.3d 733, 737 (8th Cir. 1997)).

         The requirement that an affirmative defense be pled in short and plain terms is intended to give the opposing party notice of the affirmative defense and an opportunity to refute the defense. Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350 (1971); see also First Union Nat'l Bank v. Pictet Overseas Tr. Corp., 477 F.3d 616, 622 (8th Cir. 2007) (“The Supreme Court has indicated that the Rule 8(c) pleading requirement is intended to give the opposing party both notice of the affirmative defense and an opportunity to rebut it.” (citations omitted)). The Eighth Circuit Court of Appeals has, therefore, liberally interpreted affirmative defenses in determining whether such defenses have been adequately pled and has held that “when an affirmative defense is raised in the trial court in a manner that does not result in unfair surprise, technical failure to comply with Rule 8(c) is not fatal.” Pictet, 477 F.3d at 622 (alterations, citations, and internal quotation marks omitted). “Nowhere in Rule 8(c) is there a requirement for the party pleading an affirmative defense to show that the pleader is entitled to relief, or, in the case of a defendant, that the affirmative defense, if the facts articulated were true, absolves the pleader of liability.” U.S. Bank, 2014 WL 294219, at *10 (alteration and internal quotation marks omitted).

         When striking a pleading under Rule 12(f), a district court enjoys broad discretion. Stanbury Law Firm v. IRS, 221 F.3d 1059, 1063 (8th Cir. 2000) (citations omitted). “Despite this broad discretion[, ] however, striking a party's pleadings is an extreme measure, and, as a result, . . . motions to strike under [Federal Rule of Civil Procedure 12(f)] are viewed with disfavor and are infrequently granted.” Id. (alteration, citations, and internal quotation marks omitted). “A motion to strike a defense will be denied if the defense is sufficient as a matter of law or if it fairly presents a question of law or fact which the court ought to hear.” Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977) (citation and internal quotation marks omitted). If, however, an affirmative defense “is foreclosed by prior controlling decisions or statutes, ” the district court may properly strike the defense as legally insufficient. Liguria Foods, Inc. v. Griffith Labs., Inc., No. C14-3041-MWB, 2014 WL 6066050, at *2 (N.D. Iowa Nov. 13, 2014) (citing United States v. Dico, Inc., 266 F.3d 864, 879-80 (8th Cir. 2001)). In determining the substantive issue of whether an affirmative defense is legally sufficient, a court sitting in diversity must apply state law. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996). With respect to procedural issues, however, a court sitting in diversity must apply federal law. Id.

         III. DISCUSSION

         In considering whether to strike each affirmative defense, the Court will consider only those arguments that plaintiffs have asserted with respect to each individual affirmative defense. Both parties apply Iowa law in arguing substantive legal issues, and, for purposes of this motion, the Court will therefore consider Iowa law to govern those substantive legal issues that may arise.

         A. First Affirmative Defense

         Defendants' first affirmative defense asserts “fail[ure] to state a claim against [d]efendants upon which relief may be granted.” (Doc. 8, at 49). In support of their motion to strike this affirmative defense, plaintiffs state that “[l]egal insufficiency is not a proper affirmative defense under [Federal Rule of Civil Procedure] 8(c).” (Doc. 14, at 10). The Eighth Circuit Court of Appeals has stated as follows: “Pursuant to [Federal Rule of Civil Procedure 12(b)], the defense of failure to state a claim upon which relief can be granted may be asserted, at the option of the pleader, either in the pleader's answer or in a pre-answer motion.” Madewell v. Downs, 68 F.3d 1030, 1048 n.21 (8th Cir. 1995). The Eighth Circuit went on to characterize such a defense as an “affirmative defense” when raised in an answer. Id. Defendants brought the defense of failure to state a claim upon which relief may be granted in their answer, which, in the Eighth Circuit, is permissible. Plaintiffs' motion to strike is therefore denied as to defendants' first affirmative defense.

         B. Seventh (In Part), Eighth, and Thirty-Sixth Affirmative Defenses

         To the extent defendants have not withdrawn their seventh affirmative defense, the defense asserts that “[p]laintiffs' claims are barred, in whole or in part, by the principles set forth in the Restatement (Third) of Torts: Product[s] Liability, including . . . Section 4, Section 6 (including . . . §§ 6(c), and comment f) . . . and the comments thereto.” (Doc. 8, at 50). Defendants' eighth affirmative defense asserts that “[p]laintiffs' claims are barred, in whole or in part, by the principles set forth in the Restatement (Second) of Torts Section 388, Comment n and/or similar doctrines and principles contained in the Restatement (Third) of Torts: Products Liability.” (Id., at 51). Defendants' thirty-sixth affirmative defense states “[p]laintiffs' warranty-based claims are barred, in whole or in part, by [p]laintiffs' failure to satisfy all conditions precedent or subsequent to the enforcement of any such alleged warranties.” (Doc. 8, at 57).

