Donna Jager et al v. Davol, Inc. et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.August 12, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 1 - DEFENDANTS DAVOL INC., BARD DEVICES, INC. AND C.R. BARD, INC. NOTICE OF MOTION AND MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Michael K. Brown (SBN 104252) Email: mkbrown@reedsmith.com Marilyn A. Moberg (SBN 126895) Email: mmoberg@reedsmith.com Eric J. Buhr (SBN 217528) Email: ebuhr@reedsmith.com Michelle L. Cheng (SBN 239711) Email: mcheng@reedsmith.com Reed Smith LLP 355 South Grand Avenue Suite 2900 Los Angeles, CA 90071-1514 Telephone: +1 213 457 8000 Facsimile: +1 213 457 8080 Attorneys for Defendants Davol Inc., Bard Devices, Inc. and C.R. Bard, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DONNA JAGER and JOHN JAGER, Plaintiffs, vs. DAVOL INC.; BARD DEVICES, INC.; C.R. BARD; and DOES 1-10, inclusive, Defendants. Case No. 5:16-CV-01424-JGB-KK DEFENDANTS DAVOL INC., BARD DEVICES, INC. AND C.R. BARD, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS Compl. Filed: July 1, 2016 Hearing Date: September 19, 2016 Time: 9:00 a.m. Courtroom: 1 Honorable Jesus G. Bernal [Concurrently Filed With Memorandum of Points and Authorities and [Proposed] Order] Case 5:16-cv-01424-JGB-KK Document 15 Filed 08/12/16 Page 1 of 3 Page ID #:66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 - DEFENDANTS DAVOL INC., BARD DEVICES, INC. AND C.R. BARD, INC. NOTICE OF MOTION AND MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 19, 2016, at 9:00 a.m., or as soon as the matter can be heard in Courtroom 1 of the United States District Court for the Central District of California, Riverside, located at 3470 Twelfth St., Riverside, CA 92501, Defendants Davol Inc., Bard Devices, Inc. and C. R. Bard, Inc. (collectively “Bard”) will and hereby do move the Court for an order granting a Motion to Dismiss the Second, Fourth, Fifth and Sixth Causes of Action and the demand for punitive damages, as alleged in Plaintiffs Donna and John’s (hereinafter “Plaintiffs”) Complaint pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6), for failure to state any claims upon which relief can be granted. Bard’s Motion to Dismiss is made on the grounds that Plaintiffs have failed to fail to state a claim for relief “that is plausible on its face,” as required under Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), as follows: First, Plaintiffs’ Second Cause of Action for strict liability based upon an alleged manufacturing defect cannot survive because the Complaint neither identifies how Plaintiffs’ CK Patch deviated from its intended design or differed from other identical units of the same model, nor alleges how any such deviation caused Plaintiff injury. Instead, Plaintiffs’ allegations are simply that a manufacturing defect must exist because Plaintiff was injured. This claim fails on its face. Plaintiffs cannot infer a manufacturing defect simply because Plaintiffs allege injury. Second, Plaintiffs’ Fourth Cause of Action for breach of express warranty fails for lack of privity, and because Plaintiff fails to allege the specific content of any purported warranty upon which they relied. Third, Plaintiffs’ Fifth and Sixth Causes of Action based on alleged misrepresentations fail because the Complaint’s generalized allegations of fraud do not satisfy the pleading requirements of either Fed. R. Civ. Proc. 8(a) or 9(b). Case 5:16-cv-01424-JGB-KK Document 15 Filed 08/12/16 Page 2 of 3 Page ID #:67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 - DEFENDANTS DAVOL INC., BARD DEVICES, INC. AND C.R. BARD, INC. NOTICE OF MOTION AND MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Finally, Plaintiffs’ demand for punitive damages must be dismissed because the pleadings are insufficient to establish that any of the corporate Defendants acted with malice, oppression or fraud pursuant to California Civil Code Section 3294. Pursuant to Local Rule 7-3, on July 28, 2016, counsel met and conferred regarding this motion. This Motion is based on this Notice; the attached Memorandum of Points and Authorities in Support of the Motion to Dismiss; all papers filed in support of Bard’s Motion; and any further argument that may be presented at the hearing on this matter. Dated: August 12, 2016 REED SMITH LLP By /s/ Michelle L. Cheng Michael K. Brown Marilyn A. Moberg Eric J. Buhr Michelle L. Cheng Attorneys for Defendants Davol Inc., Bard Devices, Inc. and C. R. Bard, Inc. Case 5:16-cv-01424-JGB-KK Document 15 Filed 08/12/16 Page 3 of 3 Page ID #:68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Michael K. Brown (SBN 104252) Email: mkbrown@reedsmith.com Marilyn A. Moberg (SBN 126895) Email: mmoberg@reedsmith.com Eric J. Buhr (SBN 217528) Email: ebuhr@reedsmith.com Michelle L. Cheng (SBN 239711) Email: mcheng@reedsmith.com Reed Smith LLP 355 South Grand Avenue Suite 2900 Los Angeles, CA 90071-1514 Telephone: +1 213 457 8000 Facsimile: +1 213 457 8080 Attorneys for Defendants Davol Inc., Bard Devices, Inc., and C.R. Bard, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DONNA JAGER and JOHN JAGER, Plaintiffs, vs. DAVOL INC.; BARD DEVICES, INC.; C.R. BARD; and DOES 1-10, inclusive, Defendants. Case No. 5:16-CV-01424-JGB-KK DEFENDANTS DAVOL INC., BARD DEVICES, INC., AND C.R. BARD, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS Compl. Filed: July 1, 2016 Hearing Date: September 19, 2016 Time: 9:00 a.m. Courtroom: 1 Honorable Jesus G. Bernal [Concurrently Filed With Notice of Motion and Motion and [Proposed] Order] Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 1 of 25 Page ID #:69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - i - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e TABLE OF CONTENTS Page MEMORANDUM OF POINTS AND AUTHORITIES ............................................... 1 I. INTRODUCTION ............................................................................................... 1 II. ALLEGATIONS IN THE COMPLAINT ........................................................... 2 III. LEGAL STANDARD ......................................................................................... 2 IV. ARGUMENT....................................................................................................... 4 A. Plaintiffs’ Strict Liability Claim For Alleged Manufacturing Defect (Second Cause of Action) Should Be Dismissed Because Plaintiffs Fail To Allege A Deviation From Specifications And Causation ................................................................... 4 B. Plaintiffs’ Claim For Breach Of Express Warranty Is Barred By California Law .......................................................................................... 7 1. Plaintiffs’ Claim for Breach of Express Warranty Fails Because There Is No Privity Between Plaintiffs And The Defendants ...................................................................................... 7 2. Plaintiffs Are Unable To Identify Affirmative Statements That Give Rise To An Express Warranty ....................................... 9 C. Plaintiffs’ Fraud Based Claims (Fifth and Sixth Causes of Action) Should Be Dismissed Because They Are Not Sufficiently Pled ...................................................................................... 11 1. Plaintiffs’ Negligent Misrepresentation Cause Of Action Fails To State A Claim Under Rule 8(a) ...................................... 