United States District Court, N.D. California
ORDER GRANTING IN PART CORDIS CORPORATION’S
MOTION TO DISMISS RE: DKT. NO. 7, 19
ILLSTON United States District Judge
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).
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.
following allegations are taken from Plaintiffs’ FAC.
Notice of Removal, Ex. A, FAC (Docket No. 1-1) at 132-169.
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.
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.
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.
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.
claim that both the TrapEase and OptEase Filters have similar
design flaws which render them defective and unreasonably
dangerous. Id. ¶ 44. 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.
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.
removed the case to this Court on June 6, 2016 and
subsequently filed their motion to dismiss. 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).
Rule 12(b)(6) Motion to Dismiss
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).
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”).
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).
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).
Rule 9(b) Heightened Pleading Standard for Allegations of
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.
Rule 12(f) Motion to Strike.
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.
Plaintiffs Fail to Differentiate their Pleading Against
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.
Strict Products Liability - Design Defect ...