         Plaintiffs move to strike the seventh affirmative defense and part of the eighth affirmative defense because, plaintiffs claim, the defenses are “conclusory and devoid of any factual support or context.” (Doc. 14, at 11). Plaintiffs do not elaborate on their assertion that the defenses are insufficient. Further, although plaintiff requests that the Court strike “part of [defendants'] eighth affirmative defense[ ], ” plaintiffs do not specify which part of the eighth affirmative defense plaintiffs want stricken. (Id.). With respect to the thirty-sixth affirmative defense, plaintiffs argue that the defense should be stricken because defendants “fail to mention which conditions precedent or subsequent were not met.” (Id., at 15).

         In resisting plaintiffs' motion, defendants explain why they believe the seventh affirmative defense, in relevant part, should not be stricken. (Doc. 243, at 8-11). Defendants specifically identify which portions of Sections Four, Six, and the Comments defendants contend are at issue, and defendants apply the facts of this case to the Restatement to further explain the applicability of the Sections. (See id., at 8-11). Likewise, defendants detail their theory of how Section 388 of the Restatement (Second) of Torts, as pled in the eighth affirmative defense, applies to the instant case, and defendants offer tailored assertions on how defendants intend to rely on Section 388 in defending this case. (See id., at 11-12). Defendants fail, however, to even mention the “similar doctrines and principles contained in the Restatement (Third) of Torts: Products Liability” to which the eighth affirmative defense alludes. (See id.; Doc. 8, at 51).

         Finally, with respect to their thirty-sixth affirmative defense, defendants explain their theory of how Iowa state law may impose conditions precedent on plaintiffs' warranty claims, defendants set forth the specific code provision upon which their theory is based, and defendants' resistance states that the defects of which plaintiffs allegedly should have provided defendants notice are those defects of which plaintiffs now complain. (Doc. 243, at 22).

         The Eighth Circuit has held that so long as a party raises its affirmative defenses “in a manner that does not result in unfair surprise, ” the affirmative defenses need not be stricken as a matter of course. Pictet, 477 F.3d at 623 (citations and internal quotation marks omitted). In First Union National Bank v. Pictet Overseas Trust Corp., the Eighth Circuit allowed an affirmative defense to stand where the defense was not properly pled, but the party relying on the defense made known its intent to rely on the defense by detailing the applicability of the defense in the party's briefs. Id. at 622-23. The Eighth Circuit so held because by the time summary judgment briefing was submitted, the party attempting to defeat the defense had known of the defense for more than one year, which, the Eighth Circuit determined, was “certainly a long enough period to preclude a claim of surprise.” Id. at 623 (citations omitted).

         Without reaching the issue of whether the seventh, eighth, and thirty-sixth affirmative defenses were properly pled in defendants' answer, the Court finds that the seventh affirmative defense, in relevant part, and the thirty-sixth affirmative defense have been detailed in defendants' resistance to the instant motion to such a degree that plaintiffs will not be able to credibly claim “unfair surprise” by the time the parties are due to submit their dispositive motions. Likewise, the eighth affirmative defense is detailed as to Section 388. The eighth affirmative defense is not explained, however, to the extent defendants purport to rely on “similar doctrines and principles contained in the Restatement (Third) of Torts: Products Liability.” (Doc. 8, at 51). Averring a general reliance on an entire Restatement, essentially to the extent the Restatement benefits the pleading party, is not sufficient to put an opposing party on notice as to what is being pled. That is, defendants cannot assert a general reliance upon the Restatement (Third) of Torts: Products Liability and expect plaintiffs-or the Court-to infer which Sections defendants intend to rely on. As such, the Court finds that the eighth affirmative defense has not been pled sufficiently to survive plaintiffs' motion to the extent the defense relies on “similar doctrines and principles contained in the Restatement (Third) of Torts: Products Liability.” (Doc. 8, at 51).

         By the time dispositive motions are due, plaintiffs will have had access to defendants' resistance to the instant motion for approximately seven months. (See Docs. 239, 243). The Court finds that this is sufficient time for plaintiffs to prepare a response to the affirmative defenses, to the extent the defenses were discussed in defendants' resistance. Moreover, even as of the filing of this Order, discovery has yet to conclude and, indeed, will remain open for approximately four months, which gives plaintiffs time to further investigate the defenses. Plaintiffs' motion is therefore denied as to the seventh affirmative defense, to the extent the seventh affirmative defense has not been withdrawn, denied as to the portion of the eighth affirmative defense that relies on “the principles set forth in the Restatement (Second) of Torts Section 388, comment n, ” granted as to the portion of the eighth affirmative defense that purports to rely on “similar doctrines and principles contained in the Restatement (Third) of Torts: Products Liability, ” (see Doc. 8, at 51), and denied as to the thirty-sixth affirmative defense.

         C. Ninth, Twenty-First, and Twenty-Second, Thirty-Fourth, and ...


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