Wittman et al v. C. R. Bard, Inc. et al

MEMORANDUM OF LAW

S.D.W. Va.October 18, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION IN RE: C.R. BARD, INC., PELVIC REPAIR MDL NO. 2187 SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO THE FOLLOWING CASES: MERRY SHERLOCK CASE NO. 2:16-CV-10794 DEFENDANT C. R. BARD, INC.’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT GREENBERG TRAURIG, LLP Terminus 200 3333 Piedmont Road, N.E., 25th Floor Atlanta, Georgia 30305 (678) 553-2100 REED SMITH LLP 355 South Grand Avenue, Suite 2900 Los Angeles, California 90071 (213) 457-8000 Attorneys for Defendant C. R. Bard, Inc. Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 1 of 19 PageID #: 1610 i TABLE OF CONTENTS Page TABLE OF CONTENTS ................................................................................................................. i Table of Authorities ........................................................................................................................ ii INTRODUCTION AND FACTUAL BACKGROUND ................................................................ 1 CHOICE OF LAW ......................................................................................................................... 2 GENERAL LEGAL ARGUMENTS AND AUTHORITIES ......................................................... 3 I. SUMMARY JUDGMENT STANDARD........................................................................... 3 II. THIS COURT SHOULD GRANT SUMMARY JUDGMENT TO BARD ON PLAINTIFF’S SUBSTANTIVE CLAIMS AS A MATTER OF LAW BASED ON THE RECORD IN THIS CASE. ................................................................................. 4 A. This Court Should Grant Summary Judgment in Bard’s Favor on Plaintiff’s Negligence Claims (Count IV). ............................................................. 4 B. This Court Should Grant Summary Judgment to Bard on Plaintiff’s Strict Liability Manufacturing and Design Defect Claims (Counts II and III). ............... 6 C. This Court Should Grant Summary Judgment in Bard’s Favor on Plaintiff’s Breach of Express and Implied Warranty Claims (Counts V and VI). .......................................................................................................................... 8 1. Plaintiff is not in privity of contract with Bard. .......................................... 8 2. Plaintiff did not rely on any express warranty. ........................................... 9 D. Bard is Entitled to Summary Judgment on Plaintiff’s Claims under the California Business and Professional Code §§ 17200 and 17500 and California Civil Code § 1750. ............................................................................... 10 E. This Court Should Dismiss Plaintiff’s Punitive Damages Claim. ........................ 11 CONCLUSION ............................................................................................................................. 12 CERTIFICATE OF SERVICE ..................................................................................................... 14 Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 2 of 19 PageID #: 1611 ii TABLE OF AUTHORITIES Page Federal Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ...............................................................................................................3, 4 Benitez v. Synthes, Inc., 813 F. Supp. 2d 1339 (M.D. Fla. 2002) .....................................................................................6 Black v. Kerzner Int’l Holdings Ltd., 958 F. Supp. 2d 1347 (S.D. Fla. 2013) ....................................................................................11 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ...................................................................................................................3 Cisson, et al. v. C. R. Bard, Inc., No. 2:11-cv-00195, slip op. (S.D.W. Va. June 4, 2013) (Goodwin, J.) [DE 272] ........................................................................................................................................5, 7 Citizens Prop. Ins. v. Simkar, 813 F. Supp. 2d 1356 (M.D. Fla. 2011) .................................................................................6, 7 Cont’l 332 Fund, LLC v. Albertelli, No. 2:17-CV-41-FTM-38MRM, 2018 WL 839318 (M.D. Fla. Feb. 13, 2018) ........................9 Dash v. Mayweather, 731 F.3d 303 (4th Cir. 2013) .....................................................................................................4 In re Digitek Prods. Liab. Litig., 