Currier v. Stryker Corporation et al

Filing 25

ORDER signed by Judge John A. Mendez on 10/12/11 ORDERING the motion to dismiss the first claim for relief for strict liability is GRANTED. The allegations of design defect are dismissed, with prejudice. Plaintiff is given leave to amend the allegati ons of manufacturing defect. The motion to dismiss the second claim for relief for negligence is DENIED. The motion to dismiss the third claim for relief for breach of warranty is GRANTED. The breach of warranty claim is dismissed, with prejudice. Plaintiff is ordered to file a Second Amended Complaint within twenty-one (21) days of the date of this order.(Matson, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TRAVIS J. CURRIER, an individual,)
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Plaintiff,
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v.
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STRYKER CORPORATION; STRYKER
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SALES CORPORATION; HOWMEDICA
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OSTEONICS CORP, dba STRYKER
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ORTHOPAEDICS and DOES 1-20,
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Defendants.
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Case No. 2:11-CV-1203 JAM-EFB
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS

This matter is before the Court on Defendants’ Stryker

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Corporation (“Stryker”) and Howmedica Osteonics Corp (“Howmedica”)

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(collectively “Defendants”) Motion to Dismiss (Doc. #16) Plaintiff

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Travis Currier’s (“Plaintiff”) First Amended Complaint (“FAC”)

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(Doc. #8).

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Court of the County of Sacramento on grounds of diversity

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jurisdiction (Doc. #1).

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pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to

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state a claim.

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forth below, the Motion to Dismiss is GRANTED in part and DENIED in

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part.1

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This matter was removed to this court from the Superior

Defendants move to dismiss the FAC

Plaintiff opposes the motion.

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For the reasons set

This matter was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). Oral argument was originally
scheduled for September 7, 2011.
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I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

This action arises from a medical device that was surgically

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implanted in Plaintiff’s leg.

The FAC alleges that a portion of

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Plaintiff’s left femur was removed due to sarcoma and replaced with

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femoral endoprothesis (a femoral stem and jointed pieces), in

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December 1994.

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femoral endoprothesis was Defendants’ product, and was dangerous

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and defective when it was inserted into Plaintiff’s femur.

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Compl., ¶ 12.

Plaintiff was 15 at the time of the surgery.

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Compl., ¶ 11.

The FAC alleges that despite Defendants’

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representations to Plaintiff, Plaintiff’s physician and Plaintiff’s

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parents that the product was of superior quality and would last for

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Plaintiff’s lifetime, the product failed and broke in February

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2010, causing injury and necessitating surgery to replace portions

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of the product that broke.

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three claims against Defendants for Strict Liability, Negligence

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and Breach of Warranty.

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expenses and lost wages.

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entirety.

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pleading standards and pleads claims that are unavailable under

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California law.

Am. Compl., ¶ 11.

Plaintiff alleges that the

Am. Compl., ¶ 13.

Am.
Am.

The FAC contains

Plaintiff seeks general damages, medical
Defendants move to dismiss the FAC in its

Defendants contend that the FAC does not meet federal

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II.

OPINION

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A.

Legal Standard

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A party may move to dismiss an action for failure to state a

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claim upon which relief can be granted pursuant to Federal Rule of

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Civil Procedure 12(b)(6).

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court must accept the allegations in the complaint as true and draw

In considering a motion to dismiss, the

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all reasonable inferences in favor of the plaintiff.

Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by

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Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319,

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322 (1972).

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are not entitled to the assumption of truth.

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129 S. Ct. 1937, 1950 (2009), (citing Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 (2007)).

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dismiss, a plaintiff needs to plead “enough facts to state a claim

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to relief that is plausible on its face.”

Assertions that are mere “legal conclusions,” however,
Ashcroft v. Iqbal,

To survive a motion to

Twombly, 550 U.S. at

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570.

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claim supportable by a cognizable legal theory.

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Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).

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Dismissal is appropriate where the plaintiff fails to state a
Balistreri v.

Upon granting a motion to dismiss for failure to state a

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claim, the court has discretion to allow leave to amend the

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complaint pursuant to Federal Rule of Civil Procedure 15(a).

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“Dismissal with prejudice and without leave to amend is not

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appropriate unless it is clear . . . that the complaint could not

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be saved by amendment.”

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316 F.3d 1048, 1052 (9th Cir. 2003).

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B.

Eminence Capital, L.L.C. v. Aspeon, Inc.,

Claims for Relief
1.

Strict Liability, First Claim for Relief

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The FAC alleges that Defendants designed, researched,

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formulated, tested, inspected, manufactured, produced, created,

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assembled, prepared, packaged, labeled, supplied, distributed,

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marketed, and/or sold the femoral stem product in a defective and

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dangerous condition.

