United States District Court, S.D. West Virginia, Charleston Division
IN RE C.R. BARD, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
Blasingame, Burch, Garrard & Ashley, P.C. Civil Action No. 2:17-cv-04133 THIS DOCUMENT RELATES TO Morrison
R. GOODWIN UNITED STATES DISTRICT JUDGE.
the court is the Motion to Dismiss the Complaint, filed by
the defendant Blasingame, Burch, Garrard & Ashley, P.C.
(“BBGA”) on October 30, 2017 (“Motion to
Dismiss”). [ECF No. 22]. On November 13, 2017, the
plaintiff Danna Morrison filed a Brief in response, opposing
the Motion (“Response”). [ECF No. 27]. BBGA filed
a Reply on November 20, 2017 (“Reply”). [ECF No.
29]. The matter is ripe for adjudication. Also before the
court is the Joint Motion for Expedited Consideration of the
Motion to Dismiss. [ECF No. 28]. The Joint Motion for
Expedited Consideration is GRANTED and, for
the reasons stated below, the Motion to Dismiss is
plaintiff in this case previously instituted a civil action
against Covidien, C.R. Bard, and other related companies
concerning the use of transvaginal surgical mesh to treat
pelvic organ prolapse and stress urinary incontinence
(hereinafter, the “MDL case”). Compl. ¶ 5.
That case resided in one of the seven MDLs assigned to me by
the Judicial Panel on Multidistrict Litigation. See
Morrison v. C.R. Bard, Inc. et al., 2:11-cv-00960 (S.D.
W.Va. 2011); Transfer Order [ECF No. 18]. The plaintiff
retained the services of BBGA to represent her interests in
the MDL case. Compl. ¶ 7. On November 16, 2016, I
granted the parties' joint motion to dismiss, which
represented that the parties compromised and settled all
claims, and dismissed the MDL case with prejudice. At the
time, the plaintiff was a debtor in an active bankruptcy
case. In re Morrison, No. 1:11-bk-11426-NWW
(Bankr.E.D.Tenn. 2011); Memo. in Supp. Mot. to Dismiss 4-5,
instant case arises from the plaintiff's claim that BBGA
made certain false representations in an attempt to coerce
her into accepting the settlement of her claims in the MDL
case. Compl. ¶ 12. Based on these misrepresentations,
the plaintiff states that she accepted the proposed
settlement for substantially less than she would have agreed
to settle voluntarily. Compl. ¶13. Seeking relief, the
plaintiff filed her original complaint in Tennessee on May
17, 2017, advancing five counts: (I) professional negligence;
(II) negligent misrepresentations; (III) breach of contract;
(IV) breach of common law duty of good faith and fair
dealing; and (V) breach of fiduciary obligations. Compl.
¶¶ 15-21. On October 6, 2017, the Judicial Panel on
Multidistrict Litigation transferred the case here.
See Transfer Order [ECF No. 18].
now moves to dismiss the complaint under Federal Rules of
Civil Procedure 12(b)(1) and (b)(6), arguing that plaintiff
lacks standing and, in the alternative, that she failed to
state a claim upon which relief can be granted.
United States Constitution limits the jurisdiction of federal
courts to “Cases” and
“Controversies.” U.S. Const. art. III, §2.
The doctrine of standing gives this limitation meaning,
requiring a plaintiff to demonstrate: “(1) an injury in
fact; (2) a sufficient causal connection between the injury
and the conduct complained of; and (3) a likelihood that the
injury will be redressed by a favorable decision.”
Wikimedia Foundation v. National Security Agency,
857 F.3d 193, 207 (4th Cir. 2017) (citing Susan B.
Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014)).
other hand, a motion to dismiss filed under Rule 12(b)(6)
tests the legal sufficiency of a complaint or pleading.
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.
2008). A pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). This standard
“does not require ‘detailed factual allegations,
' but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
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.'”
Id. (quoting Twombly, 550 U.S. at 570). To
achieve facial plausibility, the plaintiff must plead facts
allowing the court to draw the reasonable inference that the
defendant is liable, moving the claim beyond the realm of
mere possibility. Id. Mere “labels and
conclusions” or “formulaic recitation[s] of the
elements of a cause of action” are insufficient.
Twombly, 550 U.S. at 555.
motion to dismiss focuses primarily on the causal connection
factor of the standing doctrine. In order to show a causal
connection, a plaintiff must establish that his injury is
“fairly . . . trace[able] to the challenged action of
the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the
court.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992) (quoting Simon v. E. Ky. Welfare
Rights Org., 426 U.S. 26, 41-42 (1976)).
noted above, the crux of the plaintiff's complaint is
that but-for the alleged misconduct of BBGA, she would not
have agreed to the proposed settlement of her claims in the
MDL case. As a result, the plaintiff alleges that she
suffered harm because she believes her claims settled for
“substantially less” than she would have agreed
to settle voluntarily. Compl. ¶ 15. In moving to
dismiss, BBGA argues that the plaintiff lacks standing
because she did not have the authority to accept or reject
the proposed settlement agreement in the MDL case. At the
pertinent time, BBGA states, the plaintiff was a debtor in an
active bankruptcy case. According to BBGA, the Trustee
representing the interests of the plaintiff's bankruptcy
estate had the sole authority to pursue settlement or a trial
of the plaintiff's underlying claims in the MDL case.
Because the Trustee authorized the settlement in the MDL
case, only the Trustee - a third party not before the court -
could have caused the plaintiff's alleged injury in this
case. As a result, BBGA asserts that the plaintiff lacks
standing in this case because she cannot establish a causal
connection between her injury and the challenged conduct of