821 F. Supp. 2d 822 (S.D. W. Va. 2011) ...................................................................................4 Eghnayem v. Boston Sci. Corp., No. 2:13-CV-07965, 2014 WL 5460605 (S.D.W. Va. Oct. 27, 2014) ......................2, 3, 6, 8, 9 Humphreys v. Gen. Motors Corp., 839 F. Supp. 822 (N.D. Fla. 1993).............................................................................................7 Jones v. C. R. Bard, Inc., No. 2:11-cv-00114, slip op. (S.D.W. Va. June 4, 2013) (Goodwin, J.) [DE 288] ........................................................................................................................................5, 7 Jozwiak v. Stryker Corp., No. 6:09–cv–1985–Orl–19GJK, 2010 WL 743834 (M.D. Fla. Feb. 26, 2010) .........................7 Kaiser v. Depuy Spine, Inc., 944 F. Supp. 2d 1187 (M.D. Fla. 2013) .....................................................................................8 Lewis v. City of St. Petersburg, 260 F.3d 1260 (11th Cir. 2001) .................................................................................................4 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ...................................................................................................................3 Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 3 of 19 PageID #: 1612 iii Payne v. C. R. Bard, Inc., No. 6:11-cv-1582, 2014 WL 1887297 (M.D. Fla. May 12, 2014) ............................................4 Phillips Petroleum Company v. Shutts, 472 U.S. 797 (1985) ...........................................................................................................10, 11 Queen, et al. v. C. R. Bard, Inc., No. 2:11-cv-00012, slip op. (S.D.W. Va. June 4, 2013) (Goodwin, J.) [DE 277] ........................................................................................................................................5, 7 Rizzo, et al. v. C. R. Bard, Inc., No. 2:10-cv-01224, slip op. (S.D.W. Va. June 4, 2013) (Goodwin, J.) [DE 303] ........................................................................................................................................5, 7 Sanchez v. Boston Sci. Corp., 38 F. Supp. 3d 727 (S.D. W. Va. 2014) .....................................................................................3 Standfacts Credit Servs. v. Experian Info. Solutions, Inc., 405 F. Supp. 2d 1141 (C.D. Cal. 2005) ...................................................................................10 T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842 (N.D. Fla. 1995).............................................................................................8 Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008 (11th Cir. 2014) ...............................................................................................12 State Cases Bailey v. St. Louis, 196 So. 3d 375, 379 (Fla. Dist. Ct. App. 2016) .......................................................................12 Bishop v. Fla. Specialty Paint Co., 389 So. 2d 999 (Fla. 1980).....................................................................................................2, 3 Connell v. Riggins, 944 So. 2d 1174 (Fla. Dist. Ct. App. 2006) ...........................................................................2, 3 Crowell v. Clay Hyder Trucking Lines, Inc., 700 So. 2d 120 (Fla. Dist. Ct. App. 1997) .................................................................................2 Diamond Multimedia Systems, Inc. v. Superior Court, 19 Cal. 4th 1036 (1999) ...........................................................................................................10 Elizabeth N. v. Riverside Grp., Inc., 585 So. 2d 376 (Fla. 1st DCA 1990) .........................................................................................8 Liggett Grp., Inc. v. Davis, 973 So. 2d 467 (Fla. 4th DCA 2007) .........................................................................................6 Navanhoe Circle, Inc. v. Dev. Concepts Corp., 373 So. 2d 689 (Fla. 2d DCA 1979) ..........................................................................................8 Norwest Mortgage, Inc., v. Superior Court, 72 Cal. App. 4th 214 (1999) ..............................................................................................10, 11 Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 4 of 19 PageID #: 1613 iv Spolski Gen. Contractor, Inc. v. Jett-Aire Corp. Aviation Mgmt. of Cent. Fla., Inc., 637 So. 2d 968 (Fla. 5th DCA 1994) .........................................................................................9 