Dunson v. Cordis Corp.

          ORDER GRANTING IN PART CORDIS CORPORATION’S MOTION TO DISMISS - AMENDED Re: Dkt. No. 7, 19

          SUSAN ILLSTON UNITED STATES DISTRICT JUDGE

         Defendant Cordis Corporation (“Cordis”) moves to dismiss the following causes of action in plaintiffs’ first amended complaint (“FAC”): strict products liability - design defect (Count I), strict products liability - inadequate warning (Count II), strict products liability - manufacturing defect (Count III), negligent misrepresentation (Count V), fraud - misrepresentation (Count VI), fraudulent concealment (Count VII), express warranty (Count VIII), and breach of implied warranty of merchantability (Count IX). Cordis additionally moves to dismiss the FAC’s prayer for punitive damages, as well as Counts I-IX that apply to plaintiffs Carol Flanagan and Harlowe Currie (the loss of consortium plaintiffs).

         Cordis’ motion, which seeks dismissal for failure to state a claim, is scheduled for hearing on July 22, 2016. Pursuant to Civil Local Rule 7-1(b), the Court determines the matter is appropriate for resolution without oral argument and VACATES the hearing. For the reasons set forth below, the motion is GRANTED in part and DENIED in part.^[1]

         BACKGROUND

         The following allegations are taken from Plaintiffs’ FAC. Notice of Removal, Ex. A, FAC (Docket No. 1-1) at 132-169.

         The inferior vena cava (“IVC”) is a vein that returns blood to the heart from the lower portions of the body. FAC ¶ 26. An IVC filter is a medical device residing in the IVC that catches blood clots that travel from the lower body to the heart and lungs. Id. ¶ 25. IVC filters have been on market since the 1960s. Id. ¶ 24. In 2003, the Food and Drug Administration cleared the first IVC filters which could be retrieved (as opposed to permanently placed inside the body); it appears this feature is useful for individuals who have the filter placed for prophylactic prevention of pulmonary embolism without a prior history of pulmonary embolism. Id. ¶ 28-29.

         At issue in the present case are the OptEase filter (“OptEase”) and the TrapEase filter (“TrapEase”). According to plaintiffs, Cordis “designed, set specifications for, manufactured, prepared, compounded, assembled, processed, marketed, distributed, and sold” both the OptEase and TrapEase filters. Id. ¶ 10. Defendant Confluent “manufactured, prepared, processed, and helped design” both filters. Id. ¶ 11.

         Plaintiffs Jerry Dunson, Joseph Gieber, Cheryl Grech, Robert Flanagan, Mary Eldeb, and Dayna Currie each underwent placement of the TrapEase filters, and were subsequently injured by them. Id. ¶ 9. Injuries included perforation and thrombosis of the inferior vena cava, clot development, and fracturing, tilting, and migrating of the device. Id. ¶ 1-4, 6-7. Plaintiffs Carol Flanagan and Harlow Currie each allege loss of consortium as a result of their respective spouses’ injuries from the implanted filters. Id. ¶ 5, 8.

         Plaintiffs allege that Cordis designed, manufactured, and labeled the OptEase filters in such a way that when exposed to expected conditions within the patient’s body, the devices would fracture, migrate, tilt, or perforate internal organs and vasculature, and lead to the formation of thromboembolism and pulmonary embolism. Id. ¶¶ 44, 64, 87. Plaintiffs further allege that these malfunctions often caused serious patient injuries, including death, and that the malfunctions occurred at a substantially higher rate in Cordis devices than in other available devices. Id. ¶¶ 52, 53, 87. Plaintiffs further allege that Cordis knew of these undisclosed risks, but intentionally concealed them from plaintiffs’ health care providers. Id. ¶¶ 52, 87, 127, 152.

         Plaintiffs claim that both the TrapEase and OptEase Filters have similar design flaws which render them defective and unreasonably dangerous. Id. ¶ 44.^[2] Plaintiffs allege that flaws include an insufficient anchoring system, configuration which produces prothombosis, and failure to electropolish the filters and maintain an appropriate quality system. Id. ¶ 45-48.