11 2. Both Plaintiffs’ Negligent Misrepresentation And Intentional Misrepresentation Causes Of Action Are Not Pled With Particularity Under Rule 9(b) ...................................... 12 D. Plaintiffs’ Claim For Punitive Damages Should Be Dismissed ............. 15 V. CONCLUSION ................................................................................................. 18 Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 2 of 25 Page ID #:70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - ii - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e TABLE OF AUTHORITIES Page(s) Cases Adams v. I-Flow Corp., No. CV09-09550 R(SSx), 2010 WL 1339948 (C.D. Cal. Mar. 30, 2010) .......................................................................................................................... 8 Anthony v. Kelsey-Hayes Co., 25 Cal. App. 3d 442 (1972) ....................................................................................... 8 Artiglio v. Superior Court, 22 Cal. App. 4th 1388 (1994) .................................................................................... 7 Ashcroft v. Iqbal, 556 U.S. 662 (2009)..................................................................................... 1, 2, 3, 10 Barker v. Lull Eng’g Co., 20 Cal. 3d 413 (1978) ................................................................................................ 4 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)............................................................................... 1, 2, 3, 10, 16 Bem v. Stryker Corp., No. C 15-2485 MMC, 2015 WL 4573204 (N.D. Cal. July 29, 2015) .................... 17 Blanco v. Baxter Healthcare Corp., 158 Cal. App. 4th 1039 (2008) .................................................................................. 7 Brousseau v. Jarrett, 73 Cal. App. 3d 864 (1977) ..................................................................................... 16 Brown v. Superior Court, 44 Cal. 3d 1049 (1988) .............................................................................................. 7 Chudasama v. Mazda Motor Corp., 123 F.3d 1353 (11th Cir. 1997) ............................................................................... 15 Culpepper v. Volkswagen of Am., Inc., 33 Cal. App. 3d 510 (1973) ....................................................................................... 7 Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 3 of 25 Page ID #:71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - iii - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Currier v. Stryker Corp., No. 2:11-CV-1203 JAM-EFB, 2011 WL 4898501 (E.D. Cal. Oct. 13, 2011) .......................................................................................................................... 8 Deitz v. Comcast Corp., No. C 06-06352 WHA, 2006 WL 3782902 (N.D. Cal. Dec. 21, 2006) .................. 11 Dilley v. C.R. Bard, Inc., No. 2:14-cv-01795-ODW(ASx), 2014 WL 1338877 (C.D. Cal. Apr. 3, 2014) ...................................................................................................................... 5 Dunson v. Cordis Corp., No. 16-cv-03076-SI, 2016 WL 3913666 (N.D. Cal. Jul. 20, 2016) ...................... 4, 5 Erickson v. Boston Sci. Corp., 846 F. Supp. 2d 1085 (C.D. Cal. 2011) ..................................................................... 3 Fox v. Pollack, 181 Cal. App. 3d 954 (1986) ................................................................................... 12 G.D. Searle and Co. v. Superior Court, 49 Cal. App. 3d 22 (1975) ....................................................................................... 17 Granger v. Lowe’s Home Ctrs., LLC, No. 1:14-CV-01212-KJM-SKO, 2014 WL 4976134 (E.D. Cal. Oct. 3, 2014) ........................................................................................................................ 16 Hawkins v. Medtronic, Inc., No. 1:13-CV-00499 AWI SKO, 2014 WL 346622 (E.D. Cal. Jan. 30, 2014) .................................................................................................................... 4, 13 Henderson v. Harnischfeger Corp., 12 Cal. 3d 663 (1974) ................................................................................................ 7 Houston v. Medtronic, Inc., 957 F. Supp. 2d 1166 (C.D. Cal. 2013) ................................................................... 14 Hunter v. Up-Right, Inc., 6 Cal. 4th 1174 (1993) ............................................................................................. 13 In re Actimmune Mktg. Litig., No. C 08-02376 MHP, 2009 WL 3740648 (N.D. Cal. Nov. 6, 2009), aff’d, 464 F. App’x 651 (9th Cir. 2011) .................................................................. 15 Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 4 of 25 Page ID #:72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - iv - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e In re Clorox Consumer Litig., 894 F. Supp. 2d 1224 (N.D. Cal. 2012) ................................................................... 10 In re Coordinated Latex Glove Litig., 99 Cal. App. 4th 594 (2002) ...................................................................................... 4 In re GlenFed, Inc., Sec. Litig., 42 F.3d 1541 (9th Cir. 1994) ................................................................................... 13 In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Products Liab. Litig., 754 F. Supp. 2d 1145 (C.D. Cal. 2010) ..................................................................... 9 In re Toyota Unintended Acceleration Mktg., Sales Practices, and Prods. Liab. Litig., 754 F. Supp. 2d 1208 (C.D. Cal. 2010) ..................................................................... 3 Keith v. Buchanan, 173 Cal. App. 3d 13 (1985) ....................................................................................... 9 Kelley v. Corrections Corp. of Am., 750 F. Supp. 2d 1132 (E.D. Cal. 2010) ................................................................... 16 Knoppel v. St. Jude Med., Inc., No. SACV 13-383 JVS (ANx), 2013 WL 3803612 (C.D. Cal. May 7, 2013) .......................................................................................................................... 3 Lucas v. City of Visalia, 726 F. Supp. 2d 1149 (E.D. Cal. 2010) ..................................................................... 5 Mirkin v. Wasserman, 5 Cal. 4th 1082 (1993) ............................................................................................. 15 Mountain Club Owner’s Ass’n v. Graybar Elec. Co., Civ. No. 2:13-1835 WBS KJN, 2014 WL 130767 (E.D. Cal. Jan. 14, 2014) .......................................................................................................................... 3 Nabors v. Google, Inc., No. 5:10-CV-03897 EJD (PSG), 2011 WL 3861893 (N.D. Cal. Aug. 30, 2011) .............................................................................................................. 9, 10 Petersen v. Allstate Indem. Co., 281 F.R.D. 413 (C.D. Cal. 2012) ................................................................. 11, 12, 13 Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 5 of 25 Page ID #:73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - v - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Phillips v. Cty. of Allegheny, 515 F.3d 224 (3d Cir. 2008) ...................................................................................... 