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  • WAYNE RUDEN VS. C.R. BARD, INC., A NEW JERSEY CORPORATION ET AL PRODUCTS LIABILITY document preview
  • WAYNE RUDEN VS. C.R. BARD, INC., A NEW JERSEY CORPORATION ET AL PRODUCTS LIABILITY document preview
  • WAYNE RUDEN VS. C.R. BARD, INC., A NEW JERSEY CORPORATION ET AL PRODUCTS LIABILITY document preview
  • WAYNE RUDEN VS. C.R. BARD, INC., A NEW JERSEY CORPORATION ET AL PRODUCTS LIABILITY document preview
  • WAYNE RUDEN VS. C.R. BARD, INC., A NEW JERSEY CORPORATION ET AL PRODUCTS LIABILITY document preview
  • WAYNE RUDEN VS. C.R. BARD, INC., A NEW JERSEY CORPORATION ET AL PRODUCTS LIABILITY document preview
  • WAYNE RUDEN VS. C.R. BARD, INC., A NEW JERSEY CORPORATION ET AL PRODUCTS LIABILITY document preview
  • WAYNE RUDEN VS. C.R. BARD, INC., A NEW JERSEY CORPORATION ET AL PRODUCTS LIABILITY document preview
						
                                

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BR BW ON David R. Ongaro (State Bar No. 154698) dongaro@ongaropc.com Nevin C. Brownfield (State Bar No. 225175) nbrownfield@ongarope.com Glen Turner (State Bar No. 212417) gturner@ongarope.com ONGARO PC 50 California Street, Suite 3325 San Francisco, CA 94111 Telephone: (415) 433-3900 Facsimile: (415) 433-3950 Attommeys for Plaintiff WAYNE RUDEN ELECTRONICALLY FILED Superior Court of California, County of San Francisco 06/22/2018 Clerk of the Court BY: VANESSA WU Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO WAYNE RUDEN, Plaintiff, Vs. C.R. BARD, INC., a New Jersey corporation, BARD PERIPHERAL VASCULAR, INC., (a subsidiary and/or division of defendant C.R. BARD, INC.) an Arizona corporation, CALIFORNIA PACIFIC MEDICAL CENTER, and DOES 1-100 INCLUSIVE, Defendants. Case No. CGC-15-548341 DECLARATION OF GLEN TURNER IN SUPPORT OF PLAINTIFF WAYNE RUDEN’S REPLY TO BARD’S OPPOSITION TO PLAITNIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT Reservation No.: 06010629-13 Date: June 29, 2018 Time: 9:30 a.m. Dept.: 302 Judge: Hon. Harold E. Kahn Complaint Filed: October 7, 2015 TAC Filed: February 2, 2017 DECL. OF GLEN TURNER ISO PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINTBR BW ON I, Glen Turner, declare as follows: 1. I am an attorney licensed to practice law in California. I am an attorney with the law firm of Ongaro PC, attorneys of record for plaintiff Wayne Ruden in the above captioned matter. | am one of the attorneys assigned to this matter. The facts set forth herein are of my own personal knowledge and if called upon to testify, I could and would do so competently. I submit this declaration in support of Mr. Ruden’s Reply to Bard’s Opposition to His Motion For Leave to Amend Complaint. 2. On November 19, 2015, after this matter had been removed to federal court, Bard filed a 12(b)(6) motion to dismiss. A true copy of Bard’s motion is attached hereto as Exhibit A. 3. In response to issues raised in Bard’s 12(b)(6) motion, plaintiff filed his Second Amended Complaint on December 3, 2015. A true copy of plaintiff's Second Amended Complaint (Federal Court) is attached hereto as Exhibit B. 4, On September 15, 2016, after the matter had been remanded to this Court, Bard filed a Motion for Judgment on the Pleadings in this Court, which was granted in part and denied in part at an October 21, 2016 hearing. 5. In response to the Court’s Order on that motion, plaintiff filed his Second Amended Complaint in this Court on November 1, 2016.! 6. On November 30, 2016, CPMC filed a demurrer to plaintiff's Second Amended. Complaint in this Court. 7. On January 13, 2017, this Court entered an order granting in part and denying in ‘At that time plaintiff did not realize that this Court was unaware of the amended complaint previously filed in federal court. Plaintiff, and apparently both defendants believed the Second Amended Complaint (state court), filed in this Court on November 1, 2016, was the Third Amended Complaint. Eventually the parties learned of this and reconciled their numbering with the Court’s. To avoid confusion, only the Court’s numbering, which all parties now follow, is used in this Motion. 1 DECL. OF GLEN TURNER ISO PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINTBR BW ON part CPMC’s demurrer. 8. On February 2, 2017, plaintiff filed his Third Amended Complaint in response to the ruling. 9. On February 8, 2017, counsel for CPMC wrote me, requesting that plaintiff file a Fourth Amended Complaint addressing issues CPMC had with the Third Amended Complaint. A true copy of this letter is attached hereto as Exhibit C. 10. After extensive meet and confer efforts with both Bard and CPMC, plaintiff circulated a draft Fourth Amended Complaint to all parties on March 30, 2017 via email from plaintiffs counsel Glen Turner to CPMC’s counsel Hilary Youngblood and Pat Lakner, and to Bard’s counsel Steven J. Boranian and Kevin Hara. A true copy of this email is attached hereto as Exhibit D. 11. Bard approved of a draft Fourth Amended Complaint on April 3, 2017. See Exhibit F, infra. 12. On April 25, 2017, CPMC informed plaintiff via letter that it would not approve the fourth amended complaint, requesting extensive further changes. A true copy of this letter is attached hereto as Exhibit E. 13. On May 5, 2017, plaintiff provided another version of the draft Fourth Amended Complaint, along with a letter detailing the changes made, all of which were sent to CPMC via an email noting that Bard had approved the prior draft on April 3. A true copy of plaintiff's May 5, 2017 letter is attached hereto as Exhibit F. 14. Those negotiations over fizzled out and the matter was ultimately dropped. The Fourth Amended Complaint attached to this Motion is not based on that draft. It is a different document. 15. Neither defendant has served any new discovery requests on plaintiff since the 2 DECL. OF GLEN TURNER ISO PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINTBR BW ON Fourth Amended Complaint was circulated to them via email on May 9, 2018. See Turner Decl. in support of plaintiff's motion papers, 3, Exh. B. 16. CPMC emailed plaintiffs counsel at 11:35 a.m. on May 31, 2018, 22 days after plaintiff's counsel circulated the draft and requested comments, stating that it would not stipulate. The only substantive problem CPMC identified was that the proposed amended complaint “refers to ‘Defendants’ often,’ which improperly adds California Pacific to new and varied claims pled against Bard.” By this time, the Motion had been finalized and was in the process of being filed and served by staff, and I was not in the office and did not receive the email until the Motion was already filed. A true copy of this email is attached hereto as Exhibit G. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on June 22, 2018, in San Francisco, California. fu LE Glen Turner 3 DECL. OF GLEN TURNER ISO PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINTBR BW ON PROOF OF SERVICE I, Yroko M. Drevon, declare: Iam a citizen of the United States and am employed in the County of San Francisco, State of California. I am over the age of 18 years and am not a party to the within action. My business address is 50 California Street, Suite 3325, San Francisco, California 94111. On June 22, 2018, I electronically served the following documents via File & ServeXpress: DECLARATION OF GLEN TURNER IN SUPPORT OF PLAINTIFF WAYNE RUDEN’S REPLY TO BARD’S OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT on the recipients designated on the Transaction Receipt located on the File & Serve Xpress Website. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 22, 2018, at Antioch, California. Yroko M. Drevon 1 DECL. OF GLEN TURNER ISO PLAINTIFF*S MOTION FOR LEAVE TO AMEND COMPLAINTEXHIBIT A2 Case 4:15-cv-05189-JSW Document 18 Steven J. Boranian (SBN 174183) Email: sboranian@reedsmith.com Mark A. Sentenac (SBN 286810) Email: msentenac@reedsmith.com REED SMITH LLP 101 Second Street Suite 1800 San Francisco, CA 94105-3659 Telephone: +1 415 543 8700 Facsimile: +1 415 391 8269 Attorneys for Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. Filed 11/19/15 Page 1 of 23 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION WAYNE RUDEN, Plaintiff, vs. C. R. BARD, INC., a New Jersey corporation, BARD PERIPHERAL VASCULAR, INC. (a subsidiary and/or division of defendant C. R. BARD, INC.) an Arizona corporation, CALIFORNIA PACIFIC MEDICAL CENTER, and DOES 1-100 INCLUSIVE, Defendants. Case No.: 4:15-cv-05189-JSW Case No.: 4:15-cv-05189-ISW Honorable Jeffrey S. White DEFENDANTS C, R. BARD, INC. AND BARD PERIPHERAL VASCULAR, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: January 8, 2016 Time: 9:00 a.m. Location: Courtroom 5; Second Floor Compl. Filed: October 7, 2015 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTND Case 4:15-cv-05189-JSW Document 18 Filed 11/19/15 Page 2 of 23 NOTICE OF MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 8, 2016, at 9:00 a.m., or as soon as the matter can be heard thereafter, in Courtroom 5 of the above-entitled Court, located at 1301 Clay Street, 2nd Floor, Oakland, CA 94612, Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. (collectively, “Bard” or “Defendants”) will and hereby do move this Court for an Order granting a motion to dismiss the Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Causes of Action of Plaintiff Wayne Ruden’s Complaint, as well as Plaintiff's claim for punitive damages, pursuant to Federal Rule of Civil Procedure 12(b)(6), because the allegations in the Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Causes of Action, and punitive damages claim, fail to state any claim upon which relief can be granted. Defendants’ motion to dismiss is made on the ground that the Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Causes of Action, and Plaintiff's claim for punitive damages, fail to state a claim for relief “that is plausible on its face,” as required under Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), as follows: First, Plaintiff's Fourth and Fifth Causes of Action for alleged strict products liability — design defect fail because California does not recognize a claim for strict liability for an alleged design defect in a prescription medical device, like the Bard Recovery® Filter at issue here. Second, Plaintiff's Sixth Cause of Action for alleged strict products liability - manufacturing defect cannot survive because the Complaint does not allege that Plaintiff's Recovery® Filter deviated from its intended design or otherwise differed from other seemingly identical units of the same model, nor does the Complaint allege how any such deviation caused Plaintiff any injury. Third, Plaintiff's Seventh Cause of Action for alleged breach of implied warranty cannot survive because the Complaint does not and cannot allege that Plaintiff was in privity of contract with Defendants, and because California does not recognize a claim for breach of implied warranty of fitness for an implantable medical device. Fourth, Plaintiff's Eighth Cause of Action for alleged negligent misrepresentation fails because Plaintiff's allegations do not satisfy the particularity requirements of Fed. R. Civ. Proc. 9(b). Case No. 4:15-cv-05189-JSW -i- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTCase 4:15-cv-05189-JSW Document 18 Filed 11/19/15 Page 3 of 23 1 Fifth, Plaintiff's Tenth Cause of Action for alleged negligent recall/retrofit fails because a 2|| cause of action for failure to recall is not cognizable under California law. 3 Sixth, Plaintiff's claim for punitive damages (located at pages 24-25 of the Complaint) fails 4]| to allege facts demonstrating the requisite oppression, fraud, or malice. 5 Defendants’ motion is based on this Notice of Motion and Motion, the Memorandum of 6|] Points and Authorities in support thereof, the complete files and records in this action, and such 7|| other argument and evidence as may be presented at or before the hearing of this matter. 