IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ALISON SAPP WHITE, 

Plaintiff,

vs. CASE NO. 3:10-cv-102/RS-EMT

BREG, INC., a Delaware Corporation, 

I-FLOW CORPORATION, a Delaware 

Corporation, 

Defendants.

_________________________________________/

ORDER

Before me are Defendant BREG’s Motion to Dismiss (Doc. 13) and Plaintiff’s 

Response (Doc. 17). 

I. Standard of Review

To survive a motion to dismiss, a complaint must contain sufficient facts, which

accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 

S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569, 127 S. Ct. 

1955, 1974 (2007). Granting a motion to dismiss is appropriate if it is clear that no relief 

could be granted under any set of facts that could be proven consistent with the 

allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 

2229, 2232 (1984). In making this determination, the court must accept all factual 

allegations in the complaint as true and in the light most favorable to Plaintiff. 

Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 2182 (2003).
II. Background

In April and June 2006, Plaintiff underwent two arthroscopic shoulder surgeries in 

Pensacola, Florida. Plaintiff alleges that two pain pumps, one for each surgery, were 

improperly used and resulted in damage to Plaintiff’s shoulder. Plaintiff has not 

specifically identified the manufacturer(s) of the pain pumps used in connection with the 

two surgeries. However, Plaintiff contends that the pain pumps were manufactured by at 

least one, if not both, of the Defendants.1 In other words, there are three possibilities: (1) 

that Defendant BREG manufactured none of pain pumps at issue but rather Defendant IFLOW manufactured both; (2) that Defendant BREG manufactured one pain pump and 

Defendant I-FLOW manufactured one pain pump; or (3) that Defendant BREG 

manufactured both pain pumps. 

III. Analysis 

The main thrust of Defendant BREG’s argument is that Plaintiff’s claim for relief 

should not allowed because Plaintiff failed to specifically identify the manufacturer(s) of 

the two pain pumps. Defendant BREG likens this to a “shotgun” approach to pleading 

that is forbidden by the Federal Rules of Civil Procedure. 

Of the several pain pump manufacturers, Plaintiff has narrowed this case down to 

two. This is not an example of casting an impermissibly wide net to catch the 

unsuspecting offender. Rather, Plaintiff has shown that as between two defendants, it is 

plausible that Defendant BREG is liable for the harm that was suffered. See, e.g.,

 

1

In the Amended Complaint, Plaintiff uses the singular term “Defendants” in the factual allegations and does not

distinguish between the two named Defendants. Defendant BREG correctly points out that both Defendants could 

not have been the manufacturer of each pain pump in question as both Defendant BREG and Defendant I-FLOW are 

separate entities. 
Jozwiak v. Stryker Corp., 2010 U.S. Dist. LEXIS 17221 (M.D. Fla. 2010) (finding 

plausible a claim for pain pump related injury where plaintiff named multiple defendants 

but did not specifically identify the pain pump manufacturer). Defendant BREG has thus 

received the required fair notice of Plaintiff’s claim and the grounds upon which it rests. 

See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319 (2007).

Ultimately, to sustain a claim for strict products liability and negligence, Plaintiff 

will have to demonstrate that Defendant BREG manufactured at least one of the pain 

pumps in question. This is a burden that must be carried in later stages of this case as the 

Federal Rules of Civil Procedure rely on discovery and summary judgment, rather than 

pleadings, to flesh out the disputed facts and cull unmeritorious cases. 

Defendant’s Motion to Dismiss (Doc. 13) is denied. 

ORDERED on September 20, 2010

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE