Michelle Agee v. ALPHATEC SPINE, INC., a California Corporation

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0086n.06
Case No. 17-3296
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHELLE AGEE, et al.,
Plaintiffs-Appellants,
v.
ALPHATEC SPINE, INC., a California
Corporation; PARCELL LABORATORIES,
LLC, a Delaware Limited Liability Company,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO
BEFORE: COOK, McKEAGUE, and STRANCH, Circuit Judges.
PER CURIAM. 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,

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Case No. 17-3296
Agee, et al. v. Alphatec Spine, Inc., et al.
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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 F. App’x 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.
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.

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