Kristin Biorn v. Wright Medical Technology, Inc. et al

Filing 27

MINUTES OF IN CHAMBERS ORDER by Judge Christina A. Snyder RE: Defendants' Motion to Dismiss Counts I, VI, VII, and VIII 18 . Defendant's Motion to Dismiss Plaintiff's First, Sixth, Seventh, and Eighth Claims pursuant to Federal Rule of Civil Procedure 12(b)(6) is DENIED. The hearing date of 11/23/2015 at 10:00 AM is VACATED. Court Reporter: Not Present. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:15-cv-07102-CAS-KS

Title

KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET
AL.

Present: The Honorable

Date

November 19, 2015

CHRISTINA A. SNYDER, U.S. DISTRICT JUDGE

CONNIE LEE
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

N/A

N/A

Proceedings:

DEFENDANTS’ MOTION TO DISMISS Counts I, VI, VII, and
VIII (Docket #18, filed October 21, 2015)

The Court finds this motion appropriate for decision without oral argument. See
Fed. R. Civ. P. 78; C.D. Cal. Local Rule 7-15. Accordingly, the matter is hereby taken
under submission.
I.

INTRODUCTION

On September 9, 2015, plaintiff Kristin Biorn filed the instant action against
defendants Wright Medical Technology, Inc. (“WMT” or “defendant”) and Wright
Medical Group, Inc. (“WMG”) (collectively, “defendants”). See Compl. Plaintiff asserts
eights claims against defendants: (1) strict products liability—manufacturing defect, (2)
strict products liability—failure to warn, (3) negligence, (4) negligence—failure to
recall/retrofit, (5) breach of implied warranty, (6) fraudulent misrepresentation, (7)
fraudulent concealment, and (8) negligent misrepresentation. Id.
On October 20, 2015, the parties stipulated to dismiss WMG from this action and
plaintiff’s fifth claim for breach of implied warranty. Dkt. 17. The Court dismissed
defendant WMG and plaintiff’s claim for breach of implied warranty without prejudice
on October 21, 2015. Id. at 2.
On October 21, 2015, defendant WMT filed a motion to dismiss plaintiff’s first,
sixth, seventh, and eighth claims pursuant to Federal Rule of Civil Procedure 12(b)(6).
Dkt. 18. On November 2, 2015, plaintiff filed an opposition, Dkt. 20, and on November
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Title

KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET
AL.

6, 2015, WMT filed a reply, Dkt. 21. Having carefully considered the parties’ arguments,
the Court finds and concludes as follows.
II.

BACKGROUND

Plaintiff’s complaint alleges the following facts: Plaintiff underwent a total
surgical replacement of her left hip on August 20, 2013. Compl. ¶ 3. During the
procedure, Dr. Jason Snibbe (“Dr. Snibbe”) implanted into plaintiff a hip system called
the Profemur Total Hip System (“Profemur”). Id. ¶¶ 3, 59. On or about April 5, 2015,
while “[plaintiff] was performing a normal and expected activity of daily living,” the
Profemur device suffered a “catastrophic failure” and broke into two pieces. Id. ¶ 62-63.
Plaintiff was subsequently taken to St. John’s Hospital emergency room and from there
transferred to Cedars-Sinai Medical Center of Los Angeles where Dr. Snibbe surgically
removed the Profemur on April 6, 2015. Id. ¶¶ 64–65.
The Profemur is an artificial hip system that consists of two components: a
modular neck and a femoral stem. Id. ¶ 13. The complaint alleges that defendants are
corporations engaged in the business of “designing, licensing, manufacturing,
distributing, selling, [and] marketing . . . numerous prosthetic orthopedic products,
including the [Profemur].” Id. ¶¶ 4–5, 7. Defendants began manufacturing and selling
the Profemur after December 13, 2000, when defendants received permission from the
United States Food and Drug Administration (“FDA”) to distribute the Profemur within
the United States. Id. ¶¶ 13, 16. The device the FDA approved contains a modular neck
that was designed and had previously been distributed in Europe by a company called
Cremascoli. Id. ¶ 14. The complaint alleges that the “FDA never considered and
approved the safety of the [Profemur], but instead concluded only that [it] was
substantially equivalent to an already legally marketed device, i.e., the Cremascoli
modular neck device.” Id. ¶ 15.
The complaint further alleges that defendants made “representations, statements,
claims, and guarantees about its Profemur modular necks” in “various marketing and
promotional material published and distributed by [defendants] from approximately
[2002 to 2005].” Id. ¶ 20. Specifically, plaintiff alleges that WMT made the following
representations:
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Title

KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET
AL.
The modular neck used with the Profemur Hip has been employed by Wright
Cremascoli for over 15 years. The necks were designed in 1985 and have been
successfully implanted in over 50,000 patients requiring both primary and revision
hip procedures. The necks are used in other Wright Cremascoli hip systems
besides the Profemur Hip. None of the necks has experienced a clinical failure
since their inception.
The modular neck system, designed by Cremascoli in 1985 (U.S. Patent
#4,957,510), has now been successfully implanted in over 50,000 patients
requiring both primary and revision hip arthroplasty. Extensive laboratory tests
have proven that the coupling between the modular neck and femoral implant
guarantees:
•
•
•

Structural reliability
Absence of significant micromovement
Absence of fretting corrosion

Id. (emphasis in original).
Despite these representations, plaintiff alleges that defendants had in fact received
notice of fractures of the Profemur necks that had been implanted in patients in Europe
prior to 2001. Id. ¶ 24. However, defendants allegedly failed to disclose this history of
fractures in European patients to the FDA. Id. ¶¶ 24–25. Plaintiff further claims that
defendants did not inform surgeons known to have implanted the Profemur of any
fractures until December 1, 2008, when they issued a safety alert to medical
professionals. Id. ¶ 36. This safety alert provided that defendants had “received reports
of 43 modular neck failures as of November 21, 2008” and that “initial investigations
have revealed several commonalities in these failures: heavyweight males, long modular
necks and patient activities such as heavy lifting and impact sports.” Id. Despite their
investigations into these fractures, defendants allegedly never issued any warning that the
Profemur should not be used in heavier patients or in patients who engage in heavy lifting
or impact sports. Id. ¶¶ 39–42. Plaintiff claims that defendants failed to inform patients
with Profemur or their surgeons that: (1) Profemur has a “higher than expected” rate of
fracture, (2) Profemur was “known to be failing from fatigue fractures in high activity or
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Case No.

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November 19, 2015

Title

KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET
AL.

heavier weight patients at higher than expected rates,” and (3) Profemur was known to
fail during normal activities of daily living. Id. ¶¶ 80–82.
III.

LEGAL STANDARD
A.

Rule 12(b)(6)

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a complaint. Under this Rule, a district court
properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.’ ” Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Police Dep’t,
901 F.2d 696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations must
be enough to raise a right to relief above the speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see Moss v. United States Secret Service,
572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a complaint to survive a motion to dismiss, the
non-conclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief.”). Ultimately,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
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UNITED STATES DISTRICT COURT
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Case No.

2:15-cv-07102-CAS-KS

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November 19, 2015

Title

KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET
AL.

Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court
may, however, consider exhibits submitted with or alleged in the complaint and matters
that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon
Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); see Lee v. City of Los
Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
As a general rule, leave to amend a complaint which has been dismissed should be
freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the
court determines that the allegation of other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
B.

Rule 9(b)

Federal Rule of Civil Procedure 9(b) requires that the circumstances constituting a
claim for fraud be pled with particularity. Federal Rule of Civil Procedure 9(b) applies
not just where a complaint specifically alleges fraud as an essential element of a claim,
but also where the claim is “grounded in fraud” or “[sounds] in fraud.” Vess v. CibaGeigy Corp. U.S.A., 317 F.3d 1097, 1103–04 (9th Cir. 2003). A claim is said to be
“grounded in fraud” or “‘sounds in fraud’” where a plaintiff alleges that defendant
engaged in fraudulent conduct and relies on solely on that conduct to prove a claim. Id.
“In that event, . . . the pleading of that claim as a whole must satisfy the particularity
requirement of [Fed. R. Civ. P.] 9(b).” Id. However, where a plaintiff alleges claims
grounded in fraudulent and non fraudulent conduct, only the allegations of fraud are
subject to heightened pleading requirements. Id. at 1104.
A pleading is sufficient under Fed. R. Civ. P. 9(b) if it “[identifies] the
circumstances constituting fraud so that the defendant can prepare an adequate answer
from the allegations.” Walling v. Beverly Enters., 476 F.2d 393, 397 (9th Cir. 1973).
This requires that a false statement must be alleged, and that “circumstances indicating
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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Case No.

