AGEE v. ALPHATEC SPINE INC LLC (2018)

The plaintiffs in this medical products liability action allege injuries from the surgical use of defendants’ bone-growth stimulant PureGen without their informed consent.

Defendant Alphatec Spine, Inc., moved to dismiss, arguing—among other things—that federal and Ohio law preempted the plaintiffs’ claims. Though the plaintiffs amended their complaint in an effort to address Alphatec’s arguments, the district court granted Alphatec’s motion to dismiss with prejudice for two reasons. First, it characterized the amended complaint as “a rambling, disorganized mess․ composed primarily of conclusory assertions” that failed to satisfy pleading standards under Federal Rules of Civil Procedure 8 and 9. Second, the court decided that all of the plaintiffs’ claims were either impliedly preempted by the Federal Food, Drug, and Cosmetic Act or barred by the Ohio Products Liability Act (“OPLA”).¹ The plaintiffs ask us to reverse and remand, but they forfeited key arguments raised by this appeal.

The plaintiffs neglected to respond to Alphatec’s preemption arguments when appropriate in district court. Though their response described the doctrine of implied preemption, their brief offered no analysis challenging its applicability to their claims. Their response instead analyzed express preemption, which Alphatec never invoked. Nor did the plaintiffs confront Alphatec’s other argument—that the OPLA bars their common-law negligence claim. They thus forfeited consideration of those issues on appeal. See, e.g., Notredan, L.L.C. v. Old Republic Exch. Facilitator Co., 531 Fed.Appx. 567, 569 (6th Cir. 2013) (holding that a plaintiff-appellant forfeited an argument on appeal by not providing a substantive response to the issue in its opposition to the defendant-appellee’s motion to dismiss); see also United States v. Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir. 2009) (litigants must present more than “conclusory allegations and perfunctory statements, unaccompanied by citations or some effort at legal argument” to preserve an issue for appeal).

True, the plaintiffs preserved the issue of whether their complaint meets federal pleading standards. Yet, even if we agreed that the district court abused its discretion in that regard, the plaintiffs’ forfeiture of any challenge to the court’s preemption decisions fully determines this appeal inasmuch as the forfeited arguments encompass all of the plaintiffs’ causes of action.

We therefore AFFIRM the judgment of the district court.

FOOTNOTES

1.   Co-defendant Parcell Laboratories moved to dismiss for lack of personal jurisdiction. The district court mooted this issue when it dismissed the suit generally.

PER CURIAM.