THELEN

v.

SOMATICS, LLC

PART DEFENDANT SOMATICS’ MOTION TO DISMISS

This matter is before the Court on “Defendant Somatics, LLC’s Motion to Strike and Dismiss Plaintiff’s Complaint,” filed September 11, 2020.1 (Doc. 15). Plaintiff filed his response in opposition on September 25, 2020. (Doc. 16). After reviewing the motion, response, court file, and record, the Court finds as follows: Background2 From May 16, 2014 to July 27, 2016, Plaintiff Jeffrey Thelen underwent 92 sessions of Electroconvulsive Therapy (“ECT”) using the Thymatron System IV

Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara, J.). Analysis In its motion, Somatics presents the following arguments to dismiss Plaintiff’s claims: (1) Count I is preempted, (2) Count VII fails to meet the heightened pleading requirements of Rule 9, (3) Counts I, II, and VII fails to allege proximate cause, (4) Counts III, IV, and V fail to allege privity, (5) Count I is barred by the learned-intermediary doctrine, and (6) Count VI fails to state a claim under the NCPA. Preemption

Somatics first argues that Plaintiff’s negligence claim (Count I) is preempted by 21 U.S.C. § 360k(a). Plaintiff disagrees, and he instead argues that this statute does not preempt state law negligence claims for products – like the Thymatron device – approved via the 510(k) process.³ 21 U.S.C. § 360k(a) precludes states from implementing requirements “with respect to a [medical] device” that are “different from, or in addition to” FDA requirements. However, the Supreme Court has previously held that this statute does not preempt state law negligence claims for medical devices approved by the 510(k) process. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 500-02 (1996) (holding Florida negligence claims escape preemption because state requirements were not developed “with respect to” medical devices). As this decision remains binding case law, Plaintiff’s state law negligence claim (Count I) is not preempted. Rule 9 Pleading Requirements

Next, Somatics argues that Plaintiff’s fraudulent misrepresentation claim (Count VII) should be dismissed for failing to satisfy the pleading requirements of

Id. at 1315-16; Coulter v. ADT Security Servs., 744 Fed. App’x 615, 618 (11th Cir. 2018). “A contract is made at the place where the last act necessary to complete the contract is done.” Colkitt v. Oncology Servs. Int’l, Inc., No. 8:19-cv-2302-T-33AEP, 2019 WL 8273661, at *3 (M.D. Fla. Dec. 18. 2019) (citing Jemco, Inc. v. United Parcel Serv., Inc., 400 So. 2d 499, 500 (Fla. 3d DCA 1981)) (internal quotation omitted). In this case, Plaintiff alleges that he was prescribed ECT treatment and underwent all 92 sessions in Omaha, Nebraska. Taking the facts in light most favorable to the Plaintiff – as the Court is required to do at this stage – Counts III,

IV, and V are governed by Nebraska law. Nebraska law unequivocally does not require privity for breach of express or implied warranty claims. See Peterson v. N. Am. Plant Breeders, 218 Neb. 258, 264 (Neb. 1984). Somatics motion to dismiss on this ground is accordingly denied. Learned-Intermediary Doctrine Somatics also argues that Plaintiff’s negligence claim (Count I) should be dismissed under the learned intermediary doctrine. Plaintiff disagrees and argues

Count I falls under Nebraska law, which permits this claim to proceed. The Court finds Count I – like Counts III, IV, and V – is governed by Nebraska Law. Under the most significant relationship test – applied by Florida courts to ascertain which law applies to tort claims – Nebraska bears the most significant relationship with this claim. See Trumpet Vine Invs., N.V. v. Union Capital Partners I, Inc., 92 F. 3d 1110, 1115-16 (11th Cir. 1996); see also Mezroub v. Capella, 702 So. 2d 562, 565 (Fla. 2d DCA 1997) (“The place of injury still determines which state's law applies, unless some other state has a more ‘significant relationship’ to the issue”). Somatics’ argument that Count I is barred by the learned intermediary doctrine under Florida law is accordingly denied. Nebraska Consumer Protection Act Somatics contends Plaintiff has failed to state a claim under Nebraska’s Consumer Protection Act. Specifically, Somatics argues the NCPA does not provide for a private right of action for Plaintiff’s claims. In Plaintiff’s response, he concedes that this cause of action should be dismissed. The motion is therefore granted as to this ground, and Count VI is dismissed with prejudice and should not be refiled. Punitive Damages Lastly, Somatics argues Plaintiff’s prayer for punitive damages should be dismissed. If Nebraska law applies to this claim, punitive damages are not permitted. See State ex rel Cherry v. Burns, 258 Neb. 216, 226 (Neb. 1999). On the other hand, if Florida law applies, Plaintiff may be able to pursue punitive damages in certain circumstances. See W.R. Grace & Co.-Conn. v. Waters, 638 So. 2d 502, 503 (Fla. 1994). Under Florida law, courts are to apply the most significant relationship test to ascertain which law governs punitive damages. See Krause v. Novartis Pharms.