8 9 DATED: November 19, 2015 10 REED SMITH LLP ll 12 By: /s/ Steven J. Boranian Steven J. Boranian 13 Mark A. Sentenac Attorneys for Defendants C. R. Bard, Inc. and 14 Bard Peripheral Vascular, Inc. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 4:15-cv-05189-JSW —ii- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTCase 4:15-cv-05189-JSW Document 18 Filed 11/19/15 Page 4 of 23 SUMMARY OF ARGUMENT As Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. explained in their previously filed motion to stay, this case belongs with the dozens of similar cases involving Bard’s models of inferior vena cava filters (“IVC filters”) currently pending in the District of Arizona before the Honorable David G. Campbell as part of the multidistrict litigation In re: Bard IVC Filter Products Liability Litigation (MDL 2641). For that reason, Defendants have separately moved this Court to stay all proceedings in this action, including the resolution of this motion to dismiss, pending a ruling by the U.S. Judicial Panel on Multidistrict Litigation on the transfer of this action to those proceedings. As demonstrated in Defendants’ motion to stay, good cause exists to stay this action pending its transfer to MDL 2641, and Defendants’ motion to stay should be granted so that this action can be handled in an efficient and consistent manner by Judge Campbell. Should the Court reach the merits of this motion to dismiss, it should grant Defendants’ motion for the following reasons. First, Plaintiff's claims for strict liability design defect fail as a matter of law, because California does not recognize such a claim for prescription medical devices. See Artiglio v. Superior Court, 22 Cal. App. 4th 1388 (1994); Hufft v. Horowitz, 4 Cal. App. 4th 8 (1992). Second, Plaintiff's claim for strict liability manufacturing defect is inadequately pled under California and federal pleading standards. See In re Coordinated Latex Glove Litig., 99 Cal. App. 4th 594 (2002). Third, Plaintiff’s claim for breach of implied warranty fails for lack of privity, and because California does not recognize a claim for breach of implied warranty of fitness against a manufacturer of implantable medical devices. See Blanco v. Baxter Healthcare Corp., 158 Cal. App. 4th 1039 (2008); Fender v. Medtronic, Inc., 887 F. Supp. 1326 (E.D. Cal. 1995). Fourth, Plaintiff's claim for negligent misrepresentation fails because it is not pled with particularity under Fed. R. Civ. Proc. 9(b). See Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101 (C.D. Cal. 2003). Fifth, Plaintiff's claim for negligent failure to recall/retrofit cannot proceed because Defendants owed no duty to withdraw its product. See Ramirez v. Plough, Inc., 6 Cal. 4th 539 (1993). Finally, Plaintiffs punitive damages claim fails to adequately plead facts demonstrating oppression, fraud, or malice. See G.D. Searle and Co. v. Superior Court, 49 Cal. App. 3d 22 (1975). Case No. 4:15-cv-05189-JSW —iii- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTCase 4:15-cv-05189-JSW Document18 Filed 11/19/15 Page 5 of 23 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 TABLE OF CONTENTS 3 Page AIT INTRODUCTION o.oo eccccceeccescsseseecesesscecssesessessseeessesesscesesesesseeuasesessesnsucesasesessuseneenesesneasens 1 6) TIL. LEGAL STANDARD 7 IV. ARGUMENT 8 A. Plaintiff's Fourth And Fifth Causes of Action For Alleged Strict Products Liability - Design Defect Fail Because California Does Not Allow Strict 9 Liability Claims For Design Defects In Prescription Medical Devices... 3 B. Plaintiff's Sixth Cause of Action For Strict Products Liability For An Alleged Manufacturing Defect Should Be Dismissed Because Plaintiff Fails To Allege A Deviation From Specifications And Causation............:.-:cccccee 4 C. Plaintiff's Seventh Cause Of Action For Alleged Breach Of Implied Warranty Fails For Lack Of Privity And Is Barred By California Law In Any Event . 1. Plaintiff's implied warranty claim fails for lack of privity 0.0.0... 6 2. California law does not allow a claim for breach of the implied warranty of fitness in connection with an implantable medical device D. Plaintiff's Eighth Cause of Action for Negligent Misrepresentation Should 18 Be Dismissed Because It Is Not Pled With Particularity Under Rule 9(b).......0....0... 8 E. Plaintiff's Tenth Cause Of Action For Alleged Negligent Failure To 19 Recall/Retrofit Fails Because It Is Not Cognizable Under California Law............... 10 20 F. Plaintiff's Punitive Damages Claim Should Be Dismissed 21} Vv. CONCLUSION orice eta eterna a rat vata sana rape pneten rast aotaotaetateaoedeaed 14 22 23 24 25 26 27 28 Case No. 4:15-cv-05189-JSW ~iv- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT2 Case 4:15-cv-05189-JSW Document 18 Filed 11/19/15 Page 6 of 23 TABLE OF AUTHORITIES Page(s)| Cases Adams v. I-Flow Corp., No. CV09-09550 R(SSx), 2010 WL 1339948 (C.D. Cal. Mar. 30, 2010) .sceeecceeeeeseeeene 6,7 All West Electronics, Inc. v. M—B-W, In 64 Cal. App. 4th 717 (1998) .. Alliance Mortgage Co. v. Rothwell, 10 Cal. 4th 1226 (1995) oo. ececcceeceee ee teeese cece cesesneeccecetescaeeneeceuceesecaeeneeseusecseceteeceesecessuceeesaneseeeeeee 13 Artiglio v. Superior Court, 22 Cal. App. 4th 1388 (1994) 0... esesssssssssssssessessssesesssessssesssnssssseasessesssesssesessessesessassaraseeee 4, 12) Ashcroft v. Iqbal, 556 U.S. 662 (2009). Baker v. Bayer Healthcare Pharmaceuticals, Inc., NO. C13-0490 THE, 2013 WL 6698653 (N. D. Cal. Dec. 19, 2013) w..teesceeeseeeeeeeeeneens 5 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)... Blanco v. Baxter Healthcare Corp., 158 Cal. App. 4th 1039 (2008) vaccsessssscssssssscsssssesssssssssseasesseecsavssesssnseneeessasssstievasesessuevessssavasee 6 Brousseau v. Jarrett, 73 Cal. App. 3d 864 (1977) wo. cesescceseeecscsssssseessesesescsnssnesseeseeesssesseraeseesseeesaessesssessssesserssseeeneeesserese 12 Brown vy. Superior Court, 44 Cal. 3d 1049 (1988) Cafasso v. General Dynamics C4 Systems, Inc., 637 F.3d 1047 (9th Cir. 2011)... In re Coordinated Latex Glove Litig. 