Richard Greisberg v. Boston Scientific Corp ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-2364
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RICHARD GREISBERG,
Appellant
v.
BOSTON SCIENTIFIC CORPORATION
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-19-cv-12646)
District Judge: Honorable John M. Vazquez
____________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on April 27, 2022
Before: KRAUSE, BIBAS, and SCIRICA, Circuit Judges
(Opinion filed: April 28, 2022)
____________________________________
___________
OPINION*
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PER CURIAM
This is a product liability action concerning the Greenfield™ Vena Cava Filter (the
“Greenfield Filter”), a medical device manufactured by the appellee, Boston Scientific Cor-
poration.1 The appellant, Richard Greisberg, alleged in the operative second amended com-
plaint that in 2002, he was given a Greenfield Filter to protect against pulmonary embolism.
According to Greisberg, the filter began to tilt sometime after implantation, causing it to
penetrate the wall of the superior vena cava, thus exposing his organs to potential damage.
Greisberg claimed that Boston Scientific failed to provide adequate warnings about the risk
of migration, penetration, and premature death associated with the Greenfield Filter, in
violation of New Jersey’s Product Liability Act, N.J. Stat. Ann. § 2A:58C-4.2 The District
Court granted Boston Scientific’s motion to dismiss the second amended complaint. Greis-
berg appealed.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
The Greenfield Filter is subject to federal regulations and oversight by the Federal Drug
Administration (FDA), having received clearance under § 510(k) of the Medical Device
Amendment on November 8, 1990.
2
Greisberg has abandoned his other claims on appeal. Therefore, we will not consider
them. See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d
375, 398 (3d Cir. 1994).
2
We have jurisdiction under 28 U.S.C. § 1291.3 We exercise a plenary standard of re-
view. See Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). In reviewing a
dismissal under Rule 12(b)(6), “we accept all factual allegations as true” and “construe the
complaint in the light most favorable to the plaintiff.” Pinker v. Roche Holdings Ltd., 292
F.3d 361, 374 n.7 (3d Cir. 2002). “To 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.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). In addition to the complaint, a district court may consider “ex-
hibits attached to the complaint and matters of public record.” Pension Benefit Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
Under New Jersey law, a manufacturer of a product is liable for harm caused by a prod-
uct that is “not reasonably fit, suitable or safe for its intended purpose” if, as relevant here,
it “failed to contain adequate warnings or instructions.” N.J. Stat. Ann. § 2A:58C-2. When
the product at issue is a medical device, the manufacturer’s duty to warn applies to the
physician as a “learned intermediary” rather than to the patient himself.4 Hrymoc v. Ethi-
con, Inc., 249 A.3d 191, 217 (N.J. Super. Ct. App. Div. 2021). “If the warning or instruction
given in connection with a [device] has been approved or prescribed by the [FDA] . . . , a
rebuttable presumption shall arise that the warning or instruction is adequate.” N.J. Stat.
3
The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1332(a).
4
As the District Court noted, Greisberg did not allege that Boston Scientific marketed the
device directly to consumers. C.f. Perez v. Wyeth Labs. Inc., 734 A.2d 1245, 1257 (N.J.
1999) (holding that the learned intermediary doctrine does not apply to the direct market-
ing of drugs to consumers).
3
Ann. § 2A:58C-4. To overcome this presumption, a plaintiff must plead specific facts al-
leging “deliberate concealment or nondisclosure of after-acquired knowledge of harmful
effects, or manipulation of the post-market regulatory process[.]” Cornett v. Johnson &
Johnson, 48 A.3d 1041, 1056 (N.J. 2012) (citations and quotation marks omitted), abro-
gated on other grounds by McCarrell v. Hoffmann-La Roche, Inc., 153 A.3d 207 (N.J.
2017).
We agree with the District Court that Greisberg failed to state a claim because the warn-
ings provided by Boston Scientific in connection with the Greenfield Filter were adequate
as a matter of law. First, it is undisputed that the Greenfield Filter is subject to FDA over-
sight. Therefore, the warnings accompanying the filter are subject to the “super-presump-
tion” in § 2A:58C-4. See Kendall v. Hoffman-La Roche, Inc., 36 A.3d 541, 554 (N.J.
2012). Second, Greisberg does not allege that Boston Scientific deliberately concealed or
withheld known harmful effects associated with the Greenfield Filter, or that Boston Sci-
entific manipulated the post-market regulatory process. Rather, Greisberg alleges only that
the Directions for Use did not adequately instruct doctors to advise their patients to monitor
the position of the device over time. Therefore, the District Court correctly concluded that
Greisberg failed to plead facts sufficient to rebut the presumption.
We have considered Greisberg’s remaining arguments on appeal and conclude that they
are meritless. In particular, while he challenges the leniency afforded to him as a pro se
litigant and asserts that he was given improper advice from a law clerk, his allegations
against Boston Scientific nonetheless do not state a claim as a matter of law. Accordingly,
we will affirm.
4