Coleman et al v. Boston Scientific Corporation

Filing 29

ORDER re defendant's Motion to Dismiss, document 9 , DISMISSING plaintiffs' 4th cause of action, with prejudice, and FURTHER DISMISSING plaintiffs' causes of action 1-3 and 5-9, without prejudice, and DIRECTING plaintiffs to file an amended complaint within 60 days of electronic service of the Court's Memorandum Decision, document 27 ; responsive pleading due 20 days after service of same; order signed by Judge Oliver W. Wanger on 5/2/2011. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT

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PAMELA COLEMAN, an individual,
MARY BOWER, an individual, and
12 KATHLEEN PAISON, an individual,
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Plaintiffs,

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vs.

BOSTON SCIENTIFIC
CORPORATION, a Massachusetts
16 corporation, and DOE
MANUFACTURERS one through one
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Defendants.

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Case No. 1:10-CV-01968-OWW-SKO
Judge: Oliver W. Wanger
Ctrm.: 3
ORDER REGARDING DEFENDANT
BOSTON SCIENTIFIC
CORPORATION’S MOTION TO
DISMISS

Complaint filed: 10/20/2010

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On April 11, 2011, Defendant Boston Scientific Corporation’s (“BSC”) Motion

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to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) and, in the alternative, Motion to

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Dismiss Certain Plaintiffs Pursuant to Fed.R.Civ.P. 12(b)(3) and Fed.R.Civ.P. 20,

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came on regularly for hearing by the Court. After considering the motion, the

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arguments of counsel, and all papers presented to the Court, the Court orders as

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follows:

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ORDER GRANTING
DEFENDANT’S MOTION TO DISMISS

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A. Product Identification

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The complaint does not comply with Rule 8 of the Federal Rules of Civil

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Procedure because Plaintiffs do not allege which state they underwent the procedures

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to implant the mesh devices or the medical facilities involved. In addition, the

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complaint is ambiguous with respect to whether each Plaintiff had the same type of

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mesh device implanted. When a Plaintiff is unable to identify a specific medical

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device in her complaint, information revealing when, where, and why a procedures

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was performed should be pleaded to assist manufacturers in identifying which of its

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products is implicated.

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Plaintiffs’ complaint must be amended to (1) state clearly whether Plaintiffs’

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claims are based on one defective device common to all Plaintiffs, or whether claims

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asserted based on multiple mesh devices that share a common defect; and (2) state

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clearly the location where each Plaintiffs’ respective procedures was performed.

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B. Breach of Implied Warranty

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Plaintiffs’ cause of action for breach of implied warranty is not cognizable

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under California law because privity of contract is required for implied warranty

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claims. See, e.g., Evraets v. Intermedics Intraocular, Inc., 29 Cal. App. 4th 779, 857

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(1994); Blanco v. Baxter Healthcare Corp., 158 Cal. App. 4th 1039, 1058 (2008).

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Plaintiffs’ fourth cause of action for breach of implied warranty is dismissed, with

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prejudice.

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C. Breach of Express Warranty

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Plaintiffs’ cause of action for breach of express warranty fails because the

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complaint does not allege facts sufficient to give rise to a plausible basis to believe

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that Plaintiffs relied on any representations made by BSC in their decision to use the

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mesh devices. See Fieldstone Co. v. Briggs Plumbing Products, Inc. 54 Cal.App.4th

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347, n.10 (1997). Plaintiffs’ allegations that BSC advertised the mesh devices as safe

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and effective are conclusory and lack general information describing the alleged

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ORDER GRANTING
DEFENDANT’S MOTION TO DISMISS

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conduct. Such conclusory allegations are insufficient to support a plausible basis for a

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claim of breach of express warranty. Quatela v. Stryker Corp., 2010 U.S. Dist.

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LEXIS 133706 at *4-6 (N.D. Cal. 2010). Plaintiffs’ fifth cause of action for breach of

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express warranty is dismissed, with leave to amend.

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D. Fraud and Fraud by Concealment

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“To comply with Rule 9(b), allegations of fraud must be specific enough to give

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defendants notice of the particular misconduct which is alleged to constitute the fraud”

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and the allegations must include the “time, place, and specific content of the false

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representations as well as the identities of the parties to the misrepresentations.”

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Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (internal citations omitted).

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Plaintiffs’ general allegations do not comply with the elevated pleading standard for

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fraud-based claims as set forth in Rule 9(b) of the Federal Rules of Civil Procedure.

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Specifically, the complaint does not allege facts sufficient to support an inference that

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BSC knew of the alleged defects of the mesh devices at any time relevant to the

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complaint or that any false representations were made to Plaintiffs on which they

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relied. Plaintiffs’ sixth and seventh causes of action for fraud and fraud by

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concealment are dismissed, with leave to amend.

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E. Negligent Misrepresentation

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Plaintiffs’ cause of action for negligent misrepresentation fails because, inter

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alia, the complaint does not allege when such representations were made. Moreover,

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the complaint does not allege facts sufficient to give rise to an inference that, at the

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time BSC made alleged representations concerning the safety of the mesh devices,

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they had any reason to know of the dangers Plaintiffs complain of or that they made

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any misrepresentations without a reasonable basis for believing them to be true.

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Plaintiffs’ eighth cause of action for negligent misrepresentation is dismissed, with

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leave to amend.

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ORDER GRANTING
DEFENDANT’S MOTION TO DISMISS

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F. Violation of State Consumer Fraud and Deceptive Trade Practices Act

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As discussed above, the complaint is insufficient with respect to the fraud and

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misrepresentation claims and the complaint is fatally vague with respect to which

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mesh devices are the subject of Plaintiffs’ claims. As there are no predicate claims

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alleged in the complaint, Plaintiffs’ claims of unfair competition or violation of

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California Business and Professions Code sections 17200 et seq. and 17500 et seq.

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cannot stand. Plaintiffs’ ninth cause of action for violation of state consumer fraud

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and deceptive trade practices act is dismissed, without prejudice.

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G. Venue and Joinder
BSC contends Plaintiffs Mary Bower and Kathleen Paison have been

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improperly joined in this action under Rule 20 of the Federal Rules of Civil Procedure

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and their claims should be dismissed under Rule 12(b)(3) of the Federal Rules of Civil

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Procedure for failure to assert proper venue. The propriety of joinder and venue

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cannot be ascertained due to the pleading deficiencies discussed above. BSC may

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renew its objections to joinder and venue after the filing of an amended complaint.

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Based on the foregoing, IT IS HEREBY ORDERED that Plaintiffs’ fourth

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cause of action for breach of implied warranty is dismissed, with prejudice. Plaintiffs’

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first, second, third, fifth, sixth, seventh, eighth, and ninth causes of action are

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dismissed, without prejudice.

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IT IS FURTHER ORDERED that Plaintiffs file an amended complaint within

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sixty (60) days of electronic service of the Court’s Memorandum Decision Regarding

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Motion to Dismiss. (Doc. No. 27.) Defendant BSC shall answer or otherwise respond

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to the amended complaint within twenty (20) days of the service of the amended

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complaint.

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Dated: May 2, 2011

/s/ OLIVER W. WANGER
United States District Court Judge

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ORDER GRANTING
DEFENDANT’S MOTION TO DISMISS

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