Robinson v. C.R. Bard, Inc.

          ORDER GRANTING MOTION TO DISMISS RE: ECF NO. 13

          JON S. TIGAR United States District Judge.

         This is 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.

         I. BACKGROUND

         Robinson 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.

         Although 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.^[1] 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.

         On 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.

         II. JURISDICTION

         The Court has jurisdiction pursuant to 28 U.S.C. § 1332.

         III. LEGAL STANDARD

         A 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).

         IV. DISCUSSION

         A. Statute of Limitations

         Under 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).

         Here, 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 ...