IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40183

Summary Calendar

RICARDO A. RODRIGUEZ, 

 Plaintiff - Appellant

v.

AMERICAN MEDICAL SYSTEMS, INCORPORATED, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:12-CV-330

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

Plaintiff Ricardo Rodriguez appeals from the district court’s dismissal of 

his state law products liability, deceptive trade practices and breach of contract 

claims against American Medical Systems, Inc. (“AMS”), the manufacturer of 

medical devices. We affirm.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 31, 2014

Lyle W. Cayce

Clerk

 

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I. Factual and Procedural Background

In February 2012, Rodriguez filed suit in Texas state court against 

defendants AMS and Dr. Henry E. Ruiz. According to Rodriguez’s pleadings, 

Dr. Ruiz implanted Rodriguez with a penile inflatable prosthesis called the 

“AMS 700 MS.” AMS designed and manufactured the AMS 700 MS. Rodriguez 

alleges that the implant has not functioned properly and is causing him pain

and disfiguration. The claims against Dr. Ruiz were dismissed in Texas state 

court. Subsequently, AMS removed the case to the Southern District of Texas 

on the basis of diversity jurisdiction. 

Rodriguez asserts three claims against AMS: (1) products liability claims

based on defective design and manufacturing; (2) violations of the Texas 

Deceptive Trade Practices Act (“DTPA”); and (3) breach of contract. AMS 

moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that 

the claims against AMS are preempted by the Medical Device Amendments

(“MDA”) to the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 360k(a),

and that Rodriguez failed to state a claim upon which relief can be granted. In 

support of its preemption arguments, AMS provided documentary evidence 

that the FDA had approved the AMS 700. Because it looked beyond the 

pleadings to this evidence, the district court converted the part of the motion 

regarding the claims subject to preemption, specifically the products liability 

and DTPA claims, into a motion for summary judgment and gave Rodriguez 

an opportunity to respond. The court considered the breach of contract claim 

under Rule 12(b)(6). The district court granted summary judgment to AMS on

the products liability claims and DTPA claims under Rule 56, and dismissed 

the breach of contract claim under Rule 12(b)(6). Rodriguez appeals.

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II. Discussion

We review both the district court’s grant of summary judgment and the 

dismissal under Rule 12(b)(b)(6) de novo. See Bass v. Stryker Corp., 669 F.3d 

501, 506 (5th Cir. 2012) (motion to dismiss); Lofton v. McNeil Consumer & 

Specialty Pharm., 672 F.3d 372, 375 (5th Cir. 2012) (summary judgment). 

Questions of law regarding preemption are also reviewed de novo. See Lofton, 

672 F.3d at 375.

A. Preemption

“In response to the concern that state-law governance of medical devices 

was inadequate, Congress passed the MDA, giving the FDA authority to 

regulate medical devices and expressly preempting certain state regulations.” 

Bass, 669 F.3d at 506; see Riegel v. Medtronic, Inc., 552 U.S. 312, 315-16 (2008); 

21 U.S.C. § 360k(a). A state law tort claim to recover for injuries allegedly 

caused by a medical device is preempted if two requirements are met: (1) “the 

Federal Government has established requirements applicable to [the device]; 

and (2) the claims are based on state law requirements that are different from, 

or in addition to the federal ones, and that relate to safety and effectiveness.” 

Bass, 669 F.3d at 507 (internal quotation marks omitted) (quoting Riegel, 552 

U.S. at 321-22); see also 21 U.S.C. § 360k(a)(1). However, “§ 360k does not 

prevent a State from providing a damages remedy for claims premised on a 

violation of FDA regulations; the state duties in such a case ‘parallel,’ rather 

than add to, federal requirements.” Riegel, 552 U.S. at 330; see Bass, 669 F.3d 

at 509. 

