DECISION AND ORDER I. Introduction This is a removed diversity action wherein Plaintiff Leslie Greenwood alleges product liability against Defendant Arthrex, Inc. (“Arthrex”), a medical device manufacturer. Arthrex produced the “Arthrex Burr,” a medical device that purportedly injured Plaintiff during an October 2018 surgical procedure. Presently before this Court is Arthrex’s Motion for Judgment on the Pleadings (Docket No. 371), seeking dismissal of the Second Amended Complaint with prejudice, arguing that it should be dismissed for the same reasons this Court previously dismissed claims alleged against codefendant TE Connectivity Corporation (“TE”), see Greenwood v. Arthrex, Inc., No. 21CV1101, 2022 WL 21177632 (W.D.N.Y. 2022) (Skretny, J.) (Docket No. 31, Decision and Order of June 13, 2022; see Docket No. 18 (TE Motion); see generally Docket No. 37, Arthrex Memo.). Plaintiff opposed and cross-moved for leave to file a Third Amended Complaint (Docket No. 41). This Court granted the Cross-Motion and leave to so amend (Docket No. 45; see Docket No. 46, 3d Am. Compl.). After Plaintiff filed the Third Amended Complaint (the relevant pleading for the Motion for Judgment on the Pleadings), Arthrex’s Motion is deemed submitted (see Docket No. 45). For the reasons stated below, Arthrex’s Motion (Docket No. 37) is granted in part, denied in part. As pled in the Third Amended Complaint (Docket No. 46), Arthrex’s Motion for Judgment dismissing Greenwood’s First Cause of Action is denied; the Second Cause of Action is denied but Plaintiff is granted leave to amend this claim; the Third Cause of Action is granted; and the Fourth Cause of Action is denied but Greenwood is granted leave to also amend this claim. Plaintiff has 14 days from entry of this Decision and Order to serve and file her new Fourth Amended Complaint revised consistent with this Decision and Arthrex shall answer or respond to the latest amended pleading as directed below. II. Background A. Procedural History Leslie Greenwood originally sued Arthrex in New York State Supreme Court (Docket No. 1, Notice of Removal 2, Ex. A, Tab 1). Arthrex answered (id., Ex. A, Tab 3) and Greenwood amended that Complaint adding Defendants (id. 5, Ex. A, Tab 7). New Codefendant Precision Edge Surgical Products Company (“Precision Edge”) removed this case to this Court (id. 9, Exs. B, C). After TE and Precision Edge moved to dismiss the first Amended Complaint (Docket Nos. 6, 7; see also Docket No. 17, Order dismissing Motions as mooted by amended pleading), Greenwood filed her Second Amended Complaint (Docket No. 13). Arthrex answered the Second Amended Complaint (Docket No. 19). TE (Docket No. 18) and Precision Edge (Docket No. 20) then moved to dismiss the Second Amended Complaint. On June 13, 2022, this Court granted these Motions, Greenwood, supra, 2022 WL 2117763 (Docket No. 31). There, this Court dismissed with prejudice Greenwood’s strict product liability theories, negligence and breach of warranties claims against TE, id. at *9-13, 14, and against Precision Edge, id. at *6-9, 14. B. Facts as Alleged in the Third Amended Complaint (Docket No. 46) The Third Amended Complaint removes allegations against TE and Precision Edge and alleges four modified Causes of Action against Arthrex for negligence, strict products liability, breach of warranties, and failure to warn (see generally Docket No. 46, 3d Am. Compl.). As previously discussed, Greenwood, supra, 2022 WL 2117763, at *1-2, Plaintiff was injured during a surgical procedure on or about October 25, 2018, when the Arthrex Burr device used there resulted in permanent and serious injuries to her (Docket No. 46, 3d Am. Compl.
10-11). Greenwood’s doctor later told her that there had been a “mechanical malfunction of the Arthrex surgical instrument identified by the manufacturer that resulted in a significant heating of the shaft of the burr that was most likely the cause of the anterior thermal on her shoulder” (id. 12). In the amended First Cause of Action Arthrex alleges negligence in manufacturing and distributing the Arthrex Burr device (id.