99 Cal. App. 4th 594 (2002) .. Currier v. Stryker Corp., No. 2:11-CV—1203 JAM-EFB, 2011 WL 4898501 (E.D. Cal. Oct. 13, 2011)... cessed 6,7 Diediker v. Peelle Fin'l Corp., 60 Cal. App. 4th 288 (1997) oe cccceseeceseesessessecseeseesstenesseesesasesesseesessnsssssneesesnsesesasaseeanesesseeeeeaetenees 8 Dilley v. C.R. Bard, Inc., No. 2:14-cv-01795-ODW(ASx), 2014 WL 1338877 (C.D. Cal. Apr. 3, 2014)... ccsesseeeeeereeene 5 Erickson v. Boston Scientific Corp., 846 F. Supp. 2d 1085 (C.D. Cal. 2011) ccecssessssssscsessssssssssssestnvevsvssssesssieemsenseseseseseniniusnasesnaseeseneese 3 Case No. 4:15-cv-05189-JSW -Vv- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT2 Case 4:15-cv-05189-JSW Document 18 Filed 11/19/15 Page 7 of 23 Evraets v. Intermedics Intraocular, Inc., 29 Cal. App. 4th 779 (1994) Fender v. Medtronic, Inc., 887 F. Supp. 1326 (E.D. Cal. 1995)...c.ccscccesseeseceeseeseeseesseerssssssesseeseessesesseesseseesssasssssseesesseeeseseesness 7 Fontalvo ex rel. Fontalvo v. Sikorsky Aircraft Corp., No. 13-cy-0331-GPC-KSC, 2013 WL 4401437 (S.D. Cal. Aug. 15, 2013)... Ford Motor Co. y. Reese, 684 S.E.2d 279 (Ga. App. 2009)...cssccssssssssesssesesssssesssssssssssesessssssessssesusassssestavavessunsesessieeeesse i Friedman vy. Merck & Co., 107 Cal. App. 4th 454 (2003) ..ccccccccsccssssssssssssessesessesesensessssscasssessunsesesisensesestsesetensenseeeeseseses 8 G.D. Searle and Co. v. Superior Court, 49 Cal. App. 3d 22 (1975) .escesscessseesseesseessecsseesseesseesssessuessesssesesesssesssuesssssusssesssessussseeseesecesesssess 13) In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541 (9th Cir. 1994) . Granger v. Lowe's Home Centers, LLC, No. 1:14-CV-01212-KJM-SKO, 2014 WL 4976134 (E.D. Cal. Oct. 3, 2014) eects 12 Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County. 415 U.S. 423 (1974). Hawkins v. Medtronic, Inc., No. 1:13-CV-00499 AWI SKO, 2014 WL 346622 (E.D. Cal. Jan. 30, 2014) .....cceesseeseeeesees 5,9) Houston v. Medtronic, Inc., 957 F. Supp. 2d 1166 (C.D. Cal. 2013) vocececeesecceseeseessesssessssssesseeseessseesseessesseesesssesessessseseesseeness 9) Hufft vy. Horowitz, 4 Cal. App. 4th 8 (1992) wee cececsesecseeesesesseeresessesescseesseseasesessssssestessecsesecneerssssecensnaneesaeaeeseneed 4 Huntman vy. Danek Medical, Inc., No. 97-2155-IEG RBB, 1998 WL 663362 (S.D. Cal. Jul. 24, 1998) 0.0. eeseeseeeeeeee 8, 10) Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir, 2009) ..0....ccescecesscsessessecseceeeneesesseesesssesessesserseseeseneesesseeserseerssaessessneeeseesenses 5 Kelley v. Corrections Corp. of Am., 750 F. Supp. 2d 1132 (E.D. Cal. 2010).......e.cseeeeessseseeseessssssesssssssesesseeseeseseessesssssessssessneearentens 12) Ko y. Mut. Pharm. Co., Inc., No. C-13-00890-RMW, 2013 WL 3338596 (N.D. Cal. Jul. 1, 2013 Lopez v. Nissan North America, Inc., 201 Cal. App. 4th 572 (2011)... Lorenz v. Sauer, 807 F.2d 1509 (Oth Cir, 1987) ...cececcsccsseceeseeseseseseesseeseeseserssecsessessessnseessueeseessesessssessesseseneeersecaness 9) Case No. 4:15-cv-05189-JSW —vi- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT2 Case 4:15-cv-05189-JSW Document18 Filed 11/19/15 Page 8 of 23 Lucas v. City of Visalia, 726 F. Supp. 2d 1149 (E.D. Cal. 2010).ecseccssssssssssssssessssssesssvasesssessesessasssessseaseseesassstssaeasesesee 5 Mountain Club Owner's Ass'n v. Graybar Elec. Co., Inc., Civ. No. 2:13-1835 WBS KIN, 2014 WL 130767 (E.D. Cal. Jan. 14, 2014)... 6 National Union Fire Ins. Co. of Pittsburgh, Penn. v. Cambridge Integrated Services Group, Inc., 171 Cal. App. 4th 35 (2009) v.ccscccsssssccsssessscnsosesssressesesenssseseusasseeseensenssesnsnessitsesseteseasasesenseses 8 Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101 (C.D. Cal. 2003) o..eeeciceceeceeseesceneeeseseeseseeeseseesesesesseeeeseseesusseseeasseeaeeneee 8) Provencio v. Armor Holdings, Inc., No. CV-F-07-00651 AWI-TAG, 2007 WL 2814650 (E.D. Cal. Sept. 25, 2007) .....ceeeeeeeee 3 Ramirez v. Plough, Inc., 6 Cal. 4th 539 (1993) ooo ceseesseeesneseeniesseesseesseesseesseesseesseesasaessnsssesseesseesserasecsscssee 10, 11, 13) Semegen v. Weidner, 780 F.2d 727 (9th Cir, 1985) ....ceccecseecssecseesseessesseessscensssesesessvecesecssecsnmesseesnnesnesssessneesneeeneeeneesseceness 9 Soule v. General Motors Corp., 8 Cal. 4th 548 (1994) oe ecsecsseesseesneesneesneeseessseessessneesseessesevecsneesesssnessneesniesnessueesneeeneesneesnaee! 4,5 Stanger v. Smith & Nephew, Inc., 401 F. Supp. 2d 974 (E.D. Mo. 2005). Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) wocecesceceeceesecseenesesseseessessesesescssesesssesseseeieseseasereseseasseaesneaeaneecaneee 9 Tabieros v. Clark Equipment Co., 944 P.2d 1279 (Hawaii 1997)....ccccccssessessecseesseeseseessesseessessssessesseessessseesseessesseesssessesssseeensenensene 11 Taylor v. Superior Court, 24 Cal. 3d 890 (1979) .oeceecesecssssesessssesssseetesesecseesessseesesesseseesesnsseceesesesecsneseeecseseseeeeasesesessaneesaseaneesens 13 Telesaurus VPC, LLC vy. Power, 623 F.3d 998 (9th Cir. 2010), cert. denied, 132 S. Ct. 95 (2011)... eeeeeeceeeece tees eceeeeeseeteesteeeeeeneeses 3) Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (Oth Cir, 2003) oo. ccecccecscseeceseseesesceseeesessssesssesecscsueseessseenseessesseesseersseeussnenssesneaeeaes 9 Villegas v. Wells Fargo Bank, N.A., No. C 12-02004 LB, 2012 WL 4097747 (N.D. Cal. Sept. 17, 2012) ......eeceeeeecseeseereesesseeneeenees 9 Statutes Cal. Civ, Code § 1791 (p) ...cecesceesecssessestessesssesssseesessresersrsesesecssesssssssacsressessncsnsescsecssesarsnssnessesneseeaneenesessse 7] Cal. Civ. Code § 1793.02(6)(3)..c.eecsceccsesesessessssesscssereseeescsenesissssacecauesssacseeacsessesesersesusseseeeneacaneesseeeeees 7 Cal. Civ. Code § 3294 0... cceccccecsesssesesesecesenenseesescssccsesecsseseneeensesesassuaseasscseaeeeaceeaeeceeesesesnsaeesseeeaeecaee 12) Case No. 4:15-cv-05189-JSW —vii- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTND Case 4:15-cv-05189-JSW Document 18 Filed 11/19/15 Page 9 of 23 Rules Fed, R. Civ, P.9(b) secssssscssssvssssssssssesesssssssssssesssesusvassssseseessseusvasesaseresssseuusnsssssessesesscsassnsteneee 1,3,8,9 Fed. R. Civ. P. 12(6)(6)..c:esseseesseesseesseesseessessressieseesseeseeseesssesmsseessissiessensaeesasesasessnesseesseessn 2, 12 FOR GAY Po 0 toxtpsia sae eae edn tnt smsatanaceaed teas odes ota nia abv easnoueaat ant ojasesora nia ntiasereioraisrotaoeessaor anteaters 1 Other Authorities 6 Witkin, Summary 10th (2005) Torts, § 1479... cecsesseeeeestssceeesesessesnssseeesesnsneeeseseescssseeeaseanensene 11 CACTI 1202 Restatement (Third) of Torts: Prod. Liab. § 11 (1998)... eeceesecsseeesesseseeeseeeeaeseerereseseearsneseeneneaees 11 Case No. 4:15-cv-05189-JSW — viii - DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTCase 4:15-cv-05189-JSW Document18 Filed 11/19/15 Page 10 of 23 I. INTRODUCTION Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. (hereinafter, “Bard” or “Defendants”) move to dismiss the Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Causes of Action of Plaintiff Wayne Ruden’s Complaint, as well as Plaintiffs claim for punitive damages, because Plaintiff alleges causes of action that are not sustainable under California law and/or because Plaintiff has not adequately pled his claims. Initially, Bard has filed this motion to comply with its responsive pleading obligations under Fed. R. Civ. Proc. 81; however, for the reasons set forth in Bard’s previously filed Motion to Stay [Dkt. No. 12], the Court should defer any decision on the merits of this motion to the judge presiding over the In re: Bard IVC Filter Products Liability Litigation (MDL 2641), to which this case is presently being transferred. This case involves allegations of personal injury related to the use of a Bard inferior vena cava (“IVC”) filter, the Bard Recovery® Filter, bringing it within the scope of the United States Judicial Panel on Multidistrict Litigation’s Order consolidating cases before the Honorable David G. Campbell in the District of Arizona, where dozens of similar cases, including cases originally filed in this District, are already proceeding. See Exhibit “A” to the Declaration of Steven J. Boranian In Support of Bard’s Motion to Stay [Dkt. No. 13]. Therefore, for the sake of judicial economy and consistency of rulings, this Court should defer resolution of this motion to Judge Campbell. Should the Court reach the merits of this Motion, there are numerous compelling reasons why Bard’s Motion should be granted: First, Plaintiff's claims against Bard for alleged strict liability — design defect, breach of implied warranty, and negligent failure to recall/retrofit are not cognizable against manufacturers of prescription medical devices under California law, and therefore fail as a matter of law. Second, Plaintiff’s claim for strict liability — manufacturing defect is inadequately plead under both California law and the pleading standards prescribed by Bell Adl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Third, Plaintiff's claim for negligent misrepresentation fails to meet the particularity standard prescribed by Fed. R. Civ. Proc. 9(b). Finally, Plaintiff's punitive damages allegations fail to allege facts demonstrating the requisite oppression, fraud, or malice. Case No. 4:15-cv-05189-JSW -1- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTND Case 4:15-cv-05189-JSW Document18 Filed 11/19/15 Page 11 of 23 For all these reasons, this Court should stay this action pending its transfer to MDL 2641, or in the alternative, grant Defendants’ motion to dismiss the Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Causes of Action of Plaintiff's Complaint, as well as Plaintiffs claim for punitive damages. Il. FACTUAL BACKGROUND The Complaint alleges that on or about March 2004, Plaintiff underwent a surgical procedure to implant a medical device called the Bard Recovery® Filter. Compl. at §§ 14, 31. The Recovery® Filter is an FDA-cleared medical device, available by prescription through a physician to help prevent life-threatening blood clot disorders. Compl. at {§ 20-22. When medically appropriate, a physician will place the Recovery® Filter in the inferior vena cava (a vein leading to the heart), either temporarily or permanently. Compl. {§ 18-20. The filter consists of a main shaft with extruding spokes that make up its “arms” and “legs.” Compl. {fj 22, 31. The device is designed to trap blood clots arising from the venous system in the pelvis and legs before they have a chance to reach the heart, lungs, or brain, and precipitate a life- threatening event. Compl. {§ 18-20. The Complaint alleges that approximately e/even years after the Recovery® Filter was implanted, Plaintiff discovered in March 2015 that his Recovery® Filter had purportedly fractured. Compl. § 31. According to the Complaint, portions of the device embolized to Plaintiff's arteries, and the right atrium of Plaintiff's heart. Id. Hl. LEGAL STANDARD Dismissal under Federal Rule of Civil Procedure 12(b)(6) is appropriate where the complaint fails to state a claim for relief “that is plausible on its face.” Jgbal, 556 U.S. at 679; Twombly, 550 Case No. 4:15-cv-05189-JSW -2- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTND Case 4:15-cv-05189-JSW Document18 Filed 11/19/15 Page 12 of 23 USS. at 570; see also Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010), cert. denied, 132 S. Ct. 95 (2011).! “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.” Iqbal, 556 U.S. at 678. It is “plaintiff's obligation to provide . .. more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Moreover, federal courts are “not bound to accept as true a legal conclusion couched as a factual allegation.” Jgbal, 556 U.S. at 678; see also Erickson v. Boston Scientific Corp., 846 F. Supp. 2d 1085, 1089-90 (C.D. Cal. 2011). Allegations of fraud are subject to Fed. R. Civ. Proc. 