3 Quatela v. Stryker Corp., 820 F. Supp. 2d 1045 (N.D. Cal. 2010) ................................................................... 11 Rhynes v. Stryker Corp., No. 10-5619 SC, 2011 WL 2149095 (N.D. Cal. May 31, 2011) .............................. 3 Semegen v. Weidner, 780 F.2d 727 (9th Cir. 1985) ................................................................................... 13 Smith v. LG Elecs. U.S.A., Inc., 2014 WL 989742 (N.D. Cal. Mar. 11, 2014) .......................................................... 10 Soule v. Gen. Motors Corp., 8 Cal. 4th 548 (1994) ................................................................................................. 4 Summit Tech., Inc. v. High-Line Med. Instruments Co., 922 F. Supp. 299 (C.D. Cal. 1996) ............................................................................ 6 Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) ................................................................................... 13 Tapia v. Davol, Inc., 116 F. Supp. 3d 1149 (S.D. Cal. 2015) ................................................... 5, 10, 11, 14 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) ................................................................................. 13 Wendell v. Johnson & Johnson, No. C 09-04124 CW, 2010 WL 2465456 (N.D. Cal. June 14, 2010) ..................... 17 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970 (9th Cir. 2010) ................................................................................... 15 Yagman v. Gen. Motors Co., No. CV-14-4696-MWF, 2014 WL 4177295 (C.D. Cal. Aug. 22, 2014) .......................................................................................................................... 6 Statutes Cal. Civ. Code § 3294 ......................................................................................... 2, 15, 16 Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 6 of 25 Page ID #:74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - vi - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Cal. Civ. Code § 3294(a) ........................................................................................ 16, 18 Cal. Civ. Code § 3294(b) ........................................................................................ 17, 18 Other Authorities 4 Bernard E. Witkin, Summary of California Law, Torts, §§ 480-482 (8th ed. 1974) .................................................................................................................. 12 CACI No. 1202 ............................................................................................................... 4 Fed. R. Civ. P. 8(a) ....................................................................................... 2, 11, 12, 18 Fed. R. Civ. P. 9 ...................................................................................................... 11, 12 Fed. R. Civ. P. 9(b) ................................................................................................ passim Fed. R. Civ. P. 12(b)(6) ............................................................................................ 2, 15 Judicial Council of California Civil Jury Instructions (June 2015 Supp.) ..................... 4 Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 7 of 25 Page ID #:75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 1 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In this product liability action, Plaintiffs allege that Plaintiff Donna Jager suffered personal injuries from an alleged implantation of a Composix® Kugel® Hernia Patch (hereinafter “CK Patch”)1 to repair a hernia. The Complaint alleges claims for negligence; strict liability for manufacturing defect and failure-to-warn; breach of express warranty; negligent and intentional misrepresentation; and loss of consortium. Plaintiffs also demand punitive damages. However, many of these claims are supported by only conclusory allegations that fail to meet the pleading standards provided by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). They also fail as a matter of California law. Specifically, the Second, Fourth, Fifth, and Sixth Causes of Action of the Complaint and the demand for Punitive Damages, should be dismissed for the following reasons: First, Plaintiffs’ Second Cause of Action for strict liability based upon an alleged manufacturing defect cannot survive because the Complaint neither identifies how Plaintiffs’ CK Patch deviated from its intended design or other identical units, nor how any such deviation caused Plaintiff injury. Instead, Plaintiffs’ allegations are simply that a manufacturing defect must exist because Plaintiff was injured. This claim fails on its face. Plaintiffs cannot infer a manufacturing defect simply because Plaintiffs allege injury. Second, Plaintiffs’ Fourth Cause of Action for breach of express warranty fails for lack of privity, and because Plaintiffs fail to allege the specific content of any purported warranty upon which they relied. Third, Plaintiffs’ Fifth and Sixth Causes of Action based on alleged 1 Although the Complaint specifically alleges that Plaintiff Donna Jager was implanted with a Composix® Kugel® Patch, Plaintiffs generally refer to the product as a “Kugel Patch” throughout the Complaint. To be clear, the Kugel Patch is a different product from the Composix® Kugel® Patch. For accuracy, Defendants will refer to the subject product as a “CK Patch.” Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 8 of 25 Page ID #:76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e misrepresentations fail because the Complaint’s generalized allegations of fraud do not satisfy the pleading requirements of either Federal Rule of Civil Procedure, Rule 8(a) or 9(b). Finally, Plaintiffs’ demand for punitive damages must be dismissed because the pleadings are insufficient to establish that any of the corporate Defendants acted with malice, oppression or fraud pursuant to California Civil Code Section 3294. For all these reasons, Defendants’ Motion to Dismiss the Second, Fourth, Fifth and Sixth Causes of Action and demand for Punitive Damages should be granted. II. ALLEGATIONS IN THE COMPLAINT The Complaint alleges that on or about October 4, 2004, Plaintiff Donna Jager underwent a hernia repair procedure during which a Bard® Composix® Kugel® Hernia Patch (Ref. #0010206, Lot#43DOD291) (hereinafter, “CK Patch”) was implanted. Compl. at ¶ 51. Over a decade later, on or about April 15, 2015,2 Plaintiff alleges she developed a hernia mesh infection that required further surgery. Compl. at ¶ 53. On April 15, 2015, Plaintiff underwent an exploratory laparotomy, open ventral hernia repair, and an appendectomy. Compl. at ¶ 54. Plaintiff claims that in the operative report, the surgeon observed that the “ring from the Bard mesh had fractured and was poking into the tip of [Plaintiff’s] appendix.” Compl. at ¶ 56. III. LEGAL STANDARD Dismissal under Federal Rule of Civil Procedure, Rule 12(b)(6) is appropriate where the complaint fails to state a claim for relief “that is plausible on its face.” Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. It is “plaintiff’s obligation to provide . . . more than labels and conclusions” 2 In some instances, the Complaint alleges that Plaintiff Donna underwent surgery on April 3, 2015. Compl. at ¶ 81. For purposes of consistency in this Motion, Defendants will assume that the first provided date, April 15, 2015, is the correct date. Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 9 of 25 Page ID #:77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e [Twombly, 550 U.S. at 555], and federal courts are “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); see also Erickson v. Boston Sci. Corp., 846 F. Supp. 2d 1085, 1089-90 (C.D. Cal. 2011). Where a product liability complaint offers only generalized and unsupported allegations of product defect, courts routinely grant motions to dismiss because no plausible claim has been stated. See, e.g., Mountain Club Owner’s Ass’n v. Graybar Elec. Co., Civ. No. 2:13-1835 WBS KJN, 2014 WL 130767, at *2-3 (E.D. Cal. Jan. 14, 2014) (granting motion to dismiss manufacturing defect and negligence claims due to the plaintiff’s failure to allege facts related to defect); Knoppel v. St. Jude Med., Inc., No. SACV 13-383 JVS (ANx), 2013 WL 3803612, at *2-3 (C.D. Cal. May 7, 2013) (granting motion to dismiss product liability claims because the plaintiff pled conclusory allegations lacking any facts related to defect or causation failed to state viable claims); Rhynes v. Stryker Corp., No. 10-5619 SC, 2011 WL 2149095, at *2-3 (N.D. Cal. May 31, 2011) (granting motion to dismiss strict liability claim and negligence claims as conclusory allegations failed to allege causation, among other reasons); In re Toyota Unintended Acceleration Mktg., Sales Practices, and Prods. Liab. Litig., 754 F. Supp. 2d 1208, 1220, 1223 (C.D. Cal. 2010) (“‘[a] bare allegation that the [product] had ‘a manufacturing defect’ is an insufficient legal conclusion’” and “[a] bare allegation that the product ‘suffered from a “design defect” is an insufficient legal conclusion’ under Twombly and Iqbal”); Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (“without some factual allegation[s] in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice,’ but also the ‘grounds’ on which the claim rests”). Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 10 of 25 Page ID #:78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e IV. ARGUMENT A. Plaintiffs’ Strict Liability Claim For Alleged Manufacturing Defect (Second Cause of Action) Should Be Dismissed Because Plaintiffs Fail To Allege A Deviation From Specifications And Causation Plaintiffs’ Second Cause of Action for strict liability for an alleged manufacturing defect is deficient because the Complaint is devoid of any facts demonstrating how Plaintiffs’ CK Patch deviated from the intended design specifications or others in its lot, or how such deviation caused Plaintiff Donna’s alleged injuries. Therefore, Plaintiffs’ claim for manufacturing defect should be dismissed. Under California law, “[a] product contains a manufacturing defect if the product differs from the manufacturer’s design or specifications or from other typical units of the same product line.” Judicial Council of California Civil Jury Instructions (June 2015 Supp.), CACI No. 1202; see also In re Coordinated Latex Glove Litig., 99 Cal. App. 4th 594, 605 (2002) (a product is defectively manufactured where it “differs from the manufacturer's intended result or from other ostensibly identical units of the same product line” (quoting Barker v. Lull Eng’g Co., 20 Cal. 3d 413, 429 (1978) (emphasis omitted)). A manufacturing defect “presuppose[s] that a suitable design is in place, but that the manufacturing process has in some way deviated from that design.” Id. at 613; see also Dunson v. Cordis Corp., No. 16-cv-03076-SI, 2016 WL 3913666, at *6, (N.D. Cal. Jul. 20, 2016) (a manufacturing defect analysis “ʻfocuses on the “result” of the manufacturing process - whether the product came off the production line defective in some way’”) (citations omitted). Furthermore, a plaintiff must allege causation-that the specific manufacturing defect identified in plaintiff’s product resulted in plaintiff’s alleged injury. See Soule v. Gen. Motors Corp., 8 Cal. 4th 548, 572 (1994) (“A manufacturer is liable only when a defect in its product was a legal cause of injury.”); see also Hawkins v. Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 11 of 25 Page ID #:79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 5 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Medtronic, Inc., No. 1:13-CV-00499 AWI SKO, 2014 WL 346622, at *8 (E.D. Cal. Jan. 30, 2014) (dismissing products liability cause of action where complaint provided only a “conclusory allegation” of causation, meaning “his right to relief has not risen above the speculative level”). Therefore, to state a viable manufacturing defect claim, a plaintiff must both identify the specific manufacturing defect and causally connect it to her injury. In Dilley v. C.R. Bard, Inc., No. 2:14-cv-01795-ODW(ASx), 2014 WL 1338877, at *3 (C.D. Cal. Apr. 3, 2014), the court dismissed the manufacturing defect claim involving one of Bard’s other hernia patches because the plaintiff had failed to allege any facts that identified or explained how the medical devices at issue deviated from the defendant’s intended design or other seemingly identical units. The court was not convinced that a blanket statement that a “defect in [the device’s] manufacture that caused them to shrink, harden, and scarify….” stated a claim for a manufacturing defect. Id. Following another California federal court, the Dilley court agreed that the plaintiff failed to “ʻidentify/explain how the [product] either deviated from [the manufacturer’s] intended result/design or how the [product] deviated from other seemingly identical [products]. A bare allegation that the [product] had “a manufacturing defect” is an insufficient legal conclusion.’” Id. (quoting Lucas v. City of Visalia, 726 F. Supp. 2d 1149, 1155 (E.D. Cal. 2010) (emphasis in bold added)); Dunson, 2016 WL 3913666, at *6 (granting motion to dismiss on manufacturing defect claim because the plaintiffs failed to identify how the purported manufacturing defect differed from the defendants’ intended design); compare with Tapia v. Davol, Inc., 116 F. Supp. 3d 1149, 1157 (S.D. Cal. 2015) (allowing a strict liability claim based upon an alleged manufacturing defect at the pleading stage where complaint alleged that the medical device did not work as intended). Here, Plaintiffs do not allege any facts identifying or explaining how the CK Patch used in Plaintiff Donna’s hernia repair procedure either deviated from Davol’s Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 12 of 25 Page ID #:80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 6 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e intended design or differed from identical units of the same model. Indeed, the central thrust of Plaintiffs’ complaint is that the CK Patch at issue must have been defective because it was manufactured within a lot of CK Patches that were subject to a recall. Compl. at ¶ 32, 33 (alleging that Plaintiffs’ CK Patch was within the lot that was recalled in December 2005 and January 2006).3 But the fact of a recall by itself does not itself lead to the inference that there was a manufacturing defect in the device Plaintiff received. While Plaintiffs conclusorily allege in Paragraph 83 of their Complaint that “Defendants’ manufacturing defect is readily identifiable”, Plaintiffs do not identify the defect, and instead, point to the allegation that the CK Patch did not perform as intended. Compl. at ¶ 83. Plaintiffs also state conclusorily that “[t]here are a variety