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Pamela Coleman v. Boston Scientific Corporation

August 29, 2011

PAMELA COLEMAN,
PLAINTIFF,
v.
BOSTON SCIENTIFIC CORPORATION, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MOTION TO DISMISS FIRST MEMORANDUM DECISION REGARDING AMENDED COMPLAINT (Doc.34)

I. INTRODUCTION.

Pamela Coleman ("Plaintiff") proceeds with an action for damages against Boston Scientific Corporation ("Defendant") and various Doe Defendants. Plaintiff filed a First Amended Complaint ("FAC") on June 17, 2011. (Doc. 31).

Defendant filed a motion to dismiss the FAC on July 7, 2011. (Doc. 34). Plaintiff filed opposition to the motion to dismiss on August 1, 2011. (Doc. 39). Defendant filed a reply on August 8, 2011. (Doc. 44).

II. FACTUAL BACKGROUND.

On December 5, 2006, a physician implanted a surgical mesh device manufactured by Defendant into Plaintiff in connection with treatment of Plaintiff's stress urinary incontinence. The surgical mesh device is described as an Obtryx Transobturator Mid-Urethral Sling System ("Mesh Device") and is designed to restore normal vaginal structure secondary to pelvic organ prolapse. Plaintiff began to experience "recurrent pelvic pain, erosions, and recurrent infection of the tissue around the mesh" subsequent to implantation of the Mesh Device. From July 2007 through January 2009, Plaintiff underwent surgery, vaginal reconstruction, and mesh removal "to correct the injuries caused by the mesh." (FAC at 8).

The FAC alleges that Defendant marketed the Mesh Device in a deceptive manner to the medical community and patients at medical conferences, hospitals, private offices, and through documents, brochures, and websites. Contrary to Defendant's representations, the Mesh Device has high failure, injury, and complication rates, fails to perform as intended, and requires frequent re-operations. Defendant withheld and underreported information about the safety of its Mesh Device. Defendants also failed to adequately research and test its Mesh Product.

III. LEGAL STANDARD.

Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). To sufficiently state a claim to relief and survive a 12(b) (6) motion, the pleading "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).

The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint to survive a motion to dismiss, the nonconclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal quotation marks omitted). Apart from factual insufficiency, a complaint is also subject to dismissal under Rule 12(b)(6) where it lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or where the allegations on their face "show that relief is barred" for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

In deciding whether to grant a motion to dismiss, the court must accept as true all "well-pleaded factual allegations" in the pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). "When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond." United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003). "A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment." Id. at 908.

IV. DISCUSSION.

A. Statute of Limitations

California law establishes a two-year statute of limitations for personal injury actions. Cal. Code Civ. Proc. 335.1; e.g., Mito v. Temple Recycling Center Corp., 187 Cal. App. 4th 276, 278-79 (Cal. Ct. App. 2011). As a general rule, a cause of action accrues "when, under the substantive law, the wrongful act is done, or the wrongful result occurs." E.g., Unruh-Haxton v. Regents of University of California, 162 Cal. App. 4th 343, 359 (Cal. Ct. App. 2008). "An important exception to the general rule of accrual is the 'discovery rule,' which postpones accrual of a cause of action until the plaintiff discovers, or has ...


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