9(b)’s heightened pleading standard, which requires that “the circumstances constituting fraud or mistake shall be stated with particularity.” Fed. R. Civ. Proc. 9(b). Allegations of fraud must also be facially plausible. Cafasso v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (“claims of fraud or mistake . . . must, in addition to pleading with particularity, also plead plausible allegations.”). As explained below, the Complaint’s Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Causes of Action, as well as Plaintiff's claim for punitive damages, fail to meet these standards because they do not state plausible claims for relief against Defendants, and/or fail as a matter of California law. IV. ARGUMENT A. Plaintiff's Fourth And Fifth Causes of Action For Alleged Strict Products Liability - Design Defect Fail Because California Does Not Allow Strict Liability Claims For Design Defects In Prescription Medical Devices Plaintiff's Fourth and Fifth Causes of Action purport to plead claims for strict liability for "Tt is well-settled that federal pleading standards apply to actions removed to federal court. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (holding Rule 9(b)’s heightened pleading standard applied in action removed from state court, noting “[i]t is well-settled that the Federal Rules of Civil Procedure apply in federal court, ‘irrespective of the source of the subject matter jurisdiction, and irrespective of whether the substantive law at issue is state or federal.’”); see also Ko vy. Mut. Pharm. Co., Inc., No. C-13-00890-RMW, 2013 WL 3338596, at *2 (N.D. Cal. Jul. 1, 2013) (applying the federal pleading standard expressed in Iqbal and Twombly in case removed to federal court on the basis of diversity of citizenship); Provencio v. Armor Holdings, Inc., No. CV-F- 07-00651 AWI-TAG, 2007 WL 2814650, at *2 (E.D. Cal. Sept. 25, 2007) (“Whether Plaintiff's allegations are sufficient under state-law pleading requirements is inapposite. Although Plaintiff initially filed his complaint in state court, his case was removed to federal court and is subject to federal pleading requirements under Fed. R. Civ. Proc. 8.”) (citing Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 438 (1974)). Thus, whether Plaintiff has adequately stated a claim against Bard is determined by federal pleading standards. Case No. 4:15-cv-05189-JSW —3- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTND Case 4:15-cv-05189-JSW Document18 Filed 11/19/15 Page 13 of 23 alleged design defect in a prescription medical device; a claim that does not exist under California law. Therefore Plaintiffs Fourth and Fifth Causes of Action fail as a matter of law. Under California law, manufacturers may not be held strictly liable for an alleged design defect in a prescription medical device. See Brown v. Superior Court, 44 Cal. 3d 1049, 1062 (1988) (prescription drugs); Artiglio v. Superior Court, 22 Cal. App. 4th 1388, 1393-97 (1994) (extending Brown to implantable medical device medical devices). This blanket rule does not require a case-by-| case analysis—it applies to all implantable medical devices. Hufft v. Horowitz, 4 Cal. App. 4th 8, 19 (1992) (“Brown teaches that we should eschew engaging in a case-by-case risk/benefit analysis to ascertain whether comment k should or should not apply”). The bar also applies regardless of whether a plaintiff advocates for the application of the “consumer expectation” or “risk/benefit” test for evaluating whether a certain design is defective. /d. at 18 (finding plaintiff's strict liability design defect claim was barred as a matter of law, even if “consumer expectation” test applied).? The Recovery® Filter is an implantable medical device available only through a surgeon. Compl. at {§ 14, 20. Therefore, there can be no strict product liability for an alleged design defect in Plaintiff's device, and Plaintiff's Fourth and Fifth Causes of Action for strict liability for design defect should be dismissed. In addition, because California law does not allow such a claim regardless of how it is pled, Plaintiff's Fourth and Fifth Causes of Action should be dismissed without leave to amend. B. Plaintiff's Sixth Cause of Action For Strict Products Liability For An Alleged Manufacturing Defect Should Be Dismissed Because Plaintiff Fails To Allege A Deviation From Specifications And Causation Plaintiffs Sixth Cause of Action for strict liability for an alleged manufacturing defect is deficient because the Complaint fails to allege that Plaintiff's Recovery® Filter deviated from Bard’s| intended design specifications, and it also fails to allege how any such deviation caused Plaintiff's alleged injuries. Therefore, Plaintiff's claim for manufacturing defect should be dismissed. Under California law, “[a] product contains a manufacturing defect if the product differs * In any event, the “consumer expectation” test is inapplicable to this case, since it involves claims of] personal injury allegedly resulting from the use of a complex medical device and involves theories of defect and causation that are outside the knowledge and experience of a lay juror. See Soule v. General Motors Corp., 8 Cal. 4th 548, 567 (1994). Case No. 4:15-cv-05189-JSW —4- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTND Case 4:15-cv-05189-JSW Document18 Filed 11/19/15 Page 14 of 23 from the manufacturer's design or specifications or from other typical units of the same product line.” CACI 1202; see also In re Coordinated Latex Glove Litig., 99 Cal. App. 4th 594, 605 (2002) (a product is defectively manufactured where it “differs from the manufacturer's intended result or from other ostensibly identical units of the same product line.”). To state a viable manufacturing defect claim, a plaintiff must actually identify the specific manufacturing defect which caused his injury. See Dilley v. C.R. Bard, Inc., No. 2:14-cv-01795-ODW(ASx), 2014 WL 1338877, at *3 (C.D. Cal. Apr. 3, 2014) (dismissing