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Dilley v. C.R. Bard, Inc.

United States District Court, C.D. California

April 3, 2014

KEN DILLEY, Plaintiff,
C.R. BARD, INC.; DAVOL INC.; LESLIE EDRICH; DOES 1-100, inclusive, Defendants.


OTIS D. WRIGHT, II, District Judge.


Plaintiff Ken Dilley suffered from bilateral hernias. He went in for surgery, and his physician-Defendant Dr. Leslie Edrich-used PerFix mesh plugs and patches manufactured by Defendants C.R. Bard, Inc. and Davol Inc. to repair the hernias. After suffering debilitating pain, Dilley went to another hospital about three years later and had to have the PerFix products removed. He then filed suit against Defendants alleging several products-liability theories under California law. C.R. Bard and Davol now move to dismiss the amended Complaint. Since Dilley has failed to identify any defects in the manufacturing, design, or warnings associated with the PerFix products, the Court finds that he has failed to state any actionable claim. The Court therefore GRANTS C.R. Bard and Davol's Motion to Dismiss with partial leave to amend.[1]


In January 2008, Dilley was admitted to Long Beach Medical Center for hernia surgery. (FAC ¶ 7.) He was then scheduled for bilateral inguinal hernia repairs using Defendants' PerFix mesh plugs and patches. ( Id. )

Defendant Dr. Leslie Edrich performed the surgery. ( Id. ¶ 8.) Dr. Edrich started on Dilley's left side and discovered a moderate-to-large direct hernia medial to the inferior epigrastic vessels. ( Id. ) Dr. Edrich used a large PerFix mesh plug to fully invaginate the direct hernia sac back into the preperitoneal space. ( Id. ) The edges of the transversalis fascia were then sutured over the edges of the mesh plug. ( Id. ) Dr. Edrich then proceeded to perform the same procedure on Dilley's right side. ( Id. ¶ 9.) In total, Dr. Edrich used two PerFix mesh plugs, size large 1.6 × 1.90, which are manufactured by Davol Inc. ( Id. ¶ 10.)

After his surgery, Dilley began to suffer from debilitating pain in his groin and inner thigh. ( Id. ¶ 11.) As a result, Dilley went to Cedars-Sinai Medical Center on March 9, 2011. ( Id. ¶ 12.) He was diagnosed with bilateral chronic postoperative groin pain, chronic pain syndrome, and recurrent bilateral inguinal hernias. ( Id. ) Dilley then had right iliohypogastric, right ilioinguinal, and left ilioinguinal neurectomies; bilateral removal of mesh plugs, patches, and sutures; and open bilateral recurrent inguinal hernia repairs with mesh. ( Id. )

The Cedars-Sinai medical records reflect that the PerFix mesh plugs and patches had hardened, shrunk, scarified, and began pulling off the conjoint tendon on Dilley's right side. ( Id. ¶ 13.) Dilley "is informed and believes" that Defendants were aware that the PerFix mesh plugs would commonly harden, shrink, scarify, or migrate and therefore cause a patient severe pain. ( Id. )

On March 8, 2013, Dilley filed suit against C.R. Bard and Davol in Los Angeles County Superior Court. Defendants subsequently removed the action to this Court. Dilley v. C.R. Bard, Inc., No. 2:14-cv-00258-ODW(ASx) (C.D. Cal. removal filed Jan. 10, 2014). But the Court remanded the action due to Defendants' insufficient citizenship allegations.

Dilley filed an amended Complaint in state court, adding Dr. Edrich as a defendant.[2] Dilley alleges claims for strict products liability, design defect, and failure to warn. On March 11, 2014, C.R. Bard and Davol ("Defendants") removed this action for the second time. They subsequently moved to dismiss under Rule 12(b)(6) and strike under Rule 12(f).[3] Dilley failed to oppose the Motion.[4] That Motion is now before the Court for decision.


A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable legal theory or insufficient facts pleaded to support an otherwise cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To survive a dismissal motion, a complaint need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)-a short and plain statement of the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual "allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). That is, 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, 556 U.S. 662, 678 (2009).

The determination whether a complaint satisfies the plausibility standard is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. A court is generally limited to the pleadings and must construe all "factual allegations set forth in the complaint... as true and... in the light most favorable" to the plaintiff. Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). But a court need not blindly accept conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

As a general rule, a court should free grant leave to amend a complaint that has been dismissed. Fed.R.Civ.P. 15(a). But a court may deny leave to amend when "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 ...

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