of manufacturing and material factors that influence the failure of the Defendants’ Kugel Patch,” but do not identify a single manufacturing or material factor in their Complaint. Id. at ¶ 84. Plaintiffs’ allegations appear to be based on a purported design defect that affected all of the CK Patches, including the one implanted in Plaintiff. In addition to alleging a specific manufacturing defect, Plaintiffs must do more than rely on allegations of complications or device malfunction; Plaintiffs must allege facts that establish a causal relationship between some purported defect in the manufacture of Plaintiffs’ CK Patch on the one hand, and Plaintiffs’ injuries on the other. See Yagman v. Gen. Motors Co., No. CV-14-4696-MWF (AGRx), 2014 WL 3 Plaintiffs point to a “2007 FDA Warning Letter” that the FDA issued after it conducted an inspection of the Davol manufacturing facility on January 27-March 13, 2007. Compl. at ¶ 43. But, Plaintiffs also allege that the CK Patch implanted in Plaintiff was manufactured within a lot of CK Patches that were recalled more than a year earlier, during December 2005-January 2006 period. Id. at ¶ 32, n. 4. Therefore, Plaintiffs fail to connect the specific device Plaintiff received, with any purported deficiencies identified in the 2007 FDA Warning Letter. Furthermore, the fact that a Warning Letter is not indicative of any finding of a “manufacturing defect”; Warning Letters are informal and advisory, and do not amount to a final agency action vis-à-vis a manufacturer. Summit Tech., Inc. v. High-Line Med. Instruments Co., 922 F. Supp. 299, 306 (C.D. Cal. 1996) (holding that FDA warning letters do not amount to an FDA position on a matter because the FDA can change its final determination based on further investigation). Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 13 of 25 Page ID #:81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 7 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e 4177295, at *3 (C.D. Cal. Aug. 22, 2014) (dismissing manufacturing defect claim because “Plaintiff [ ] has only alleged an injury, not a defect. . . . It may be true that a manufacturing defect is the cause of the harm Plaintiff alleges. Plaintiff has not, however, pled sufficient facts to support his suggestion that a manufacturing defect is a plausible cause of the harm”); see also Culpepper v. Volkswagen of Am., Inc., 33 Cal. App. 3d 510, 519 (1973) (“[P]laintiff does not make a prima facie case by simply showing that she was injured.”); Henderson v. Harnischfeger Corp., 12 Cal. 3d 663, 676 (1974) (plaintiff may not recover under any product defect theory “simply because an accident has occurred” ). This is particularly true for prescription medical devices, like the CK Patch at issue here, which the California Supreme Court has recognized carry “unavoidable” risks for some patients. See Brown v. Superior Court, 44 Cal. 3d 1049, 1062 (1988)(prescription drugs); Artiglio v. Superior Court, 22 Cal. App. 4th 1388, 1393-97 (1994) (extending Brown to medical devices). Because Plaintiffs have failed to plead sufficient facts describing how Plaintiffs’ CK Patch deviated from Defendants’ intended design or differed from other seemingly identical units of the same model, and cannot draw any causal connection between the device and Plaintiff’s injuries, they have not sufficiently alleged a manufacturing defect. Plaintiffs’ manufacturing claim should be dismissed. B. Plaintiffs’ Claim For Breach Of Express Warranty Is Barred By California Law Plaintiffs’ express warranty claim fails to state a claim because Plaintiffs have never been in privity of contract with Defendants, and Plaintiffs have not plead facts establishing any warranty or representation that became the basis of the warranty. 1. Plaintiffs’ Claim for Breach of Express Warranty Fails Because There Is No Privity Between Plaintiffs And The Defendants Under California law, privity between buyer and seller is a necessary element to any claim for breach of warranty. Blanco v. Baxter Healthcare Corp., 158 Cal. App. Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 14 of 25 Page ID #:82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 8 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e 4th 1039, 1058-59 (2008) (“‘The general rule is that privity of contract is required in an action for breach of either express or implied warranty . . . .’”) (quoting All West Elecs., Inc. v. M-B-W, Inc., 64 Cal. App. 4th 717, 725 (1998)); Currier v. Stryker Corp., No. 2:11-CV-1203 JAM-EFB, 2011 WL 4898501, at *4 (E.D. Cal. Oct. 13, 2011) (ruling that “there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale”). A pleadings based challenge is properly sustained in an action where a plaintiff does not allege such privity. Anthony v. Kelsey-Hayes Co., 25 Cal. App. 3d 442, 448 (1972). Nowhere in the Complaint do Plaintiffs allege that they dealt directly with any of the three Defendants, identified which of the three Defendants they dealt with, or asserted that they entered into a contract with Defendants for purchase of Plaintiff Donna’s CK Patch; nor could they, as the CK Patch is a prescription medical device sold directly to hospitals providing the service of implantation - not consumers. See Currier, 2011 WL 4898501, at *4 (“Because this is a medical implant case, and the FAC alleges that the product was surgically inserted in a hospital, the Court cannot plausibly infer . . . that Plaintiff relied on anything other than his physician’s skill and judgment in selecting [the product], nor that any purchase of the product was based on a warranty from the manufacturer to Plaintiff.”); Adams v. I-Flow Corp., No. CV09- 09550 R(SSx), 2010 WL 1339948, at *4 (C.D. Cal. Mar. 30, 2010) (“Under controlling California law, privity between the patient and the manufacturer of medical device or pharmaceutical product is a necessary component of breach of warranty claims.”). Accordingly, Plaintiffs’ claim for breach of express warranty fails for lack of privity and on this ground alone, this claim must be dismissed with prejudice as it cannot be cured by subsequent amendment. Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 15 of 25 Page ID #:83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 9 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e 2. Plaintiffs Are Unable To Identify Affirmative Statements That Give Rise To An Express Warranty Assuming that Plaintiffs can even overcome the privity hurdle - and Defendants assert they cannot - Plaintiffs’ breach of express warranty claim fails because Plaintiffs have not pled sufficient facts establishing that Defendants made statements constituting an affirmation of fact or promise or a description of the goods that became a part of the basis of the bargain and was subsequently breached. Keith v. Buchanan, 173 Cal. App. 3d 13, 20 (1985). Courts have interpreted this standard to require that a representation be made as a part of the basis of the bargain, or that it be a factor or consideration inducing the buyer to enter into the bargain. Id. at 23. Here, Plaintiffs provide no specific representations that formed the basis of their bargain with Defendants. Plaintiffs’ claim instead rests on generic references to representations purportedly given by “officers, directors, agents, representatives, and written literature and packaging, and written and media advertisement….” See Compl. at ¶ 109. Not only do