manufacturing defect claim because the plaintiff failed to “identify/explain how the [product] either deviated from [the manufacturer’s] intended result/design or how the [product] deviated from other seemingly identical [products].”). A plaintiff must also allege causation—that the specific manufacturing defect identified in plaintiff's product resulted in plaintiff's alleged injury. See Soule, 8 Cal. 4th at 572 (“A manufacturer is liable only when a defect in its product was a legal cause of injury.”); see also Hawkins v. Medtronic, Inc., No. 1:13-CV—-00499 AWI SKO, 2014 WL 346622, at *8 (E.D. Cal. Jan. 30, 2014) (slip op.) (dismissing products liability cause of action where complaint provided only a “conclusory allegation” of causation, meaning “his right to relief has not risen above the speculative level”). Here, Plaintiff does not allege that his Recovery® Filter deviated from Defendant’s intended design or differed from other seemingly identical units of the same model. Instead, Plaintiff's theory of defect is that his Recovery® Filter “failed to perform as safely as an ordinary consumer would expect when used in a reasonably foreseeable manner.” Compl. at § 96. Therefore, Plaintiff has not adequately stated the elements of a cause of action for manufacturing defect under California law. See Lucas v. City of Visalia, 726 F. Supp. 2d 1149, 1155 (E.D. Cal. 2010) (to state a manufacturing defect claim, plaintiff “must identifv/explain how the [product] either deviated from [the manufacturer’s] intended result/design or how the [product] deviated from other seemingly identical [ ] models”); Baker v. Bayer Healthcare Pharmaceuticals, Inc., NO. C13-0490 THE, 2013 WL 6698653, at *4 (N. D. Cal. Dec. 19, 2013) (dismissing manufacturing defect claim where the complaint failed to allege “how the deviation occurred or whether [plaintiff's device] was manufactured defectively.”); Fontalvo ex rel. Fontalvo v. Sikorsky Aircraft Corp., No. 13-cv-0331- Case No. 4:15-cv-05189-JSW -5- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTND Case 4:15-cv-05189-JSW Document18 Filed 11/19/15 Page 15 of 23 GPC-KSC, 2013 WL 4401437, at *3 (S.D. Cal. Aug. 15, 2013) (dismissing manufacturing defect claim where plaintiff failed to “sufficiently state what particular component or product was allegedly defective, much less allege how those components deviated from an intended result.”). The Complaint also fails to adequately allege causation, i.e., a causal relationship between some purported defect in the manufacture of Plaintiff's Recovery® Filter on the one hand, and Plaintiff's alleged injuries on the other. See Mountain Club Owner's Ass'n v. Graybar Elec. Co., Inc., Civ. No. 2:13-1835 WBS KIN, 2014 WL 130767, at *1-2 (E.D. Cal. Jan. 14, 2014) (dismissing strict liability manufacturing defect claim where plaintiff failed to explain how any alleged defect resulted in plaintiffs damages). Rather, Plaintiff merely alleges that his Recovery® Filter fractured, but fails to plead any facts plausibly suggesting the complication is in any way related to the manufacture of his device. For these reasons, the Complaint fails to adequately plead a strict liability manufacturing defect claim, and Plaintiff's Sixth Cause of Action should be dismissed. Cc Plaintiff's Seventh Cause Of Action For Alleged Breach Of Implied Warranty Fails For Lack Of Privity And Is Barred By California Law In Any Event 1. Plaintiff's implied warranty claim fails for lack of privity Plaintiff's implied warranty claim fails because Plaintiff has never been in privity of contract with Bard, which is a prerequisite to adequately stating a claim for breach of warranty. Under California law, privity between the buyer and seller is a necessary element to any claim for breach of implied warranty. Blanco v. Baxter Healthcare Corp., 158 Cal. App. 4th 1039, 1058-59 (2008) (“The general rule is that privity of contract is required in an action for breach of either express or implied warranty[.]’”) (quoting Al/ West Electronics, Inc. v. M—B-W, Inc., 64 Cal. App. 4th 717, 725 (1998)); Currier v. Stryker Corp., No. 2:11-CV—1203 JAM-EFB, 2011 WL 4898501, at *4 (E.D. Cal. Oct. 13, 2011) (ruling that “there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale.””). Dismissal is warranted where privity is lacking. See Adams v. I-Flow Corp., No. CV09-09550 R(SSx), 2010 WL 1339948, at *4 (C.D. Cal. Mar. 30, 2010) (dismissing breach of warranty claims with prejudice for lack of privity because, “[i]n the context of prescription medical devices and pharmaceuticals, the Case No. 4:15-cv-05189-JSW -6- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTND Case 4:15-cv-05189-JSW Document18 Filed 11/19/15 Page 16 of 23 transaction is between the manufacturer and the physician, not the patient.”). Nowhere in the Complaint does Plaintiff allege that he dealt directly with Bard or entered into a contract with Bard for purchase of his Recovery® Filter; nor could he, as the Recovery® Filter is a prescription medical device sold directly to hospitals providing the service of implantation, not consumers. See Currier, 2011 WL 4898501, at *4 (“Because this is a medical implant case, and the FAC alleges that the product was surgically inserted in a hospital, the Court cannot plausibly infer . . . that Plaintiff relied on anything other than his physician's skill and judgment in selecting [the product], nor that any purchase of the product was based on a warranty from the manufacturer to Plaintiff”); Adams, 2010 WL 1339948, at *4 (“Under controlling California law, privity between the patient and the manufacturer of medical device or pharmaceutical product is a necessary component of breach of warranty claims.”); Evraets v. Intermedics Intraocular, Inc., 29 Cal. App. 4th 779, 788 (1994) (finding no privity where patient “relied upon his physician’s skill or judgment to select or furnish a suitable product.”). Accordingly, Plaintiff's Seventh Cause of Action for alleged breach of implied warranty fails for lack of privity. 