Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dilley v. C.R. Bard, Inc.

United States District Court, C.D. California

May 21, 2014

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

ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT WITHOUT LEAVE TO AMEND AND ORDER TO SHOW CAUSE RE. FAILURE TO STATE A CLAIM [22]

OTIS D. WRIGHT, II, District Judge.

I. INTRODUCTION

Plaintiff Ken Dilley suffered from bilateral hernias and underwent a repair procedure in which Defendant Dr. Leslie Edrich implanted PerFix mesh plugs. But after Dilley began experiencing debilitating pain, another surgeon removed the plugs, finding that they had hardened, shrunk, and scarified.

Defendants C.R. Bard, Inc. and Davol Inc. bring the second Motion to Dismiss in this action. The Court previously granted Defendants' unopposed Motion, finding that Dilley failed to adequately plead a manufacturing or design defect sufficient to sustain his products-liability claims. But Dilley's Second Amended Complaint suffers from the same pleading inadequacies, which are fatal to his claim. The Court therefore GRANTS C.R. Bard and Davol's Motion to Dismiss the Second Amended Complain WITHOUT LEAVE TO AMEND.[1]

II. FACTUAL BACKGROUND

In this Second Amended Complaint ("SAC"), Dilley includes essentially the same factual allegations as he did in his First Amended Complaint. The Court therefore incorporates the factual background from its April 3, 2014 Order Granting Motion to Dismiss into this Order.

Dilley augmented his factual allegations with respect to the state of the PerFix plugs and patches after they were explanted. The doctor who removed the products described the mesh patches as "bilaterally, shrunken, with pulling off the conjoint tendon on the right." (SAC ¶ 13.) The left and right ilionguinal nerves had adhered to the underside of the mesh patches, and the patches had "folded into a linear mass parallel to the inguinal ligament." ( Id. ) On Dilley's right side, the patch had not adhered well to the external oblique fascia, allowing the surgeon to fairly easily tease it off. ( Id. ¶ 14.) But on the left side, the patch adhered better to the fascia. ( Id. ¶ 15.)

After the plugs and patches were removed, they were transferred to private storage facility. ( Id. ¶ 17.) The plugs had hardened, shrunken, scarified, oxidized, and folded over. ( Id. ) In their hardened state, the plugs had continually jabbed into Dilley's bladder, thus causing him pain. ( Id. ) One doctor described them as "like hard wood." ( Id. ¶ 18.)

On April 3, 2014, the Court granted Defendants' Motion to Dismiss Dilley's First Amended Complaint. (ECF No. 17.) The Court found that Dilley had failed to adequately plead a defect sufficient to sustain either his strict-products-liability claim based on a manufacturing defect or his negligent design-defect claim. The Court also found that Plaintiff's strict-liability design-defect claim failed as a matter of law. The Court thus granted the Motion in its entirety and granted Dilley "partial leave to amend... with respect to all claims except strict products liability based on a design defect." (ECF No. 17, at 1, 9.)

Dilley subsequently filed his Second Amended Complaint. On May 5, 2014, Defendants moved to dismiss that Complaint under Rule 12(b)(6). (ECF No. 22.) Dilley filed an untimely opposition brief.[2] That Motion is now before the Court for decision.

III. LEGAL STANDARD

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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.