2:15-cv-07102-CAS-KS

Date

November 19, 2015

Title

KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET
AL.

falseness” must be set forth. In re GlenFed Sec. Litig., 42 F.3d 1541, 1548 (9th Cir.
1994). Thus, Rule 9(b) requires a plaintiff to “identify the ‘who, what, when, where and
how of the misconduct charged,’ as well as ‘what is false or misleading about [the
purportedly fraudulent conduct], and why it is false.” Cafasso, ex rel. United States v.
Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (quoting Ebeid ex rel.
United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010)).
IV.

ANALYSIS
A.

Plaintiff’s First Claim

WMT moves to dismiss plaintiff’s first claim for strict products
liability––manufacturing defect. “A product has a manufacturing defect if it ‘differs from
the manufacturer’s intended result or from other ostensibly identical units of the same
product line.’ ” Johnson v. United States Steel Corp., 240 Cal. App. 4th 22, 32 (2015)
(quoting Barker v. Lull Engineering Co., 20 Cal. 3d 413, 429 (1978)). Alternatively, “[a]
manufacturing defect exists when an item is produced in a substandard condition.”
McCabe v. Am. Honda Motor Co., 100 Cal. App. 4th 1111, 1120 (2002). To state a
manufacturing defect claim, a plaintiff must allege “how the [product] either deviated
from [the manufacturer’s] intended result/design or how the [product] deviated from other
seemingly identical [] models.” Lucas v. City of Visalia, 726 F. Supp. 2d 1149, 1155
(E.D. Cal. 2010) (emphasis in original). “A bare allegation that the [product] had ‘a
manufacturing defect’ is an insufficient legal conclusion.” Id. (citing Iqbal, 556 U.S.
662, 677 (2009)).
WMT argues that plaintiff’s first claim should be dismissed because she fails to
allege sufficient facts to support a manufacturing defect claim. Mot., at 3. Specifically,
WMT contends that plaintiff has failed to identify either how the Profemur deviated from
the manufacturer’s intended design or result, or how the product deviated from seemingly
identical models. Mot., at 4. However, in plaintiff’s complaint, she alleges that the hip
device she received “was dangerous, unsafe, and defective in manufacture” because it
contained defects including “an unreasonably high propensity for corrosion, fretting, and
fatigue under normal and expected use of the device, leading to fracture of the modular
neck and catastrophic failure of the device, requiring revision surgery.” Compl. ¶ 90.
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UNITED STATES DISTRICT COURT
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Case No.

2:15-cv-07102-CAS-KS

Date

November 19, 2015

Title

KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET
AL.

Accordingly, plaintiff has alleged both how the product she received differed from
WMT’s intended result and how it differed from other identical models––it suffered a
“catastrophic failure” when the modular neck fractured into two separate pieces. The fact
that the product suffered such a significant, and potentially dangerous, failure strongly
suggests that it was produced in a “substandard condition” or at least in a manner
different from WMT’s “intended result.” And it appears that, unlike the product plaintiff
received, many consumers have never suffered similar failures in their Profemurs. See
Compl. ¶¶ 32-35. Similarly, plaintiff has alleged that, unlike the intended design, and
unlike identical models, the Profemur she received had “an unreasonably high propensity
for corrosion, fretting, and fatigue under normal and expected use.” Id. ¶ 90.
Taken together, plaintiff has alleged sufficient facts regarding a potential
manufacturing defect in the Profemur that was implanted in her hip to “nudge[] [her]
claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
Accordingly, WMT’s motion to dismiss plaintiff’s first claim is DENIED.
B.

Plaintiff’s Sixth, Seventh, and Eighth Claims

WMT seeks dismissal of plaintiffs’ sixth claim for fraudulent misrepresentation,
seventh claim for fraudulent concealment, and eighth claim for negligent
misrepresentation. The principal basis for WMT’s motion is that plaintiffs’ claims,
which sound in fraud, are not pled with particularity as required by Federal Rule of Civil
Procedure 9(b).1

1

The parties dispute whether plaintiff’s claim for negligent misrepresentation
should be evaluated under Rule 8, or the more stringent standard for claims sounding in
fraud under Rule 9(b). There is some disagreement amongst courts regarding whether
claims for negligent misrepresentation must satisfy Rule 9(b). See Valencia v. Wells
Fargo Home Mortgage Inc., 2014 WL 5812578 (N.D. Cal. 2014) (“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.”)
(quoting Villegas v. Wells Fargo Bank, N.A., 2012 WL 4097747, at *7 (N.D. Cal.
2014)). Some courts have held that where a negligent misrepresentation claim is
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UNITED STATES DISTRICT COURT
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November 19, 2015

Title

KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET
AL.