2. California law does not allow a claim for breach of the implied warranty of fitness in connection with an implantable medical device Plaintiff's claim for breach of implied warranty fails for the additional reason that there is no legal basis for such a claim under California law for prescription medical devices. By statute, no claim for breach of implied warranty of fitness for a particular purpose exists against a manufacturer of an “assistance device” if the device is surgically implanted by a physician or surgeon. Cal. Civ. Code § 1793.02(e)(3); see also Fender v. Medtronic, Inc., 887 F. Supp. 1326, 1332-33 (E.D. Cal. 1995) (finding defendant entitled to judgment as a matter of law on plaintiff's implied warranty claim because “the statutes specifically exclude actions based on the sale of a surgical implant performed by a physician and surgeon.”). An assistive device is defined as an instrument or accessory that is “used or intended to be used[ ] to assist an individual with a disability in the mitigation or treatment of an injury or disease or to assist or affect or replace the structure or any function of the body of an individual with a disability.” Cal. Civ. Code § 1791(p). As the Complaint itself alleges, “[iJn some people who are at high risk of developing [deep Case No. 4:15-cv-05189-JSW -7T- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTND Case 4:15-cv-05189-JSW Document18 Filed 11/19/15 Page 17 of 23 vein thrombosis or pulmonary embolisms], or who cannot manage their conditions with medication, physicians may recommend surgically implanting an IVC filter to prevent thromboembolic events.” Compl. at { 20. Thus, the Recovery® Filter falls squarely within California’s statutory exemption for implantable medical devices, and as a result, Plaintiff's Seventh Cause of action is barred as a matter of law and should be dismissed. D. Plaintiff's Eighth Cause of Action for Negligent Misrepresentation Should Be Dismissed Because It Is Not Pled With Particularity Under Rule 9(b) Plaintiff's Eighth Cause of Action purports to state a claim for negligent misrepresentation, but Plaintiff fails to plead his claim with the requisite particularity under Fed. R. Civ. Proc. 9(b). Plaintiff's negligent misrepresentation claim therefore warrants dismissal. To establish a cause of action for negligent misrepresentation, a plaintiff must show: (1) a misrepresentation of a material fact, (2) without reasonable grounds for believing it to be true, (3) a legal duty to communicate accurate information; (4) intent to induce reliance; (5) justifiable reliance; (6) causation; and (7) harm. See National Union Fire Ins. Co. of Pittsburgh, Penn. v. Cambridge Integrated Services Group, Inc., 171 Cal. App. 4th 35, 50 (2009) (reciting elements for claim of negligent misrepresentation); Friedman v. Merck & Co., 107 Cal. App. 4th 454, 477 (2003) (“To state a cause of action for negligent misrepresentation, plaintiff must allege facts establishing that defendants owed him a duty to communicate accurate information.”); Huntman v. Danek Medical, Inc., No. 97-2155-IEG RBB, 1998 WL 663362, at *5 (S.D. Cal. Jul. 24, 1998) (dismissing fraud claim finding “no evidence that [surgeon] relied on any statements made by defendant.”). Further, “[a] negligent misrepresentation claim ‘requires a positive assertion,’ not merely an omission.” See Lopez v. Nissan North America, Inc., 201 Cal. App. 4th 572, 596 (2011); see also Diediker v. Peelle Fin'l Corp., 60 Cal. App. 4th 288, 297-98 (1997) (claim for negligent misrepresentation “requires a ‘positive assertion.””). All fraud-based claims, including a claim for negligent misrepresentation, must satisfy the heightened particularity pleading standard stated Rule 9(b). See Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1141 (C.D. Cal. 2003) (“It is well-established in the Ninth Circuit that both claims for fraud and negligent misrepresentation must meet Rule 9(b)'s particularity requirement.”); Case No. 4:15-cv-05189-JSW —8- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO. FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTND Case 4:15-cv-05189-JSW Document18 Filed 11/19/15 Page 18 of 23 Villegas v. Wells Fargo Bank, N.A., No. C 12-02004 LB, 2012 WL 4097747, at *7 (N.D. Cal. Sept. 17, 2012) (“The Ninth Circuit has not yet decided whether Rule 9(b)'s heightened pleading standard applies to a claim for negligent misrepresentation, but most district courts in California hold that it does.”): see also Lorenz v. Sauer, 807 F.2d 1509, 1511-12 (9th Cir. 1987) ("Under California law, negligent misrepresentation is a species of actual fraud."); Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003) (applying Rule 9(b)’s particularity requirement to claims that “sound in fraud”). To satisfy Rule 9(b)’s particularity requirement, an allegation of fraud must be “specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). Plaintiff must plead “the who, what, when, where, and how of the misconduct charged” [Vess, 317 F.3d at 1106], and the Complaint must set forth “what is false or misleading about a statement, and why it is false.” In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (superseded by statute on other grounds); see also Hawkins, 2014 WL 346622, at *12-13 (dismissing fraud pleadings where complaint failed to plead specific content of allegedly false representations and why they were untrue). Here, Plaintiff's negligent misrepresentation claim fails to meet the heightened requirements for pleading fraud, because Plaintiff fails “to allege the specific contents of those representations, when and where Defendants allegedly made them, and to whom they were made . . . which parts of the misrepresentations were misleading, and why they are false.” Houston v. Medtronic, Inc., 957 F. Supp. 2d 1166, 1180 (C.D. Cal. 2013). To begin with, Plaintiff's negligent misrepresentation claim is levied at “De