United States District Court, N.D. Georgia, Atlanta Division
MICHAEL L. BROWN UNITED STATES DISTRICT JUDGE
the Court are Defendant Olympus Corporation's and
Defendant Olympus Medical Systems Corporation's Motions
to Dismiss for Lack of Personal Jurisdiction (Dkts. 27, 28)
and all Defendants' Motions to Dismiss for Failure to
State a Claim. (Dkts. 29, 30, 31, 32).
Caryl Quashie is a resident of the State of Georgia. Dkt. 21
at ¶ 10. She alleges that she suffered a serious
bacterial infection because of a defective medical instrument
known as a duodenoscope that was used on her during a
procedure at Emory Johns Creek Hospital in Johns Creek,
Georgia. Id. at ¶¶ 11-12. Plaintiff filed
her complaint against Olympus America Inc., Olympus
Corporation of the Americas, Olympus Medical Systems
Corporation, and Olympus Corporation claiming that each was
responsible for the design, testing, manufacturing,
marketing, sale, and distribution of the defective
duodenoscope. See id. at ¶¶ 8-43.
Defendants Olympus Medical Systems Corporation and Olympus
Corporation - both incorporated and headquartered in Japan -
move to dismiss for lack of personal jurisdiction. (Dkts. 27,
28). All Defendants move to dismiss the Amended Complaint for
failure to state a claim. (Dkts. 29, 30, 31, 32).
medical device at issue is the Olympus TJF-Q180V
Duodenoscope, an endoscope equipped with a camera and light
that a doctor can feed through a patient's mouth, throat,
and stomach into the duodenum to view the patient's
liver, gallbladder, pancreas, and bile ducts. Dkt. 21 at
¶¶ 1, 46-49. Duodenoscopes are reusable from
patient to patient, but must be adequately cleaned to avoid
infection. Id. at ¶¶ 49-50. Earlier
versions of the Olympus duodenoscopes were designed with an
open channel into which the doctor inserted a guidewire and
catheter. Id. at ¶¶ 51-52. Olympus
enclosed this channel on the Q180V by using an O-ring that
allegedly prevents the leakage of tissue and fluids into the
channel. Id. at ¶¶ 52-57.
Plaintiff contends that Olympus used this design change to
market, advertise, and promote the Q180V as safer, with a
lower risk of microbial infection. See id. at
alleges that the closed-channel design was defective in
several ways. She claims, for example, that the O-ring
allowed contaminants to leak into the channel. Id.
at ¶ 57. She further claims that the design of the Q180V
has crevices that are too small to clean or sanitize, but
large enough to trap microbial contaminants. Id. at
¶ 59. Finally, Plaintiff claims that Defendants created
a reprocessing protocol intended to clean the Q180V between
uses that did not, in fact, clean the instrument to prevent
the spread of infection from patient to patient. Id.
at ¶¶ 61-63. Plaintiff alleges that, because of
these defects, the Q180V put patients at an unreasonable
increased risk of infection. See, e.g.,
id. at ¶ 64.
alleges that, by at least May 2012, Olympus knew the Q180V
was defective and increased a patient's risk of
infection. Id. at ¶ 67. And, by late 2012,
Defendants knew that the Q180V was linked to outbreaks of
antibiotic-resistant infections in the United States and
Europe. Id. at ¶ 68. According to Plaintiff,
the FDA eventually became aware of the risks posed by the
Q180V and required Defendants to fix the defects and modify
the reprocessing protocol. Id. at ¶ 70.
Defendants did so. Id.
underwent a medical procedure at the Johns Creek hospital on
August 7, 2015, during which the doctor allegedly used a
Q180V scope. Id. at ¶ 12. Seventeen days later,
Plaintiff was hospitalized. She was hospitalized again just
three days later, this time diagnosed with an
antibiotic-resistant infection. Id. at ¶ 13.
Plaintiff claims she got the life-threatening infection from
the Q180V that was used during her procedure. Id.