Plaintiffs fail to identify which of the three corporate Defendants purportedly provided such written representations, but Plaintiffs fail to identify the particular commercial or advertisement upon which they or their prescribing physician relied and became the basis of a bargain, likely because no direct to consumer advertisement for the CK Patch exists. See Nabors v. Google, Inc., No. 5:10-CV-03897 EJD (PSG), 2011 WL 3861893, at *4 (N.D. Cal. Aug. 30, 2011) (requiring the plaintiff to identify “the particular commercial or advertisement upon which he relied and must describe with requisite specificity the content of that particular commercial or advertisement”); see also In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Products Liab. Litig., 754 F. Supp. 2d 1145, 1183 (C.D. Cal. 2010) (finding that “California law does not permit Plaintiffs, in the absence of specific allegations that they were aware of the statements made in a national advertising campaign, to base their express warranty claims on Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 16 of 25 Page ID #:84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e statements made in that national advertising campaign”); In re Clorox Consumer Litig., 894 F. Supp. 2d 1224, 1235 (N.D. Cal. 2012) (allegation that plaintiff relied on “product labels” fell “far short of the plausibility and notice requirements set forth in Iqbal & Twombly”, because defendant “ would need to guess at which labels and which packaging form the basis of Plaintiffs’ claim.”). To the extent that Plaintiffs rely on vague allegations about express warranties in the “packaging” that accompanied the CK Patch as the basis for the bargain [Compl. ¶ 110], that too is insufficient to state a breach of warranty claim. For example, the court in Nabors dismissed the breach of express warranty claim because allegations about the mobile phone’s capability and its subsequent inability to provide the represented performance and speed, were too generalized and not “equivalent to a recitation of the exact terms of the underlying warranty….” Nabors, 2011 WL 3961893, *4. The allegations of a warranty are even more vague here. Mere allegations that the CK Patch was “safe and fit for its intended purpose” or was of “merchantable quality” in that it did not “pose dangerous health risks in excess of those risks associated with the use of other similar hernia repair devices” are inherently too vague and general, and therefore, not actionable in a breach of warranty context. Smith v. LG Elecs. U.S.A., Inc., 2014 WL 989742, at *6 (N.D. Cal. Mar. 11, 2014) (noting that “District courts within the Ninth Circuit have found that words such as ʻreliable’ and ʻdependable’are inherently vague and general [in breach of warranty cases], and therefore are non-actionable, and that words regarding ʻsafety’ and ʻfitness for use’ are not the unequivocal sorts of statements that can give rise to contractual obligations”), compare Tapia, 116 F. Supp. 3d at 1162 (determining that statements that a device is “safe and fit for use by consumers, was of merchantable quality, did not produce dangerous side effects, and was adequately tested and fit for its intended Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 17 of 25 Page ID #:85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e use” could constitute an express warranty at the pleading stage).4 Because Plaintiffs cannot allege a breach of express warranty claim, it should be dismissed with prejudice. C. Plaintiffs’ Fraud Based Claims (Fifth and Sixth Causes of Action) Should Be Dismissed Because They Are Not Sufficiently Pled Plaintiffs attempt to state two claims that sound in deceit and fraud: Negligent Misrepresentation (Fifth Cause of Action) and Intentional Misrepresentation (Sixth Cause of Action). Both claims fail for their failure to be pled with the particularity required under either Rule 8(a) or the heightened pleading requirement found in Rule 9(b). 1. Plaintiffs’ Negligent Misrepresentation Cause Of Action Fails To State A Claim Under Rule 8(a) For purposes of this motion, Defendants will evaluate the Negligent Misrepresentation claim under both Rule 8(a) and Rule 9 because it is yet unsettled within the Ninth Circuit as to whether a Negligent Misrepresentation claim is subject to the pleading requirements of Rule 8(a) or the heightened pleading requirements of Rule 9(b). Compare Deitz v. Comcast Corp., No. C 06-06352 WHA, 2006 WL 3782902, at *6 (N.D. Cal. Dec. 21, 2006) (applying Rule 9(b) to negligent misrepresentation claim) and Tapia, 116 F. Supp. 3d at 1163 (same), with Petersen v. Allstate Indem. Co., 281 F.R.D. 413, 418 (C.D. Cal. 2012) (noting that a “tide of precedent” is turning and applying Rule 8(a) to a negligent misrepresentation claim). Regardless of which pleading standard applies, Plaintiff’s negligent misrepresentation claim is still insufficiently pled. A Negligent Misrepresentation claim is a “form of deceit, the elements of which 4 While Plaintiffs have captioned this action as a Breach of Express Warranty, the vague allegations that the CK Patch is “safe and fit for its intended purpose” or that it was warranted to be of “merchantable quality,” sound in a claim for Breach of Implied Warranty for Merchantability, a claim that would be barred for Plaintiffs’ lack of privity between them and Defendants. See Quatela v. Stryker Corp., 820 F. Supp. 2d 1045, 1047-48 (N.D. Cal. 2010). Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 18 of 25 Page ID #:86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e consist of (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages.” Fox v. Pollack, 181 Cal. App. 3d 954, 962 (1986) (citing 4 Bernard E. Witkin, Summary of California Law, Torts, §§ 480-482 (8th ed. 1974)); see Petersen, 281 F.R.D. at 417 (finding that plaintiff must plead facts establishing that the defendant lacked any reasonable ground for believing its statement to be true). No matter which pleading standard applies, Plaintiffs fail to state any facts that establish that the Defendants made any misrepresentations to Plaintiffs and/or their physician while lacking any reasonable grounds for believing them to be true, or that any misrepresentations were made with an intent to induce Plaintiffs’ and/or their physician’s reliance on the misrepresentation. Plaintiffs only allege that the Defendants “knew or should have known” that the CK Patch was defective, but do not allege any facts establishing why or how the Defendants could have known that the CK Patch was defective before the device was sold. Compl. at ¶ 118; see also id. at ¶ 25 (stating without any specificity that no later than 2003, the Defendants were “put on notice as to the serious problems with the memory recoil ring’s weld process”). There are also no allegations that Defendants intended to induce Plaintiffs and/or their physicians into relying on the misrepresentation. Such perfunctory allegations - without anything more - is insufficient to establish the necessary elements of a Negligent Misrepresentation cause of action under either Rule 8(a) or Rule 9. 