Here, plaintiff’s claims are predicated on defendant’s alleged misrepresentations
and omissions regarding the safety and effectiveness of the Profemur. Opp’n at 4.
Plaintiff alleges that defendants made the following representations in their marketing
materials:
The modular neck used with the Profemur Hip has been employed by Wright
Cremascoli for over 15 years. The necks were designed in 1985 and have been
successfully implanted in over 50,000 patients requiring both primary and revision
hip procedures. The necks are used in other Wright Cremascoli hip systems
besides the Profemur Hip. None of the necks has experienced a clinical failure
since their inception.
The modular neck system, designed by Cremascoli in 1985 (U.S. Patent
#4,957,510), has now been successfully implanted in over 50,000 patients
requiring both primary and revision hip arthroplasty. Extensive laboratory tests
have proven that the coupling between the modular neck and femoral implant
guarantees:
•
•
•

Structural reliability
Absence of significant micromovement
Absence of fretting corrosion

Compl. ¶ 20 (emphasis in original). Plaintiff quotes this representation from a specific
marketing material identified as “Wright Medical Technical Monograph MH688-102”
“grounded in fraud,” Rule 9(b) applies. See,e.g., Vess v. Ciba-Geigy Corp., 317 F.3d
1097, 1103–04 (9th Cir. 2003) (“The rule does not require that allegations supporting a
claim be stated with particularity when those allegations describe non-fraudulent
conduct.”); but see Petersen v. Allstate Indem. Co., 281 F.R.D. 413, 418 (C.D. Cal.
2012) (“[B]ecause an allegation of negligent misrepresentation suggests only that the
defendant failed to use reasonable care––an objective standard––it does not result in the
kind of ‘harm’ that Rule 9(b) was designed to prevent.”) (emphasis in original). However,
as stated infra, the Court finds that, even applying the more stringent standards of Rule
9(b) plaintiff has adequately alleged a claim for negligent misrepresentation.
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KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET
AL.

and copyrighted in 2004. Id.
Further, plaintiff alleges that patient testimonials that appeared in defendant’s
marketing materials “represented that patients who received [defendants’] artificial hips
have already returned to or are about to return to such activities as running, jogging, snow
skiing, water skiing, marathon running, tennis, racquetball, golf, horseback riding, work
that involves lifting and moving heavy objects, active military duty, karate, competitive
wrestling and competitive motocross racing, among other activities.” Id. ¶ 53. These
testimonials were allegedly available to defendants’ “representatives/distributors,
physicians, patients, and the public” and appeared in materials published by Wright from
2005 to present. Id. ¶ 53. Moreover, plaintiff alleges that “plaintiff’s healthcare
providers were unaware of the falsity of said representations,” which led her to rely on
them. Id. ¶¶ 127-28.
Next, plaintiff alleges that prior to her implant, defendant failed to inform its
patients or surgeons about certain facts including: (1) reports of fractures of Profemur, Id.
¶ 36; (2) Profemur’s higher than anticipated rates of failure due to fracture, Id. ¶ 80; (3)
that Profemur is known to fail in high activity or heavier patients, Id. ¶¶ 81–83; and (4)
that Profemur is known to fail from fractures during normal activities of daily living, Id. ¶
82.
Plaintiff argues that her allegations that WMT failed to disclose this information,
together with the alleged affirmative misrepresentations quoted above, satisfy the
pleading requirements of Rule 9(b). The Court agrees. Rule 9(b) requires that plaintiffs’
allegations of fraud must be pled with enough particularity to enable WMT to “prepare an
adequate answer from the allegations.” Walling v. Beverly Enterprises, 476 F.2d 393,
397 (9th Cir. 1973). After reviewing the allegations set forth above, the Court concludes
that the complaint is sufficiently specific to permit WMT to answer. Plaintiff identifies
specific statements, made at specific times, and in specific marketing materials. This is
sufficient to satisfy Rule 9(b).
Nonetheless, WMT argues that the complaint does not sufficiently allege that
plaintiff relied on the statements she identifies. See Reply at 3. To adequately plead
reliance, a plaintiff must “establish a complete causal relationship between the alleged
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UNITED STATES DISTRICT COURT
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Case No.

