Sieloff v. Stryker Corporation et al

Filing 11

ORDER granting 8 Defendants' Motion to Dismiss Counts 3,4,6,7,8,9,10 and 11. Signed by Judge Frederick J Martone on 11/16/12.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ryan Sieloff,
Plaintiff,

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vs.

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Stryker Corporation;
Corporation,

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Defendants.

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Stryker

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No. CV 12-01834-PHX-FJM
ORDER

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The court has before it defendants' motion to dismiss (doc. 8). Plaintiff did not
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respond to the motion and the time for doing so has long since expired. See LRCiv 7.2(c).
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Plaintiff's complaint alleges that he developed chondrolysis and suffered serious
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injuries as a direct and proximate result of being administered a local anesthetic into his left
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shoulder joint via the defendants' pain pump. Plaintiff seeks to recover damages from
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defendants under the following theories: (1) strict products liability for design defect; (2)
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strict products liability for defect due to inadequate warning; (3) strict products liability for
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defect due to nonconformance with representations; (4) strict products liability for defect due
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to failure of adequate test; (5) negligence; (6) breach of express warranty; (7) breach of
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implied warranty; (8) fraud/misrepresenation; (9) negligent misrepresentation; (10) violation
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of the Arizona Consumer Fraud Act; and (11) punitive damages.
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Defendants move to dismiss counts three, four, six, seven, eight, nine, ten and eleven

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for failure to state a claim upon which relief can be granted. Because plaintiff failed to

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respond to the motion, we construe the lack of a response as a concession and grant the

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motion summarily. See LRCiv 7.2(i) (“if . . . counsel does not serve and file the required

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answering memoranda . . . such non-compliance may be deemed a consent to the denial or

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granting of the motion and the Court may dispose of the motion summarily”).

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We dismiss counts three and four because they are not based on a cognizable legal

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theory. Counts six, seven, eight, nine, ten and eleven fail to meet the pleading standard set

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forth in Fed. R. Civ. P. 8(a) and 12(b)(6). Plaintiff's sixth cause of action fails because the

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complaint does not state specific facts that demonstrate any actionable express warranty

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existed, or that the warranty became part of the basis of the bargain. See A.R.S. § 47-2313.

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We dismiss count seven because theories of breach of implied warranties and strict liability

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merge in product liability actions. See Scheller v. Wilson Certified Foods, Inc., 114 Ariz.

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159, 161, 559 P.2d 1074, 1076 (Ct. App. 1976). Plaintiff's eighth, ninth, and tenth causes of

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actions for fraud and misrepresentation fail under Fed. R. Civ. P. 9(b) because they are not

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pled with particularity. Plaintiff alleges that defendants represented to the public and

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healthcare community that the pain pump was safe and effective. However, plaintiff wholly

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fails to identify the time or place of the alleged fraudulent statements, and any specific

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communications that he or his prescribing physician viewed or relied upon. Finally, we

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dismiss count eleven for punitive damages because plaintiff's generic, boilerplate allegation

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that defendants' actions were willful, malicious, outrageous, and unconscionable, does not

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satisfy Ashcroft v. Iqbal 556 U.S. 662, 679, 129 S.Ct. 1937, 1950 (2009).

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IT IS ORDERED GRANTING defendants' motion to dismiss counts three, four, six,
seven, eight, nine, ten and eleven (doc. 8).

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DATED this 16th day of November, 2012.

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