Weimar v. Yacht Club Point Estates, Inc., 223 So. 2d 100 (Fla. Dist. Ct. App. 1969) .................................................................................9 State Statutes California Civil Code § 1750 ...........................................................................................1, 2, 10, 11 California Civil Code §§ 1709, 1710 ...............................................................................................1 Code §§ 17200 and 17500 ...............................................................................................1, 2, 10, 11 Fla. Stat. § 768.72(2)................................................................................................................11, 12 Florida Statutes §§ 672.313, 672.314, 672.315 (2012) ....................................................................8 Rules FED. R. CIV. P. 56(c) ........................................................................................................................3 Rule 26 .............................................................................................................................................5 Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 5 of 19 PageID #: 1614 - 1 - Defendant C. R. Bard, Inc. (“Bard”) hereby submits its memorandum of law in support of its motion for summary judgment in the above-captioned case (“Motion”). In support of its Motion, Bard shows the Court as follows. INTRODUCTION AND FACTUAL BACKGROUND Plaintiff Merry Sherlock, a resident of Florida, alleges that she was implanted with Bard’s Align Urethral Support System (“Align”) on December 21, 2009, by Dr. Ralph Zipper at Holmes Regional Medical Center in Florida. (Plaintiff Fact Sheet (“PFS”) at II.1).1 Plaintiff asserts claims for: (Count I) Strict Liability – Failure to Warn; (Count II) Strict Liability – Manufacturing Defect; (Count III) Strict Liability – Design Defect; (Count IV) Negligence; (Count V) Breach of Implied Warranty; (Count VI) Breach of Express Warranty; (Count VII) Deceit by Concealment – California Civil Code §§ 1709, 1710; (Count VIII) Negligent Misrepresentation; (Count IX) Fraud by Concealment; (Count X) Violation of California Business & Professional Code § 17200; (Count XI) Violation of California Business & Professional Code § 17500; and (Count XII) Violation of California Business & Professional Code § 1750. Plaintiff filed this Complaint in the California Superior Court for Los Angeles County and then the case was removed by Bard to the United States District Court for the Central District of California on October 24, 2016. (Notice of Removal of Action with Exhibit 1 (Complaint)).2 This case was transferred to this MDL on November 8, 2016. See Conditional Transfer Order.3 1A true and correct copy of Plaintiff Fact Sheet is attached as Exhibit A to Bard’s Motion for Summary Judgment which is being filed contemporaneously herewith. 2 A true and correct copy of the Notice of Removal with Exhibit 1 (Plaintiff’s Complaint) is attached as Exhibit B to Bard’s Motion for Summary Judgment which is being filed contemporaneously herewith. 3 A true and correct copy of the Conditional Transfer Order is attached as Exhibit C to Bard’s Motion for Summary Judgment which is being filed contemporaneously herewith. Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 6 of 19 PageID #: 1615 - 2 - Bard now moves for partial summary judgment on Plaintiff’s claims for negligent and strict liability manufacturing, breach of express warranty, breach of implied warranty, negligence to the extent that it is based on negligent marketing, labelling, packaging, and selling and all counts related to violation of California Business & Professional Code (including sections 17200 and 17500) and California Civil Code 1750. CHOICE OF LAW Though federal law governs the standard for this motion for summary judgment, the Court must decide which state’s law governs the substantive issues in this diversity action. Under Florida law, the “significant relationship test” applies to tort actions. See Eghnayem v. Boston Sci. Corp., No. 2:13-CV-07965, 2014 WL 5460605, at *2 (S.D.W. Va. Oct. 27, 2014) (citing Bishop v. Fla. Specialty Paint Co., 389 So. 2d 999, 1001 (Fla. 1980) (“Instead of clinging to the traditional lex loci delicti rule, we now adopt the ‘significant relationship[ ] test’ as set forth in the Restatement (Second) of Conflict of Laws §§ 145-146 (1971).”)); see also Crowell v. Clay Hyder Trucking Lines, Inc., 700 So. 2d 120, 122 (Fla. Dist. Ct. App. 