2:15-cv-07102-CAS-KS

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November 19, 2015

Title

KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET
AL.

misrepresentations and the harm claimed to have resulted.” Mirkin v. Wasserman, 5 Cal.
4th 1082, 1092 (1993). “Actual reliance occurs when the defendant’s misrepresentation
is an immediate cause of the plaintiff’s conduct, altering his legal relations, and when,
absent such representation, the plaintiff would not, in all reasonable probability, have
entered into the transaction.” Cadlo v. Owens-Illinois, Inc., 125 Cal. App. 4th 513, 519
(2004) (citing Engalla v. Permanente Medical Group, Inc., 15 Cal. 4th 651, 976 (1997)).
Here, plaintiff alleges that defendant failed to inform its Profemur patients of
certain risks by omitting material facts. See Opp’n at 5. Specifically, the complaint
alleges that “plaintiff and plaintiff’s healthcare providers relied on Defendants’
incomplete and inaccurate representations as to the safety and performance of the
[Profemur] when selecting, recommending, and implanting the [Profemur].” Compl. ¶
136. Stated differently, absent the misrepresentations, plaintiff and her surgeon would
not have selected the Profemur. Thus, because plaintiff has established a causal
relationship, the Court finds that plaintiff has sufficiently pled reliance on WMT’s
statements. Mirkin, 5 Cal. 4th at 1092; see Romero v. Countrywide Bank, N.A., 740
F.Supp. 2d 1129, 1146 (N.D. Cal. 2010) (“Plaintiffs can demonstrate reliance by showing
that ‘had the omitted information been disclosed, [they] would have been aware of it and
behaved differently.’”) (citations omitted).
Defendant resists this conclusion and argues that plaintiff “does not allege she ever
saw this so-called marketing material, when she saw it, or that she relied upon it in
choosing to obtain the hip system at issue.” Reply at 4. In support of its argument,
defendant relies on Rice v. Sunbeam Products, Inc., 2013 WL 146270 (C.D. Cal. 2013)
(Snyder, J.). In Rice, this Court found that the plaintiff had failed to sufficiently allege
claims for fraudulent misrepresentation and omission in connection with her purchase of
an allegedly defective Crock-Pot. Id. at *6. However, in that case, while plaintiff alleged
that defendants had misrepresented that their Crock-Pot’s were “safe for household use”
she “[did] not allege if these statements appear in the Crock–Pot Owner’s Manual,
packaging, advertisements, or elsewhere.” Id. Here, by contrast, plaintiff alleges that
defendant’s misrepresentations appeared in “marketing and promotional material
published and distributed by [defendants] from approximately the year 2002, and into the
year 2005, and available to [defendant’s] sales representatives and distributors, surgeons,
patients, and the general public.” Compl. ¶ 20. Plaintiff additionally provides a citation
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Title

KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET
AL.

to the Wright Medical Technical Monograph MH688-102, copyright 2004, as the source
containing these alleged misrepresentations. Id. Accordingly, this case is factually
distinct from Rice.
Defendant further asserts that the allegations in support of plaintiff’s fraudulent
concealment claim sound more in the nature of a failure to warn claim. See Reply at 6.
However, defendant cites no authority for the proposition that factual allegations in
support of a failure to warn claim cannot also support fraud claims. Moreover, because
many of plaintiff’s claims rest on omission of facts, the level of specificity required is
relaxed. Falk v. General Motors Corp., 496 F. Supp. 2d 1088, 1099 (N.D. Cal. 2007)
(“[A] fraud by omission claim can succeed without the same level of specificity required
by a normal fraud claim.”). Thus, the Court finds that plaintiff has pled her claims with
the requisite particularity to satisfy Rule 9(b). Accordingly, the Court DENIES
defendant’s motion to dismiss plaintiff’s fraudulent misrepresentation, fraudulent
concealment, and negligent misrepresentation claims.2

2

Finally, WMT asserts that plaintiff’s fraud claims are not cognizable because they
are in effect allegations of fraud on the FDA. See Mot., at 11. According to defendant,
because there is no recognized private cause of action under the Food, Drug, and
Cosmetics Act (“FDCA”), plaintiff’s fraud claims are precluded as preempted under
federal law. Id. However, as written, the complaint does not allege fraud on the FDA,
but rather fraud on the plaintiff and her healthcare providers. Should the factual basis for
plaintiff’s fraud claims turn out to be fraudulent representations made to the FDA, WMT
is free to address that issue on summary judgment.
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KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET
AL.

V.

Date

November 19, 2015

CONCLUSION

In accordance with the foregoing, defendant’s motion to dismiss plaintiff’s first,
sixth, seventh, and eighth claims pursuant to Federal Rule of Civil Procedure 12(b)(6) is
DENIED.
The hearing date of November 23, 2015 at 10:00 AM, is VACATED.
IT IS SO ORDERED.
00
Initials of
Preparer

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