United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: ECF NO.
TIGAR United States District Judge.
a personal injury action brought by Plaintiff Bilal Robinson
against C.R. Bard, Inc. ("Bard"), alleging claims
for unfair and deceptive trade practices under Cal. Bus. &
Prof. Code section 17200, negligence, design defect,
intentional infliction of emotional distress, breach of
implied warranty, failure to warn, and fraud. Before the
Court is Bard's motion to dismiss the complaint. The
motion will be granted with leave to amend.
alleges that he was implanted with a defective medical
product manufactured by Bard during a hernia repair surgery.
ECF No. 1-1 ("Complaint") ¶¶ 14-16.
Robinson claims that as a direct and proximate result of the
allegedly defective medical product (hereinafter the
"Bard mesh"), he sustained injuries and medical
costs, including the cost of removing the Bard mesh via an
additional surgical procedure. Complaint ¶¶ 13, 16.
Robinson also claims that as a result of the allegedly
defective Bard mesh, he is now "permanently
disabled" and "at risk for loss of life or
continued lifelong health problems." Complaint ¶ 1.
the Complaint does not detail the dates of Robinson's
various doctor's appointment and surgeries, documents
attached to the Complaint provide additional details that may
be considered by the Court as part of the
Complaint. See Fed.R.Civ.P. 10(c) ("[A]
copy of a written instrument that is an exhibit to a pleading
is a part of the pleading for all purposes."). According
to these additional documents, it appears that Robinson was
implanted with the Bard mesh on February 27, 2009 as part of
a surgical procedure to repair a left inguinal hernia. ECF
No. 14-3 at 3; ECF No. 14-2, at 2. In the following months,
Plaintiff developed left groin pain, for which he visited
various physicians and surgeons. ECF No. 14-2, at 2-3. On
October 7, 2010, Robinson's physician noted that
Plaintiff's pain might be "a reaction to the
mesh." ECF No. 14-3 at 8. On October 17, 2012,
Robinson's physician noted that Robinson's "pain
may be secondary to the Marlex mesh and associated shrinkage
and nerve entrapment. . . . After unsuccessful non-operative
management, he would like to attempt a surgical approach to
his intractable pain." Id. at 10. Plaintiff
underwent surgery on November 16, 2012 to have the Bard mesh
removed. Id. at 10, 16. On December 14, 2012,
Robinson's physician noted that "the patient
complains of less pain in the genital region since he had a
surgery for mesh removal . . . ." Id. at 9. On
both February 15, 2013 and June 18, 2013, Robinson was
diagnosed with a "[l]eft inguinal hernia with pain due
to metal mesh." ECF No. 14-4 at 2; ECF No. 14-5 at 2.
January 6, 2016, Robinson filed his Complaint in the Superior
Court for Alameda County. ECF No. 1-1 at 8. On February 25,
2016, Bard removed the case to federal court on the basis of
diversity jurisdiction. ECF No. 1. On March 3, 2016, Bard
filed a motion to dismiss the Complaint, which motion the
Court now considers.
Court has jurisdiction pursuant to 28 U.S.C. § 1332.
complaint must contain "a short and plain statement of
the claim showing that the pleader is entitled to
relief" in order to "give the defendant fair notice
of what the . . . claim is and the ground upon which it
rests." Fed.R.Civ.P. 8(a)(2); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). "To survive a
motion to dismiss, a 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) (internal quotation
marks omitted). "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." Id.
"Dismissal under Rule 12(b)(6) is appropriate only where
the complaint lacks a cognizable legal theory or sufficient
facts to support a cognizable legal theory."
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d
1097, 1104 (9th Cir. 2008). The Court must "accept all
factual allegations in the complaint as true and construe the
pleadings in the light most favorable to the nonmoving
party." Knievel v. ESPN, 393 F.3d 1068, 1072
(9th Cir. 2005).
Statute of Limitations
California law, an action for injury to an individual
"caused by the wrongful act or neglect of another"
must be brought within two years of the date when the
Plaintiff's cause of action first begins to accrue. Cal.
Code Civ. Proc. § 335.1. Bard argues that each of
Robinson's claims (except for his claim for unfair and
deceptive trade practices under Cal. Bus. & Prof. Code
section 17200) should be dismissed because the statute of
limitations began to accrue over two years prior to
Plaintiff's initiation of this action. ECF No. 13 at 14.
In California, "[t]he general rule for defining the
accrual of a cause of action sets the date as the time when
the cause of action is complete with all of its
elements." Norgart v. Upjohn Co., 21 Cal.4th
383, 389 (1999). "An exception is the discovery rule,
which postpones accrual of a cause of action until the
plaintiff discovers, or has reason to discover, the cause of
action, until, that is, he at least suspects, or has reason
to suspect, a factual basis for its elements."
Id. "What matters is that the plaintiff had
sufficient facts to put her on inquiry notice."
Henderson v. Pfizer, Inc., 285 F.App'x 370, 373
(9th Cir. 2008).
the documents attached to the Complaint establish that
Robinson possessed knowledge of the facts necessary to put
him on inquiry notice no later than February 15, 2013. On
October 17, 2012, Robinson's physician noted that
Robinson's "pain may be secondary to the Marlex mesh
and associated shrinkage and nerve entrapment. . . . After
unsuccessful non-operative management, [Robinson] would like
to attempt a surgical approach to his intractable pain."
Id. at 10. As a result, on November 16, 2012,
Robinson underwent surgery to have the Bard mesh removed.
Id. at 10, 16. After the surgery, on both February
15, 2013 and June 18, 2013, Robinson was diagnosed with a
"[l]eft inguinal hernia with pain due to metal
mesh." ECF No. 14-4 at 2; ECF No. 14-5 at 2
(emphasis added). As a result, Robinson was in
"possession of facts that establish both the nature of
the harm and its probable cause" as of February 15, 2013
at the latest. Henderson, 285 F.App'x at 373
(internal quotation marks ...