1997) (“Florida applies the “significant relationship test” . . . to choice of law issues arising from tort claims.”). As this Court has explained, “[i]n adopting this test, the Bishop court reiterated language set forth in § 146 of the Restatement, noting that ‘[t]he state where the injury occurred would, under most circumstances, be the decisive consideration in determining the applicable choice of law.’” Eghnayem, 2014 WL 5460605, at *2 (quoting Bishop, 389 So. 2d 1001). Under the significant relationship test, the court must determine which state has “the most significant relationship to the occurrence and the parties.” Crowell, 700 So. 2d at 122 (citation omitted). In the case of Connell v. Riggins, 944 So. 2d 1174 (Fla. Dist. Ct. App. 2006), the court explained that “in a conflict-of-laws situation, consideration should be given to four main factors: 1) ‘the place where the injury occurred,’ 2) ‘the place where the conduct causing the injury occurred,’ 3) Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 7 of 19 PageID #: 1616 - 3 - ‘the domicile, residence, nationality, place of incorporation and place of business of the parties,’ and 4) ‘the place where the relationship, if any, between the parties is centered.’” Id. at 1177 (quoting Bishop, 389 So. 2d at 1001). In the PFS, Plaintiff alleges that she resides in Florida and was implanted with the Bard Align device in Florida. (PFS, II.1). For these reasons, Bard submits that Florida has the most significant relationship to Plaintiff’s alleged claims and Florida law should apply to the issues in this case. See, e.g., Eghnayem, 2014 WL 5460605, at *2 (“The plaintiffs here are Florida residents, underwent Pinnacle device implantation surgery in Florida, and allegedly suffered injury in Florida. Therefore, I FIND that the substantive laws of Florida apply to the issues in this case.”). This Court should therefore apply the choice of law rules of Florida to Plaintiff’s claims. GENERAL LEGAL ARGUMENTS AND AUTHORITIES I. SUMMARY JUDGMENT STANDARD. In federal cases based on diversity jurisdiction, federal law determines procedural issues, and state law determines substantive issues. See, e.g., Sanchez v. Boston Sci. Corp., 38 F. Supp. 3d 727, 731 (S.D. W. Va. 2014). “The standard for summary judgment is procedural; therefore, the federal standard applies.” Id. To obtain summary judgment, Bard must demonstrate an absence of disputed issue of material facts such that it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). Summary judgment is warranted if a plaintiff cannot make a showing sufficient to establish each element for which the plaintiff bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Although the Court will view facts and inferences in the light most favorable to plaintiffs, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986), plaintiffs must nonetheless offer some “concrete evidence from which a reasonable juror could return a verdict in [their] favor.” Anderson v. Liberty Lobby, Inc., Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 8 of 19 PageID #: 1617 - 4 - 477 U.S. 242, 243, 256 (1986). Concrete evidence requires more than a mere “scintilla” of evidence, id. at 252, and a plaintiff cannot avoid summary judgment simply by introducing conclusory allegations or speculation. See, e.g., In re Digitek Prods. Liab. Litig., 821 F. Supp. 2d 822, 837 (S.D. W. Va. 2011) (granting summary judgment because “there is completely lacking a cogent argument or genuine issue of material fact”); Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). II. THIS COURT SHOULD GRANT SUMMARY JUDGMENT TO BARD ON PLAINTIFF’S SUBSTANTIVE CLAIMS AS A MATTER OF LAW BASED ON THE RECORD IN THIS CASE. A. This Court Should Grant Summary Judgment in Bard’s Favor on Plaintiff’s Negligence Claims (Count IV). In her Complaint, Plaintiff claims that Bard had a duty to use reasonable care in “researching, manufacturing, licensing, fabricating, designing, labeling, designing, labeling, distributing, using, supplying, selling, marketing, packaging, and advertising,” the Bard Align product. (Complaint, at ¶¶ 87-89). These negligence claims largely are duplicative of her strict liability causes of action. (Id., at ¶¶ 65-85). To establish the elements of her negligence claims, Plaintiff must prove, among other things, both that Bard breached the alleged duties referenced and that such breach caused Plaintiff’s alleged harm. See, e.g., Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001) (“To state a claim for negligence under Florida law, a plaintiff must