Plaintiff asserts claims of (1) negligence (id. at
¶¶ 74-87); (2) strict products liability
(id. at ¶¶ 88-120); (3) failure to warn
(id. at ¶¶ 121-136); (4) fraudulent
misrepresentation (id. at ¶¶ 137-153); (5)
fraudulent concealment (id. at ¶¶
154-169); (6) negligent misrepresentation (id. at
¶¶ 170-181); and (7) fraud and deceit (id.
at ¶¶ 182-214).
filed her Complaint on August 15, 2017 and an Amended
Complaint on September 19, 2017. (Dkts. 1, 21). Defendant
Olympus Corporation and Olympus Medical Systems Corporation
(hereinafter “Olympus Corp.” and “OMSC,
” respectively) filed motions to dismiss under Federal
Rule of Civil Procedure 12(b)(2), arguing that they are not
subject to personal jurisdiction in this Court. (Dkts. 27,
28). These Defendants - as well as the other two Olympus
defendants - also filed motions to dismiss under Fed.R.Civ.P.
12(b)(6). (Dkts. 29, 30, 31, 32). Briefing is now complete
and, following oral argument, the Court finds the matter is
ripe for resolution.
Motions to Dismiss for Lack of Jurisdiction
a diversity case. Before a federal court sitting in such a
case can exercise personal jurisdiction over a non-resident
defendant, the Court must determine that it has jurisdiction
under (1) the long-arm statute of the state in which it sits
and (2) the Due Process Clause of the United States
Constitution. Future Tech. Today, Inc. v. OSF Healthcare
Sys., 218 F.3d 1247, 1249 (11th Cir. 2000). “A
plaintiff seeking the exercise of personal jurisdiction over
a nonresident defendant bears the initial burden of alleging
in the complaint sufficient facts to make out a prima facie
case of jurisdiction.” Diamond Crystal Brands, Inc.
v. Food Movers Int'l, Inc., 593 F.3d 1249, 1257
(11th Cir. 2010) (quoting United Techs. v. Mazer,
556 F.3d 1260, 1274 (11th Cir. 2009)). If a defendant does
not challenge the complaint's jurisdictional allegations
through affidavit evidence, the Court “accepts the
allegations in the complaint as true for purposes of
resolving the jurisdictional issue.” Posner v.
Essex Ins. Co., 178 F.3d 1209, 1215 (11th Cir. 1999). In
assessing jurisdiction, the Court must draw all reasonable
inferences in the plaintiff's favor. Consol. Dev.
Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291
(11th Cir. 2000).
Jurisdiction Under Georgia's Long Arm
long-arm statute provides, in relevant part:
A court of this state may exercise personal jurisdiction over
any nonresident or his or her executor or administrator, as
to a cause of action arising from any of the acts, omissions,
ownership, use, or possession enumerated in this Code
section, in the same manner as if he or she were a resident
of this state, if in person or through an agent, he or she:
(1) Transacts any business within this state;
(2) Commits a tortious act or omission within this state,
except as to a cause of action for defamation of character
arising from the act;
(3) Commits a injury in this state caused by an act or
omission outside this state if the tortfeasor regularly does
or solicits business, or engages in any other persistent
course of conduct, or derives substantial revenue from goods
used or consumed or services rendered within this state . . .
O.C.G.A. § 9-10-91. Georgia law governs the breadth and
application of its long-arm statute. Diamond Crystal
Brands, Inc., 593 F.3d at 1258. As a result, when
applying the Georgia long-arm statute, this Court must
construe it as the Georgia Supreme Court would. Id.
Jurisdiction under the Georgia long-arm statute is not
“coextensive with procedural due process.”
Id. Instead, the state statute “imposes
independent obligations that a plaintiff must establish for
the exercise of personal jurisdiction that are distinct from
the demands of due process.” Id. at
Plaintiff has alleged that the Japanese Defendants - Olympus
Corp. and OMSC - have “transacted and conducted
business in the State of Georgia” and have
“derived substantial revenue from goods and products
used in the State of Georgia.” Dkt. 21 at ¶¶
32, 33, 39, 40. Plaintiff also alleges that these
two defendants are in the “business of creating,
designing, researching, testing, manufacturing, labeling,
advertising, marketing, promoting, selling and distributing
medical equipment, including but not limited to duodenoscopes
and the subject Q180V Scopes, into the stream of commerce for
use by the public, including the Plaintiff.”
Id. at ¶¶ 31, 38. Finally, Plaintiff
alleges that Olympus Corp and OMSC “expected or should
have expected [their] acts to have ...