United States District Court, S.D. Mississippi, Western Division
STEPHANIE S. KNOTH PLAINTIFF
DR. STEPHEN P. KEITH, SOUTHWEST MISSISSIPPI REGIONAL MEDICAL CENTER, GASTROENTEROLOGY ASSOCIATES, and APOLLO ENDOSURGERY US, INC. DEFENDANTS
BRAMLETTE UNITED STATES DISTRICT JUDGE
cause having come before the Court on Plaintiff's Motion
[Doc. 23] for Leave to File an Amended
Complaint; Plaintiff's Motion [Doc. 18]
to Dismiss her claims against Defendant Apollo Endosurgery
US, Inc. (“Apollo”) without prejudice, which the
Court construes as a Motion for Voluntary Dismissal pursuant
to Fed. R. Civ. Pro. 41; and Defendant Apollo's Motion
[Doc. 9] to Dismiss. For the following
reasons, Plaintiff's Motion [Doc. 23] to
Amend/Correct Complaint [Doc. 1] is GRANTED. Therefore,
Plaintiff's Motion [Doc. 18] and
Defendant's Motion [Doc. 9] are DENIED
a medical malpractice and products liability dispute.
Plaintiff Stephanie S. Knoth (“Knoth”) alleges
that on November 29, 2016, Knoth was admitted to Southwest
Mississippi Regional Medical Center for an outpatient
procedure, the insertion of an ORBERA Intragastric Balloon
(“the Balloon”) for weight loss. Doc. 1, p.5,
¶13. Dr. Stephen Keith performed the procedure. Doc. 1,
p.5, ¶15. Knoth was discharged home after the procedure.
Id. Knoth states that on December 1, 2016, an
esophagogastroduodenoscopy (“EGD”) was performed
as a planned removal of the Balloon per Knoth's request.
Id. Knoth states, “Dr. Keith noted the
[B]alloon was obstructing the pyloric valve with suction
removal of three to four liters of fluid from the
stomach.” Id. The Court presumes she meant the
Balloon was obstructing the pyloric valve, which required
suction from the stomach. Dr. Keith allegedly kept the
Balloon intact and only repositioned the Balloon.
Id. Knoth contends that she then experienced damage
to the fundus of her stomach, which eventually led to the
perforation of the gastric fundus. Doc. 1, p.6, ¶18.
Knoth states she aspirated massive amounts of GI
(gastrointestinal) content reading to a life-threatening
infection and stiffening of lungs known as Acute Respiratory
Distress Syndrome (“ARDS”). Id. Knoth
was treated for ARDS, involving months of ventilator
dependence, a tracheostomy tube and chest tubes. Doc. 1, p.6,
¶19. According to Knoth, Dr. Dany Haddad performed an
abdominal assessment, noted issues, made diagnoses, and
advised Dr. Keith that Knoth wanted the Balloon removed. Doc.
1, p.6, ¶¶18-21. Eventually, the Balloon was
removed. Doc. 1, p.6, ¶22. Knoth allegedly suffered
considerable injuries, including respiratory failure
requiring long-term ventilator support and a tracheostomy.
Doc. 1, p.7, ¶26. Knoth contends that she also
experienced septic shock, pneumonia, peritonitis, and
surgeries to treat the abdominal infection. Doc. 1, p.7,
¶¶26-27. Defendants Apollo and Southwest
Mississippi Regional Medical Center generally deny most of
Knoth's allegations in their Answers. Docs. 8 & 13.
The other defendants have not responded.
pro se Plaintiff Knoth makes several claims against Apollo,
including fraudulent marketing, misrepresentation, marketing
a defective product. Doc. 1, p.8, ¶31. In its Motion to
Dismiss [Doc. 9], Apollo argues that Knoth's state law
claims against Apollo and its FDA-approved Balloon are
preempted by federal law. Doc. 11, pp.3-6. After securing
counsel, see Doc. 17 and Doc. 24, p.3, Plaintiff moved to
Dismiss its claims against Defendant Apollo Endosurgery US,
Inc. (“Apollo”) without prejudice. Doc. 18. The
Court notes, however, that the proper procedural mechanism
for Knoth's request is a Motion for Voluntary Dismissal
pursuant to Fed. R. Civ. Pro. 41.
now moves to amend her Complaint pursuant to Fed. R. Civ.
Pro. 15(a)(2) and 15(c). Fed. R. Civ. Pro. 15(a)(2) provides
that “a party may amend its pleading only with the
opposing party's written consent or the court's
leave. The court should freely give leave when justice so
requires.” In the absence of undue delay, bad faith,
undue prejudice on the opposing parties, etc., the leave
sought should “be freely given.” Forman v. Davis,
371 U.S. 178, 182 (1962)(declaring that “leave to amend
‘shall be freely given when justice so
requires'” is a “mandate … to be
heeded.”)(internal quotations omitted). Knoth argues
that she would be prejudiced if not afforded the right to
have counsel amend the complaint and move forward based on
the merits of the claims. Doc. 24, p.3. Knoth contends that
Defendants will not suffer undue prejudice from the filing of
her Amended Complaint because no discovery has occurred among
the parties, and the Court has not entered a Case Management
Order. Id. Knoth also contends that no reason listed
in Forman exists as cause to deny her request.
action, Knoth's Motion [Doc. 23] is unopposed. See Docs.
26, 28. The Court finds that allowing former pro se Plaintiff
to amend her Complaint would assist the Court and opposing
parties by narrowing the scope of the issues and appropriate
Court remedies. Doc. 24, p.2. Therefore, it is appropriate to
grant Knoth's request. Granting this Motion [Doc.
23] renders moot Knoth's Motion to Dismiss
[Doc. 18] and Apollo's Motion to Dismiss
IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff's Motion
[Doc. 23] for Leave to File an Amended
Complaint is GRANTED;
FURTHER ORDERED AND ADJUDGED that Plaintiff's Motion
[Doc. 18] to Dismiss its claims against
Defendant Apollo Endosurgery US, Inc. (“Apollo”)
without prejudice, which the Court construes as a Motion for
Voluntary Dismissal pursuant to Fed. R. Civ. Pro. 41 is
DENIED as moot; and IT IS FURTHER ...