allege that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff to suffer damages.”); Payne v. C. R. Bard, Inc., No. 6:11-cv-1582, 2014 WL 1887297, at *2 (M.D. Fla. May 12, 2014) (“To hold a manufacturer liable on a negligence theory, the plaintiff must establish that . . . the breach proximately caused injury to plaintiff . . . .”). Plaintiff has failed to do so in this case, and this Court has repeatedly granted summary judgment on allegations of negligent inspection, packaging, marketing or selling Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 9 of 19 PageID #: 1618 - 5 - where, as here, plaintiffs in this litigation have failed to come forward with any evidence to support those claims. See, e.g., Cisson, et al. v. C. R. Bard, Inc., No. 2:11-cv-00195, slip op. at 13 (S.D.W. Va. June 4, 2013) (Goodwin, J.) [DE 272] [hereinafter “Cisson”] (plaintiffs’ negligent inspection, marketing, packaging, and selling claim fails for lack of evidence to the extent they are distinct from plaintiffs’ design and warnings claims); Jones v. C. R. Bard, Inc., No. 2:11-cv-00114, slip op. at 13 (S.D.W. Va. June 4, 2013) (Goodwin, J.) [DE 288] [hereinafter “Jones”] (same); Queen, et al. v. C. R. Bard, Inc., No. 2:11-cv-00012, slip op. at 13-14 (S.D.W. Va. June 4, 2013) (Goodwin, J.) [DE 277] [hereinafter “Queen”] (same); Rizzo, et al. v. C. R. Bard, Inc., No. 2:10-cv-01224, slip op. at 15(S.D.W. Va. June 4, 2013) (Goodwin, J.) [DE 303] [hereinafter “Rizzo”] (same). The record in this case is clear that Plaintiff has not engaged in any discovery that would support these negligence claims. Plaintiff did not depose the Bard sales representative who was assigned to the territory of her implanting physician at the time of her implantation. Further, Plaintiff did not retain any experts to offer admissible opinions that Bard breached the applicable standard of care in the manner it inspected, marketed, packaged or sold the Bard product at issue in this case. To the contrary, all relevant evidence offered by Bard in this case reflects that Bard’s actions conformed to the industry standard.4 Moreover, even if Plaintiff had come forward with any evidence about a lack of conformance to industry standards (which she did not), Plaintiff has offered no evidence that any such alleged breach of duty caused the alleged 4 Specifically, Dr. Maureen Reitman, Bard’s biomedical, biomaterials, and polymer science expert witness, has reviewed the lot traceability documentation for Plaintiff’s device, and based on that review has determined that Plaintiff’s device met all manufacturing specifications. See Rule 26 Expert Report of Dr. Maureen Reitman (“Reitman Report”), served on August 13, 2018, at p. 77-80, and Appendix D-12 thereto. A true and correct copy of the Reitman Report, less the voluminous exhibits (but including one redacted page from Exhibit concerning this Plaintiff), is attached as Exhibit D to Bard’s Motion for Partial Summary Judgment, which is being filed contemporaneously herewith. Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 10 of 19 PageID #: 1619 - 6 - damages that are the subject of Plaintiff’s claims. As a result, Bard is entitled to summary judgment as a matter of undisputed fact and law as to all of Plaintiff’s negligence claims. B. This Court Should Grant Summary Judgment to Bard on Plaintiff’s Strict Liability Manufacturing and Design Defect Claims (Counts II and III). Plaintiff claims that the Align device at issue in this case was “defective at the time of [] manufacture,” “defective[ly] and unreasonably dangerous” in design and asserts claims for strict liability manufacturing defect and design defect. (Complaint, at ¶¶ 72-85). Bard is entitled to summary judgment on both claims. As this Court has previously explained, in Florida, “[a] manufacturing defect results from manufacturing flaws caused by a ‘miscarriage in the manufacturing process which produces an unintended result,’” Eghnayem, 2014 WL 5460605, at *3 (citation omitted), or that the product failed to “conform to its intended design” or “fail[ed] to perform as safely as the intended design would have performed.” Citizens Prop. Ins. v. Simkar, 813 F. Supp. 2d 1356, 1363 (M.D. Fla. 2011) (citation omitted). Thus, under Florida law, “manufacturing defects are generally limited to situations where something goes wrong in the manufacturing process,” Benitez v. Synthes, Inc., 813 F. Supp. 2d 1339, 1344 (M.D. Fla. 2002), and to prevail on a manufacturing defect claim, a plaintiff must establish “(1) a product that ‘does not conform to its