JAM-EFB ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
This matter is before the Court on Defendants' Stryker Corporation ("Stryker") and Howmedica Osteonics Corp ("Howmedica") (collectively "Defendants") Motion to Dismiss (Doc. #16) Plaintiff Travis Currier's ("Plaintiff") First Amended Complaint ("FAC") (Doc. #8). This matter was removed to this court from the Superior Court of the County of Sacramento on grounds of diversity jurisdiction (Doc. #1). Defendants move to dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Plaintiff opposes the motion. For the reasons set forth below, the Motion to Dismiss is GRANTED in part and DENIED in part.*fn1
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
This action arises from a medical device that was surgically 3 implanted in Plaintiff's leg. The FAC alleges that a portion of 4 Plaintiff's left femur was removed due to sarcoma and replaced with 5 femoral endoprothesis (a femoral stem and jointed pieces), in 6 December 1994. Am. Compl., ¶ 11. Plaintiff alleges that the 7 femoral endoprothesis was Defendants' product, and was dangerous 8 and defective when it was inserted into Plaintiff's femur. Am. 9 Compl., ¶ 12. Plaintiff was 15 at the time of the surgery. Am. Compl., ¶ 11. The FAC alleges that despite Defendants' representations to Plaintiff, Plaintiff's physician and Plaintiff's parents that the product was of superior quality and would last for Plaintiff's lifetime, the product failed and broke in February 2010, causing injury and necessitating surgery to replace portions of the product that broke. Am. Compl., ¶ 13. The FAC contains three claims against Defendants for Strict Liability, Negligence and Breach of Warranty. Plaintiff seeks general damages, medical expenses and lost wages. Defendants move to dismiss the FAC in its entirety. Defendants contend that the FAC does not meet federal pleading standards and pleads claims that are unavailable under California law.
A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. 2 Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by 3 Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 4 322 (1972). Assertions that are mere "legal conclusions," however, 5 are not entitled to the assumption of truth. Ashcroft v. Iqbal, 6 129 S. Ct. 1937, 1950 (2009), (citing Bell Atlantic Corp. v. 7 Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to 8 dismiss, a plaintiff needs to plead "enough facts to state a claim 9 to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
1. Strict Liability, First Claim for Relief
The FAC alleges that Defendants designed, researched, formulated, tested, inspected, manufactured, produced, created, assembled, prepared, packaged, labeled, supplied, distributed, marketed, and/or sold the femoral stem product in a defective and dangerous condition. Am. Compl., ¶ 17. The FAC alleges that the product was defective and dangerous because it did not perform as anticipated and broke into pieces. Id. Plaintiff alleges that he sustained both physical and emotional injury, incurred medical 2 expenses, and was unable to work in his usual occupation. Am. 3 Compl., ¶¶ 19-21. Defendants argue that these allegations fail to 4 state a claim because they do not differentiate between Stryker, 5 Howmedica and Stryker Sales Corporation (not a party to this 6 motion) and they fail to state how the product is defective. 7
Further, to the extent that Plaintiff is attempting to assert a 8 design defect claim, Defendants contend that such a claim is 9 unavailable against manufacturers of medical implant devices.
California recognizes three theories of product liability: design defect, manufacturing defect, and failure to warn. Yalter v. Endocare, 2004 WL 5237598 at *3 (C.D. Cal. Nov. 8, 2004). The first claim in the FAC is captioned "strict liability" and does not indicate if Plaintiff is attempting to bring a products liability claim for design defect, manufacturing defect, or both.
Accordingly, the Court will discuss both the design defect and manufacturing defect theories. The FAC does not contain any allegations of failure to warn, accordingly it does not appear that the "strict liability" claim is based on a failure to warn theory.
Under the manufacturing defect theory, generally a manufacturing or production defect is readily identifiable because a defective product is one that differs from the manufacturer's intended result or from other ostensibly identical units of the same product line. Lucas v. City of Visalia, 726 F.Supp.2d 1149, 1154 (E.D. Cal. 2010) (internal citations omitted). The manufacturing defect theory posits that a ...