2. Both Plaintiffs’ Negligent Misrepresentation And Intentional Misrepresentation Causes Of Action Are Not Pled With Particularity Under Rule 9(b) Under the heightened pleading requirement set forth in Rule 9(b) for claims Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 19 of 25 Page ID #:87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e sounding in fraud, both misrepresentation claims also fail. In order to establish a cause of action for Intentional Misrepresentation, a plaintiff must establish (1) misrepresentation (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. See Hunter v. Up-Right, Inc., 6 Cal. 4th 1174, 1184 (1993) (finding no fraud where it “[could not] be said that [plaintiff] relied to his detriment on the misrepresentation,” rendering claim “without substance”). The Negligent Misrepresentation claim, as noted supra, differs from the Intentional Misrepresentation claim insofar as it requires only that the defendant lacked any reasonable ground for believing its statement to be true. Petersen, 281 F.R.D. at 417. Under Rule 9(b), the allegation of fraud must be “specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). Plaintiffs must plead “ʻthe who, what, when, where, and how’ of the misconduct charged” [Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (citation omitted)], and the Complaint must set forth “what is false or misleading about a statement, and why it is false.” In re GlenFed, Inc., Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (superseded by statute on other grounds); see also Hawkins, 2014 WL 346622, at *12 (dismissing fraud pleadings where complaint failed to plead specific content of allegedly false representations and why they were untrue). First, Plaintiffs’ fraud claims are all levied at “Defendants” generally, and do not identify which Defendant is alleged to have made the misrepresentations or omissions, let alone the specific persons who made the fraudulent statements. Swartz v. KPMG LLP, 476 F.3d 756, 764-65 (9th Cir. 2007) (“Rule 9(b) does not allow a complaint to merely lump multiple defendants together but ʻrequire[s] plaintiffs to differentiate their allegations when suing more than one defendant . . . and inform each defendant separately of the allegations surrounding his alleged participation in Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 20 of 25 Page ID #:88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e the fraud.”) (citation omitted); Tapia, 116 F. Supp. 3d at 1163 (noting that “a plaintiff must ʻallege the names of the persons who made the allegedly fraudulent misrepresentations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’”) (citation omitted). The Complaint only purports to allege that the unspecified “Defendants” misrepresented that the CK Patch, “was safe and met all applicable design and manufacturing requirements” [Compl. at ¶ 118] and that they knowingly and intentionally continu[ed] to market, promote, and sell the Kugel Patch for years without any warning as to the known high risk of serious injury and complications [Compl. at ¶ 124], but nowhere does it identify who from Defendants made such statements or concealed information, or when and where any such statement was made. Second, Plaintiffs’ fraud-based claims also fail “to allege the specific contents of those representations . . . . which parts of the misrepresentations were misleading, and why they are false.” Houston v. Medtronic, Inc., 957 F. Supp. 2d 1166, 1180 (C.D. Cal. 2013). The gravamen of these allegations is that Defendants, in promoting and selling the CK Patch, omitted or misrepresented facts about the device to Plaintiffs and their physician despite their knowledge of complaints and adverse event reports regarding the CK Patch. This essentially amounts to a failure to warn claim, as Plaintiffs have not pled the specific contents of what the Defendants misrepresented, let alone why they were false or misleading at the time they were stated. Third, the Complaint fails to allege any facts regarding any specific misrepresentation or omission upon which Plaintiffs and/or their specific physician relied. Plaintiffs’ inability to plead actual reliance makes clear that their fraud claims in reality depend on a “fraud-on-the-market” theory of causation, which is not sustainable under California law. For example, in their cause of action for Intentional Misrepresentation (Sixth Cause of Action), Plaintiffs allege that Defendants Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 21 of 25 Page ID #:89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 15 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e “knowingly and intentionally continu[ed] to market, promote, and sell the Kugel Patch for years without any warning as to the known high risk of serious injury and complications, so as to maximize its sales and profits at the expense of the health and safety of the public and of Plaintiff herein.” Compl. at ¶ 124. But, fraud-on-the-market is confined to federal claims of securities fraud, and has been specifically rejected in prescription medical device cases. See Mirkin v. Wasserman, 5 Cal. 4th 1082, 1100 (1993) (“California law does not permit plaintiffs to state a cause of action for deceit without pleading actual reliance [i.e., fraud-on-the market]”); In re Actimmune Mktg. Litig., No. C 08-02376 MHP, 2009 WL 3740648, at *14 (N.D. Cal. Nov. 6, 2009) (rejecting plaintiffs’ argument “that defendants ‘saturated’ the market for information regarding Actimmune, and thus plaintiffs’ doctors necessarily relied upon defendants’ misrepresentations when choosing to prescribe Actimmune” as “nothing more than a repackaging of the ‘fraud on the market’ theory” previously rejected by the court), aff’d, 464 F. App’x 651 (9th Cir. 2011); see also Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1369 n.39 (11th Cir. 1997) (“The fraud on the market theory of securities law, however, is based on concepts and policies that simply do not apply in a products liability case”). Accordingly, Plaintiffs’ Fifth and Sixth Causes of Action should be dismissed for their failure to state a claim with the requisite particularity demanded under Rule 9(b). D. Plaintiffs’ Claim For Punitive Damages Should Be Dismissed Plaintiffs’ request for punitive damages should be dismissed under Rule 12(b)(6) because they do not allege facts showing the requisite oppression, fraud, or malice committed by any of the corporate Defendants pursuant to the requirements of California Civil Code section 3294.5 5 The proper medium for challenging the sufficiency of factual allegations related to punitive damages is Rule 12(b)(6). Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974-75 (9th Cir. 2010). Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 22 of 25 Page ID #:90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e To recover punitive damages in a tort action under California law, plaintiff must plead and prove by “clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice . . . .” See Cal. Civ. Code § 3294(a) (emphasis added); Brousseau v. Jarrett, 73 Cal. App. 3d 864, 872 (1977). While in federal court Section 3294 provides the substantive law for punitive damages, District Courts sitting in California apply federal pleading standards to assess whether the allegations are sufficient to state a demand for punitive damages. Thus, a demand for punitive damages must set forth factual allegations sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Accordingly, dismissal of punitive damages claims with prejudice is proper where the complaint fails to state specific facts supporting allegations of malice, oppression or fraud. Mere conclusory recitations of “ʻconscious disregard of [Plaintiff's] rights and with the intent to vex, injure and annoy [Plaintiff] such as to constitute oppression, fraud or malice” are not considered sufficient. Kelley v. Corrections Corp. of Am., 750 F. Supp. 2d 1132, 1146 (E.D. Cal. 2010); see Granger v. Lowe’s Home Ctrs., LLC, No. 1:14-CV-01212-KJM- SKO, 2014 WL 4976134, at *6 (E.D. Cal. Oct. 3, 2014) (following Kelley to hold that conclusory allegations that the defendants’ actions were “intentional and malicious” were not sufficient to state a demand for punitive damages and stating that the complaint “may at most imply negligence, carelessness, and surprising ineptitude”). Here, Plaintiffs’ punitive damages demand [Compl., Section V, Paragraph C], which appear to depend entirely on the viability of their Intentional Misrepresentation (Sixth) Cause of Action, are insufficient as they state conclusorily that the three corporate Defendants acted with “gross negligence and willful and wanton disregard for the safety of the general public and Plaintiff….” Compl. at ¶ 124.6 But these allegations are too vague and conclusory to give rise to punitive damages demand. 6 Should the Court dismiss Plaintiffs’ Intentional Misrepresentation cause of action with prejudice, Plaintiffs’ demand for punitive damages should likewise be stricken. Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 23 of 25 Page ID #:91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Plaintiffs allege that Defendants had “actual knowledge of complaints and adverse event reports” regarding the CK Patch, and acted with “gross negligence and willful and wanton disregard for the safety of the general public and Plaintiff” without providing any warnings. Compl. ¶ 124. While Plaintiffs contend that there were “misrepresentations” “undertaken with the intent of defrauding and deceiving...”, Plaintiffs do not identify a single misrepresentation or allege any facts supporting the claim that Defendants acted with any intent to defraud or deceive. Id. at ¶ 126; see also G.D. Searle and Co. v. Superior Court, 49 Cal. App. 3d 22, 27-32 (1975) (holding allegations that defendant drug manufacturer was aware of certain risks, but put it on the market anyway are not sufficient for punitive damages). These allegations are also insufficient because they fail to distinguish among the three Defendants. The Complaint draws no distinction among Defendants to differentiate who caused the injury, how each Defendant caused the specific injury, or when each Defendant caused the injury. In order to provide Defendants with fair notice of the punitive damages demand against them, Plaintiffs must be required to allege more than generic boilerplate allegations and provide factually specific allegations of conduct on the part of each Defendant that would support punitive damages. The punitive damages demand also fails because “[w]ith respect to a corporate employer, the advance knowledge and conscious disregard . . . must be on the part of an officer, director, or managing agent of the corporation.” Cal. Civ. Code § 3294(b). Here, Plaintiffs have failed to allege any facts that any officer, director, or managing agent for each of the corporate Defendants acted with any malice, oppression or fraud, or otherwise authorized or ratified the wrongful conduct. See Bem v. Stryker Corp., No. C 15-2485 MMC, 2015 WL 4573204, at *2 (N.D. Cal. July 29, 2015) (dismissing the punitive damages claim for failure to allege necessary facts for a corporate defendant in a medical device case); Wendell v. Johnson & Johnson, No. C 09-04124 CW, 2010 WL 2465456, at *6 (N.D. Cal. June 14, 2010) (punitive damages not viable Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 24 of 25 Page ID #:92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 18 - DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e where plaintiffs did not “allege[] any facts concerning malice by any individual corporate officer”). Because Plaintiffs have not made any allegations identifying any officer, director or managing agent, nor alleged any facts that the corporate defendants ratified or authorized any act rising to the level of malice, oppression or fraud, Plaintiffs’ demand for punitive damages must be dismissed. V. CONCLUSION In conclusion, Defendants’ Motion to Dismiss should be granted because (1) as to the Second Cause of Action for strict liability based upon an alleged manufacturing defect, the claim cannot survive because the Complaint neither identifies how Plaintiffs’ CK Patch deviated from its intended design or differed from other seemingly identical units of the same model, nor alleges how any such deviation caused Plaintiff injury, (2) the Fourth Cause of Action for breach of express warranty fails for lack of privity, and because Plaintiffs fail to allege the specific content of any purported warranty upon which they relied, (3) the Fifth and Sixth Causes of Action based on alleged misrepresentations fail because the Complaint’s generalized allegations of fraud do not satisfy the pleading requirements of either Fed. R. Civ. Proc. 8(a) or 9(b), and (4) the demand for punitive damages fails because Plaintiffs make conclusory allegations that do not meet the requirements set out in section 3294(a) and (b). DATED: August 12, 2016 REED SMITH LLP By: /s/ Michelle L. Cheng Michael K. Brown Marilyn A. Moberg Michelle L. Cheng Attorneys for Defendants US_ACTIVE-127698899 Case 5:16-cv-01424-JGB-KK Document 15-1 Filed 08/12/16 Page 25 of 25 Page ID #:93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 1 - [PROPOSED] ORDER GRANTING DEFENDANTS DAVOL INC., BARD DEVICES, INC. AND C.R. BARD, INC.’S MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DONNA JAGER and JOHN JAGER, Plaintiffs, vs. DAVOL INC.; BARD DEVICES, INC.; C.R. BARD; and DOES 1-10, inclusive, Defendants. Case No. 5:16-CV-01424-JGB-KK [PROPOSED] ORDER GRANTING DEFENDANTS DAVOL INC., BARD DEVICES, INC. AND C.R. BARD, INC.’S MOTION TO DISMISS Compl. Filed: July 1, 2016 Hearing Date: September 19, 2016 Time: 9:00 a.m. Courtroom: 1 Honorable Jesus G. Bernal [Concurrently Filed With Notice of Motion and Motion and Memorandum of Points and Authorities] Case 5:16-cv-01424-JGB-KK Document 15-2 Filed 08/12/16 Page 1 of 2 Page ID #:94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 - [PROPOSED] ORDER GRANTING DEFENDANTS DAVOL INC., BARD DEVICES, INC. AND C.R. BARD, INC.’S MOTION TO DISMISS R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Defendants Davol Inc., Bard Devices, Inc. and C. R. Bard, Inc.’s (collectively “Bard”) Motion to Dismiss Plaintiffs Donna and John Jager’s Complaint came on for hearing on September 19, 2016, before this Court. After full consideration of all papers, pleadings, and matters subject to judicial notice, as well as counsel’s oral argument, and good cause appearing therefore, IT IS ORDERED THAT: Bard’s Motion to Dismiss Plaintiffs’ Complaint pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6) for failure to state a claim is hereby GRANTED. The Court finds that the Complaint fails to state a claim upon which relief can be granted. Because the deficiencies of Plaintiffs’ Complaint cannot be cured by amendment, the Complaint is dismissed with prejudice in its entirety as to Bard without leave to amend. IT IS SO ORDERED. DATED: _____________________ Honorable S. Jesus G. Bernal United States District Court Judge Case 5:16-cv-01424-JGB-KK Document 15-2 Filed 08/12/16 Page 2 of 2 Page ID #:95