intended design’ such that it (2) ‘fails to perform as safely as the intended design would have performed.’” Citizens, 813 F. Supp. 2d at 1363 (citation omitted); see also Benitez, 813 F. Supp. 2d at 1344 (explaining that manufacturing defects can be distinguished from other types of product liability claims, such as design defects and inadequate warning defects). With respect to a design defect claim, Florida law provides that a design defect is “a defect which renders the product unreasonably dangerous.” Liggett Grp., Inc. v. Davis, 973 So. 2d 467, 475 (Fla. 4th DCA 2007) (emphasis omitted). “In order to hold a manufacturer strictly Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 11 of 19 PageID #: 1620 - 7 - liable for a design defect, the plaintiff must establish: (1) the manufacturer’s relationship to the product in question; (2) a defect in the product; and (3) proximate cause between the defective product and the plaintiff’s injury.” Jozwiak v. Stryker Corp., No. 6:09–cv–1985–Orl–19GJK, 2010 WL 743834, at *6 (M.D. Fla. Feb. 26, 2010) (applying Florida law). A design defect must be proven through expert testimony. See Humphreys v. Gen. Motors Corp., 839 F. Supp. 822, 826-27 (N.D. Fla. 1993). Here, Plaintiff has failed to provide any evidence in this case to support her strict liability manufacturing or design defect claims, such that no genuine issues of material fact exist suggesting that the Bard Align product at issue in this case had any such alleged defects. Because Plaintiff can refer to no admissible evidence, whether documentary or testimonial, from which it could be inferred that Bard’s products in any way deviated from the underlying specification for all other devices, Plaintiff’s strict liability manufacturing and design defect claims fail as a matter of law, and Bard is entitled to summary judgment. See, e.g., Humphreys, 839 F. Supp. at 826-27, 830. Indeed, with respect to Plaintiff’s manufacturing defect claim, in particular, this Court has routinely granted motions for summary judgment on manufacturing defect claims in other vaginal mesh cases, holding that the plaintiffs’ complaints are about the design of Bard’s products and not a defect in the manufacturing process. See, e.g., Cisson, slip op. at 5-9 (plaintiffs’ negligent inspection, marketing, packaging, and selling claim fails for lack of evidence to the extent they are distinct from plaintiffs’ design and warnings claims); Jones, slip op. at 5-8 (same); Queen, slip op. at 6-9 (same); Rizzo, slip op. at 5-9 (same). Moreover, federal courts applying Florida law have granted summary judgment for design defect claims where plaintiffs failed to adduce record evidence of a design defect. See, e.g., Citizens Prop. Ins. v. Simkar LLC, 813 F. Supp. 2d 1356, 1362 (M.D. Fla. 2011). Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 12 of 19 PageID #: 1621 - 8 - C. This Court Should Grant Summary Judgment in Bard’s Favor on Plaintiff’s Breach of Express and Implied Warranty Claims (Counts V and VI). 1. Plaintiff is not in privity of contract with Bard. Plaintiff has asserted a breach of express warranty claim and a breach of implied warranty claim. (Complaint, ¶¶ 95-104). Plaintiff cannot prevail on either of these claims because she is not in privity of contract with Bard. As this Court has previously explained in Eghnayem, Florida recognizes both express and implied warranties. 2014 WL 5460605, at *4 (citing Sections 672.313, 672.314, 672.315, Florida Statutes, (2012)). In Florida, a warranty is “fundamentally a contract,” and a contract requires privity. Id. (quoting T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995)); see also Elizabeth N. v. Riverside Grp., Inc., 585 So. 2d 376, 378 (Fla. 1st DCA 1990) (“A warranty, whether express or implied, is fundamentally a contract. A contract cause of action requires privity.” (quoting Navanhoe Circle, Inc. v. Dev. Concepts Corp., 373 So. 2d 689, 692 (Fla. 2d DCA 1979))). Therefore, in order “to recover for the breach of a warranty [under Florida law], . . . the plaintiff must be in privity of contract with the defendant.” Eghnayem, 2014 WL 5460605, at *4 (quoting T.W.M., 886 F. Supp. at 844); see also Kaiser v. Depuy Spine, Inc., 944 F. Supp. 2d 1187, 1193 (M.D. Fla. 2013) (“[I]t is well established in Florida that warranty-based claims . . . require privity of contract between the parties.”). To that end, “[a] plaintiff who purchases a product, but does not buy it directly from the defendant, is not in privity with that defendant.” Eghnayem, 2014 WL 5460605, at *4 (emphasis added; quoting T.W.M., 886 F. Supp. at 844). When a plaintiff fails to show privity with a defendant, courts, including this Court, routinely dismiss breach of warranty claims on summary judgment. See, e.g., id. (granting summary judgment to defendant medical device manufacturer on breach of warranty claims); Timmons, at *4 (M.D. Fla. Feb. 2, 2006) (granting summary judgment to Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 13 of 19 PageID #: 1622 - 9 - defendant prescription drug manufacturer on plaintiff’s breach of express and implied warranty claims after finding a lack of privity between plaintiff and defendant); Spolski Gen. Contractor, Inc. v. Jett-Aire Corp. Aviation Mgmt. of Cent. Fla., Inc., 637 So. 2d 968, 969-70 (Fla. 5th DCA 1994) (affirming summary judgment on warranty claims where there was no privity between parties). Here, Plaintiff does not allege that she purchased the Bard Align product at issue in this case directly from Bard, or that she contracted with Bard for this product. Nor could she. All of Bard’s vaginal mesh products are prescription medical devices sold only to healthcare providers. Absent evidence showing a direct purchase from or contract with Bard for any of its products, Plaintiff cannot establish privity of contract with Bard as a matter of law. Accordingly, Bard is entitled to summary judgment on Plaintiff’s breach of warranty claims. Eghnayem, 2014 WL 5460605, at *4 (“[A] plaintiff who purchases a product, but does not buy it directly from the defendant, is not in privity with that defendant.” (citation omitted)). 2. Plaintiff did not rely on any express warranty. Summary judgment also is warranted on Plaintiff’s express warranty claim since Plaintiff failed to proffer any evidence that she relied on any warranty made by Bard, an essential element of her express warranty claim. Again, Plaintiff has offered insufficient evidence in this case to support any of her claims, including her claim for breach of express warranty. Thus, summary judgment is appropriate as to this claim on this additional ground. See Cont’l 332 Fund, LLC v. Albertelli, No. 2:17-CV-41-FTM-38MRM, 2018 WL 839318, at *6 (M.D. Fla. Feb. 13, 2018) (citing Weimar v. Yacht Club Point Estates, Inc., 223 So. 2d 100, 104 (Fla. Dist. Ct. App. 1969)). Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 14 of 19 PageID #: 1623 - 10 - D. Bard is Entitled to Summary Judgment on Plaintiff’s Claims under the California Business and Professional Code §§ 17200 and 17500 and California Civil Code § 1750. Notwithstanding the fact that Plaintiff is not a California resident and was not implanted in California, Plaintiff asserts two claims for recovery pursuant to the California Business and Professional Code §§ 17200 and 17500 and an additional claim for recovery pursuant to California Civil Code § 1750. California courts, however, have consistently stated that its state statutes are not intended “to have force of operation beyond the boundaries of the state.” E.g., Norwest Mortgage, Inc., v. Superior Court, 72 Cal. App. 4th 214, 222 (1999). As such, generally, a California statute will not be construed to regulate events outside of California. Id. (citing Diamond Multimedia Systems, Inc. v. Superior Court, 19 Cal. 4th 1036, 1058-1059 (1999)). This is because the application of California law to claims by nonresidents can raise significant Due Process problems as the United States Supreme Court concluded in Phillips Petroleum Company v. Shutts, 472 U.S. 797, 799-801 (1985) (“Shutts”). Following Shutts, federal and state courts in California have held that applying California law to claims by non-California plaintiffs against a non-California defendant is unconstitutional where the alleged conduct did not occur in or emanate from California. See, e.g., Standfacts Credit Servs. v. Experian Info. Solutions, Inc., 405 F. Supp. 2d 1141 (C.D. Cal. 2005); Norwest Mortgage, Inc. v. Super. Ct., 72 Cal. App. 4th 214 (App. Ct. 1999). Indeed, Norwest Mortgage is particularly instructive here as it involved: (1) that same California statutory claims as alleged here; (2) brought on behalf of non-California plaintiffs; (3) against a defendant corporation whose headquarters and principal place of business were located outside of California; (4) concerning injury-causing conduct that occurred outside of California; and (5) injuries suffered outside of California. 