Corps., 926 F. Supp. 2d 1306, 1309-10 (N.D. Fla. 2013). Pursuant to this test, courts should consider the following factors: “(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.” Id. at 1309 (internal quotation omitted). The first factor – the place where the injury occurred – typically determines which law applies. Id. However, “[o]ther factors may combine to outweigh the place of injury as a controlling consideration.” Bishop v. Fla. Specialty Paint, Co., 389 So. 2d 999, 1001 (Fla. 1980).

These other factors include: “(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.” Id. at n.1 (quoting Restatement (Second) of Conflict of Laws § 6 (1971)).

Here, the Court finds Florida law should be applied to punitive damages. Some factors weigh in favor of the application of Nebraska law – the injury occurred in Nebraska, Plaintiff is a Nebraska resident, and the relationship between the parties is centered in Nebraska. However, the remaining factors outweigh these considerations. Somatics is a Florida corporation and the actions for which Plaintiff seeks punitive damages – marketing, mislabeling, and distributing the Thymatron device – presumably occurred in Somatics’ headquarters in Florida. Furthermore, Florida punitive damages law is “designed to punish the tortfeasor” and deter wrongful conduct. Krause, 926 F. Supp. 2d at 1310-11. “[W]hen the primary purpose of the tort rule involved is to deter or punish misconduct, the place where the conduct occurred has peculiar significance.” Id. at 1311 (quoting Restatement (Second) Conflict of Laws § 145, cmt. e). Given that Florida’s punitive damages law is intended to punish misconduct, the Court finds that this consideration weighs heavily in favor of the application of Florida law to the punitive damages claim. See id. (applying New Jersey punitive damages law to pharmaceutical company with its principle place of business in New Jersey for allegedly mislabeling drugs sold, taken, and injuring Plaintiff outside New Jersey); see also Dopson-Troutt v. Novartis Pharm. Corp., No. 8:06-cv-1708-T-24EAJ, 2013 WL 3808205, at *2 (M.D. Fla. July 22, 2013) (same); see also Chiles v. Novartis Pharm. Corp., 923 F. Supp. 2d 1330, 1333 (M.D. Fla. 2013) (same). Because Florida law applies, Plaintiff may be able to pursue punitive damages. Punitive damages in Florida are warranted “when a defendant engages in conduct which is fraudulent, malicious, deliberately violent or oppressive, or committed with such gross negligence as to indicate a wanton disregard for the rights of others.” W.R. Grace & Company-Conn. V. Waters, 638 So. 2d 502, 503 (Fla. 1994). Plaintiffs allegations are sufficient to state a claim for punitive damages. Somatics’ request to dismiss punitive damages is, therefore, denied. Accordingly, it is

ORDERED, ADJUDGED, and DECREED: (1) “Defendant Somatics, LLC’s Motion to Strike and Dismiss Plaintiff’s Complaint” (Doc. 15) is hereby GRANTED IN PART and DENIED IN

PART.

(2) The motion is GRANTED to the extent that Count VI is DISMISSED with prejudice. (3) The motion is FURTHER GRANTED to the extent that Count VII is DISMISSED, with leave to amend. (4) The motion is otherwise DENIED. (5) Plaintiff is directed to file an amended complaint that corrects the deficiencies identified in this Order on or before March 19, 2021. Failure to file an amended complaint as directed will result in this Order becoming a final judgment as to Count VII. See Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F. 3d 707, 719-20 (11th Cir. 2020). DONE and ORDERED in Chambers, in Tampa, Florida, this 26th day of February, 2021.

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-TOMBARBER i (sssi(‘“‘—s:sts~™S

UNITED STATES DISTRICT JUDGE