The implant at issue in this case is a Class III medical device under 

federal law. Class III devices receive the most federal oversight. See Riegel, 

552 U.S. at 317; Bass, 669 F.3d at 506. Class III devices that are approved 

through the FDA’s rigorous pre-market approval process (“PMA”) 

automatically satisfy the “federal requirements” prong of the preemption 

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analysis. Riegel, 552 U.S. at 322-23; Bass, 669 F.3d at 507. “[T]he FDA may 

grant premarket approval only after it determines that a device offers a 

reasonable assurance of safety and effectiveness.” Riegel, 552 U.S. at 323 

(citing 21 U.S.C § 360e(d)). After PMA review and approval, the device “must 

be made with almost no deviations from the specifications in its approval 

application, for the reason that the FDA has determined that the approved 

form provides a reasonable assurance of safety and effectiveness.” Id. Here, 

AMS provided a letter from the FDA and a supporting affidavit from one of its 

employees indicating that the AMS 700 MS pump received FDA approval 

through the product development protocol (“PDP”) provided by 21 U.S.C. 

§ 360e(f), rather than through the most rigorous PMA process. Rodriguez 

makes no argument that the PDP and PMA procedures should be treated 

differently under the preemption analysis. See Betterton v. Evans, 351 F. Supp. 

2d 529, 534-35 (N.D. Miss. 2004) (describing the PDP and PMA processes and 

concluding that the preemption analysis for each is the same). Further, the 

MDA provides that a device which has been approved through the PDP process 

“shall be considered as having [PMA] approval.” 21 U.S.C. § 360e(f)(1); see also

21 C.F.R. § 814.19 (“A class III device for which a product development protocol 

has been declared completed by the FDA under this chapter will be considered 

to have an approved PMA.”). Thus, we assume that a device which has been 

approved through the PDP process meets the federal requirements prong of 

the preemption analysis. 

Rodriguez argues that summary judgment was inappropriate because a 

genuine issue of material exists as to whether the implant used in his surgery

was in fact approved by the FDA. We agree with the district court that there 

is no genuine dispute of fact whether the AMS 700 MS received FDA approval 

through the PDP process. The 2006 letter provided by AMS is printed on FDA 

letterhead, is supported by the affidavit of an AMS employee, and clearly states 

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that the AMS 700 MS had received PDP approval. Rodriguez argues that the 

letter reflecting FDA approval is a supplemental letter, rather than an initial 

approval letter, and mentions the specific AMS 700 MS only in parentheses. 

He argues that the reference to the AMS 700 MS model could have been a 

mistake or that the letter could have been falsified, and that a jury could find 

that this particular model was never approved by the FDA. However, 

Rodriguez provides no evidence contradicting the FDA letter. His arguments 

to the contrary are purely speculative and raise no genuine dispute of fact. 

Because the PDP approval establishes that there are federal 

requirements applicable to the implant, Rodriguez’s claims survive preemption 

only if his state claims parallel the federal requirements. See Riegel, 552 U.S. 

at 300; Bass, 669 F.3d at 509. The district court granted summary judgment 

to AMS on Rodriguez’s products liability and DTPA claims because it 

concluded that Rodriguez’s complaint was too vague and conclusory to state 

parallel claims under the applicable law. We agree. 

Rodriguez’s complaint fails to meet the standards for pleading parallel 

design or manufacturing defect claims. In Bass, we held that “if a plaintiff 

pleads that a manufacturer of a Class III medical device failed to comply with 

either the specific processes and procedures that were approved by the FDA or 

the [FDA’s Current Good Manufacturing Practices] and that this failure 

caused the injury, the plaintiff will have pleaded a parallel claim.” Bass, 669 

F.3d at 512; see also Wolicki-Gables v. Arrow Int’l, Inc., 634 F.3d 1296, 1301-

02 (11th Cir. 2011) (affirming summary judgment but stating that a complaint 

is adequate if it “set[s] forth any specific problem, or failure to comply with any 

FDA regulation that can be linked to the injury alleged” (internal quotation 

marks omitted)); In re Medtronic, 623 F.3d 1200, 1207 (8th Cir. 2010) (noting 

that a plaintiff must plead that the manufacturer “violated a federal 

requirement specific to the FDA’s PMA approval of th[e] Class III device” and 

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concluding that classwide claims of generic manufacturing defects could not 

survive a motion to dismiss). Bass addressed a claim that an FDA-approved 

Class III hip implant malfunctioned because of impurities in the 

manufacturing process. 669 F.3d at 509. We held that the plaintiff did state 

parallel claims where the complaint specified which FDA regulations were 

violated in the manufacturing process, alleged that the manufacturer had 

received a warning letter from the FDA regarding the manufacturing defect, 

and eventually recalled the implant due to the defect. Bass, 669 F.3d at 510. 