         On May 24, 2016, plaintiffs filed their FAC against Cordis and Confluent in Alameda County Superior Court, alleging causes of action for (1) strict products liability - design defect; (2) strict products liability - inadequate warning; (3) strict products liability - manufacturing defect; (4) negligence; (5) negligent misrepresentation; (6) fraud - misrepresentation; (7) fraudulent concealment; (8) express warranty; (9) breach of implied warranty of merchantability; and (10) loss of consortium. See FAC.

         Defendants removed the case to this Court on June 6, 2016 and subsequently filed their motion to dismiss.^[3] By the present motion, made pursuant to Federal Rules of Civil Procedure 12(b)(6), 9(b), and 12(f), Cordis moves to dismiss or strike Counts I-III, and V-IX, the complaint’s prayer for punitive damages as to all plaintiffs, and Counts I-IX for the loss of consortium plaintiffs. Def’s Refiled Mot. to Dismiss (Docket No. 19).

         LEGAL STANDARD

         I. Rule 12(b)(6) Motion to Dismiss

         Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must assume that the plaintiff’s allegations are true and must draw all reasonable inferences in the plaintiff’s favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987).

         Although factual allegations are generally accepted as true for the purposes of the motion, the Court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). The court, for example, need not “accept as true allegations that contradict matters properly subject to judicial notice or by exhibit.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) opinion amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001); see also Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (“[W]e are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint.”); Van Hook v. Curry, No. C 06-3148 PJH (PR), 2009 WL 773361 at *3 (N.D. Cal. Mar. 23, 2009) (“When an attached exhibit contradicts the allegations in the pleadings, the contents of the exhibits trump the pleadings”).

         As a general rule, the Court may not consider materials beyond the pleadings when ruling on a Rule 12(b)(6) motion. Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001). However, pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of “matters of public record, ” such as prior court proceedings. Id. at 688-89. The Court may also consider “documents attached to the complaint [and] documents incorporated by reference in the complaint . . . without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

         If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).

         II. Rule 9(b) Heightened Pleading Standard for Allegations of Fraud

         For allegations of fraud or mistake, a complaint must meet the heightened pleading standard of Rule 9(b), which requires a plaintiff to “state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). However, “[m]alice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Id. Fraud or mistake can be averred specifically, or by alleging facts that necessarily constitute fraud, unilateral mistake, or mutual mistake (even if those terms are not explicitly stated). Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir. 2003). Rule 9(b) is satisfied if the allegations “identif[y] the circumstances constituting fraud (or mistake) so that the defendant can prepare an adequate answer from the allegations.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989). “Rule 9(b)’s particularity requirement applies to state-law causes of action.” Vess, 317 F.3d at 1103.

         III. Rule 12(f) Motion to Strike.

         Federal Rule of Civil Procedure 12(f) provides that a court may “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” However, motions to strike are generally disfavored. Rosales v. Citibank, 133 F.Supp.2d 1177, 1180 (N.D. Cal. 2001). When a claim is stricken, “leave to amend should be freely given, ” provided no prejudice results against the opposing party. Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979).

         DISCUSSION

         I. Plaintiffs Fail to Differentiate their Pleading Against Multiple Defendants

         As an initial matter, plaintiffs’ FAC is facially insufficient because plaintiffs consistently fail to distinguish among the defendants. Plaintiffs lump defendants Cordis and Confluent in an undifferentiated group for each cause of action. See FAC. Courts consistently conclude that “[u]ndifferentiated pleading against multiple defendants is improper.” See Corazon v. Aurora Loan Servs., LLC, 2011 WL 1740099, at *4 (N.D. Cal. May 4, 2011); see also Fagbohunge v. Caltrans, 2014 WL 644008, at *3 n.4 (N.D. Cal. Feb. 19, 2014) (reasoning that a “general allegation regarding ‘defendants’ is [] insufficient on its face because it does not identify which specific defendants . . . Plaintiff’s complaint must differentiate between each of the defendants and clearly state the factual basis for each cause of action as to each specific defendant.”). Plaintiffs must correct this global error in their amended complaint going forward.

         II. Strict Products Liability - Design Defect ...