72 Cal. App. 4th at 217-18. In that case, the California court of appeal found application of California law under such circumstances to be unconstitutional “[b]ecause Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 15 of 19 PageID #: 1624 - 11 - Norwest Mortgage’s headquarters and principal place of business, the place [non-California class] members were injured, and the place the injury-producing conduct occurred are outside California, we conclude application of the UCL to the claims of [non-California class] members would be arbitrary and unfair and transgress due process limitations.” Id. at 227. As Plaintiff in this case has failed to plead any—let alone satisfy a sufficient—nexus between herself, a nonresident, and the state of California, California substantive law—that is, California Business and Professional Code §§ 17200 and 17500 and California Civil Code § 1750— these claims cannot be asserted in this case since, under California law, it would be unconstitutional to permit Plaintiff to do so. Plaintiff’s claims are therefore barred as a matter of law and summary judgment should be granted to Bard on these claims. Shutts, 472 U.S. at 821- 22; Norwest Mortgage, 72 Cal. App. 4th at 222-25. E. This Court Should Dismiss Plaintiff’s Punitive Damages Claim. Plaintiff has asserted a claim for punitive damages in this case. (Complaint, at p. 53). Under Florida law, a claim for punitive damages is only recoverable when there is clear and convincing evidence the defendant personally is guilty of intentional misconduct or gross negligence. See Fla. Stat. § 768.72(2); see also Black v. Kerzner Int’l Holdings Ltd., 958 F. Supp. 2d 1347, 1352 (S.D. Fla. 2013) (“to demonstrate intentional misconduct, the plaintiff must show ‘the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage,’” and to show gross negligence, the plaintiff must show “the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct” (quoting Fla. Stat. § 768.72(2))). Bard denies that punitive damages are appropriate in this case, and denies that any conduct or actions on its part, or on the part of Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 16 of 19 PageID #: 1625 - 12 - any of its employees or agents, in any way rises to the level of heightened culpability that is required to impose exemplary damages under Florida law. Plaintiff also has failed to satisfy her burden of evidentiary proof here. Without any evidence, much less clear and convincing evidence, that Bard is guilty of some type of intentional misconduct or gross negligence, Plaintiff’s claim for punitive damages must fail as a matter of law. Bailey v. St. Louis, 196 So. 3d 375, 379 (Fla. Dist. Ct. App. 2016) (“a plaintiff is required to establish the entitlement to an award of punitive damages by clear and convincing evidence”); Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1035 (11th Cir. 2014) (“Florida law allows punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” (original emphasis; quoting Fla. Stat. § 768.72(2))). To the contrary, the evidence Bard will present at trial will demonstrate that Bard acted appropriately, reasonably and in accordance with all applicable laws, rules, regulations, and guidances, including, without limitations, the rules, regulations, and guidances promulgated by the United States Food & Drug Administration.5 Summary judgment is therefore appropriate as to this claim. CONCLUSION For all of the foregoing reasons, Bard respectfully requests that the Court grant summary on the specific claims set forth above. 5 For all of these reasons, and to avoid doubt, Bard expressly reserves and does not waive its right to contest punitive damages before, during, and, if necessary, after trial. Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 17 of 19 PageID #: 1626 - 13 - Dated: October 18, 2018 Respectfully submitted, GREENBERG TRAURIG, LLP /s/ Lori G. Cohen Lori G. Cohen Terminus 200 3333 Piedmont Road, N.E., Suite 2500 Atlanta, Georgia 30305 (678) 553-2100 (678) 553-2386 (facsimile) CohenL@gtlaw.com Michael K. Brown REED SMITH LLP 355 South Grand Avenue, Suite 2900 Los Angeles, California 90071-1514 (213) 457-8000 mkbrown@reedsmith.com Attorneys for Defendant C. R. Bard, Inc. Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 18 of 19 PageID #: 1627 - 14 - CERTIFICATE OF SERVICE I hereby certify that on October 18, 2018, I caused the foregoing document to be electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the CM/ECF participants registered to receive service in this MDL. /s/ Lori G. Cohen Lori G. Cohen GREENBERG TRAURIG, LLP Attorney for Defendant C. R. Bard, Inc. WPB 384328748v1 Case 2:16-cv-10794 Document 142 Filed 10/18/18 Page 19 of 19 PageID #: 1628