By contrast, in Funk we addressed a similar claim regarding the same hip 

implant but held that the plaintiff’s pleadings were too conclusory to state a 

parallel claim. See Funk v. Stryker Corp., 631 F.3d 777, 782 (5th Cir. 2011). 

Specifically, we noted that Funk’s complaint did not specify the manufacturing 

defect, did not specify a causal connection between a failure of the 

manufacturing process and a specific defect in the process that caused the 

personal injury, and did not specify how the process deviated from the FDA

approved manufacturing process. Id. 

Applying this case law, it is clear that Rodriguez fails to state parallel 

manufacturing or design defect claims. Rodriguez’s complaint does not plead 

a violation of any federal requirement relating to design or manufacturing of 

the implant, either those specific to the AMS 700 MS or those generally 

applicable to the manufacturing of medical devices, and he cites no facts 

supporting a finding of any such violation. He fails to allege a specific defect 

in the manufacturing process or design, any deviation from the FDA-approved 

design or manufacturing processes, or any causal connection between a 

violation of federal requirements and his injuries. Thus, he has failed to plead 

a parallel claim. See Funk, 631 F.3d at 782. 

Rodriguez likewise fails to plead a parallel DTPA claim. Construed 

liberally, Rodriguez’s DTPA claim alleges that representations in AMS 

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“brochures and literature” promised a certain performance that did not occur, 

and constitute a “false, misleading, or deceptive act or practice” and an 

“unconscionable action or course of action” under the DTPA. See Tex. Bus. & 

Com. Code §§ 17.50(a), 17.46(b), 17.45(5). However, Rodriguez fails to allege 

whether or how AMS’s marketing materials deviated from FDA-approved 

requirements. Therefore, he fails to plead a parallel DTPA claim. See Bass, 

669 F.3d at 515 (holding that DTPA claim premised on a “marketing defect” 

was preempted where the plaintiff did not plead specific facts as to how the 

marketing violated FDA requirements).

B. Breach of Contract

Rodriguez also argues that the district court incorrectly dismissed his 

breach of contract claim under Rule 12(b)(6). Rodriguez primarily argues that 

AMS’s motion to dismiss the claim should have been converted to a motion for 

judgment on the pleadings under Rule 12(c), because it was filed after AMS 

filed an answer to the petition and a response to a motion for remand. 

However, a “motion for judgment on the pleadings under Rule 12(c) is subject 

to the same standard as a motion to dismiss under Rule 12(b)(6).” Doe v. 

MySpace Inc., 528 F.3d 413, 418 (5th Cir. 2008). Thus, even if there was error, 

there is no cause to reverse on this basis. 

Rodriguez next argues that the district court erred by dismissing his 

breach of contract claim for failure to state a claim. In his briefing, Rodriguez 

fails to cite a single case regarding breach of contract claims in Texas. 

However, even if we consider the claim despite this inadequate briefing, we 

conclude that it was correctly dismissed. In Texas, the first essential element 

of a breach of contract action is the existence of a valid contract. See Valero 

Mktg. & Supply Co. v. Kalama Int’l, L.L.C., 51 S.W.3d 345, 351 (Tex. App. 

2001); Smith Int’l, Inc. v. Egle Grp., LLC, 490 F.3d 380, 387 (5th Cir. 2007). 

Rodriguez’s complaint does not identify any contract between AMS and 

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Rodriguez. He merely alleges that the implant did not perform as provided in 

AMS’s “brochures and literature” and as stated by Dr. Ruiz. However, 

Rodriguez does not allege how the advertising or promotional materials 

created a valid and enforceable contract, does not describe the terms of any 

such contract, and does not explain how any statements made by Dr. Ruiz 

could have given rise to a contract between AMS and Rodriguez. This claim 

was thus properly dismissed. 

III. Conclusion

For the foregoing reasons, the judgment of the district court is 

AFFIRMED. 

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