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product was defective and dangerous because it did not perform as

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anticipated and broke into pieces.

Am. Compl., ¶ 17.

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Id.

The FAC alleges that the

Plaintiff alleges that he

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sustained both physical and emotional injury, incurred medical

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expenses, and was unable to work in his usual occupation.

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Compl., ¶¶ 19-21.

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state a claim because they do not differentiate between Stryker,

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Howmedica and Stryker Sales Corporation (not a party to this

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motion) and they fail to state how the product is defective.

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Further, to the extent that Plaintiff is attempting to assert a

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design defect claim, Defendants contend that such a claim is

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unavailable against manufacturers of medical implant devices.

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Am.

Defendants argue that these allegations fail to

California recognizes three theories of product liability:

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design defect, manufacturing defect, and failure to warn.

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v. Endocare, 2004 WL 5237598 at *3 (C.D. Cal. Nov. 8, 2004).

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first claim in the FAC is captioned “strict liability” and does not

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indicate if Plaintiff is attempting to bring a products liability

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claim for design defect, manufacturing defect, or both.

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Yalter
The

Accordingly, the Court will discuss both the design defect and

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manufacturing defect theories.

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allegations of failure to warn, accordingly it does not appear that

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the “strict liability” claim is based on a failure to warn theory.

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The FAC does not contain any

Under the manufacturing defect theory, generally a

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manufacturing or production defect is readily identifiable because

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a defective product is one that differs from the manufacturer’s

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intended result or from other ostensibly identical units of the

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same product line.

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1154 (E.D. Cal. 2010) (internal citations omitted).

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manufacturing defect theory posits that a suitable design is in

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place, but that the manufacturing process has in some way deviated

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from that design.

Lucas v. City of Visalia, 726 F.Supp.2d 1149,

Id.
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The

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California law prohibits strict liability claims for design

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defect against manufacturers of prescription implantable medical

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devices.

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(holding that a manufacturer is not strictly liable for injuries

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caused by an implanted prescription medical product which has been

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(1) properly made and (2) distributed with information regarding

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risks and dangers of which the manufacturer knew or should have

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known at the time); Rhynes v. Stryker Corp., 2011 WL 2149095 (N.D.

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Cal. May 31, 2011) (striking medical implant strict liability

See e.g. Hufft v. Horowitz, 4 Cal.App.4th 8,19-20(1992)

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design defect allegations because the barred by California law),

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Adams v. I-Flow Corp., 2010 WL 1339948, *8 (C.D. Cal. Mar. 30,2010)

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(same).

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rule does not apply to the implanted medical device at issue in

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this case, because it is not alleged to be inherently dangerous.

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However, given the bright line rule set forth in Hufft and

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recognized by California courts and federal courts, Plaintiff’s

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argument is not persuasive.

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Plaintiff argues, without citation to authority, that this

Here, the allegations of the FAC are simply too vague and

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conclusory to state a claim for strict products liability.

To the

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extent that Plaintiff’s claim rests on the manufacturing defect

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theory, the FAC does not contain allegations of how the femoral

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stem product deviated from the manufacturer’s original design or

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from other seemingly identical models.

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To the extent that Plaintiff’s claim rests on the design defect

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theory, such a claim is prohibited under California law.

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Rhynes, supra.

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failure to warn, Plaintiff’s strict liability claim cannot rest on

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that theory.

See Lucas, supra, at 1155.

See

Finally, since no facts are alleged regarding

Accordingly, the strict liability claim is dismissed,
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with leave to amend to state a claim for manufacturing defect.
2.

Negligence, Second Claim for Relief

The FAC alleges that Defendants negligently designed,

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researched, formulated, tested, inspected, manufactured, produced,

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created, assembled, prepared, packaged, labeled, supplied,

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distributed, marketed, and/or sold the femoral stem product, so

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that the product failed.

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Defendants’ negligence resulted in the product not being fit for

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its intended use.

Id.

Am. Compl. ¶ 25.

The FAC alleges that

Plaintiff alleges he suffered injury,

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incurred medical expenses, and was unable to attend to his usual

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occupation, due to Defendants’ negligence.

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Am. Compl. ¶¶ 26-28.

As Plaintiff noted in his opposition to the motion to dismiss,

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Defendants did not address the negligence claim.

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Defendants’ Reply brief asserts that “Defendants have moved to

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dismiss Plaintiff’s entire product liability claim, in other words,

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his entire complaint (which includes the strict liability,

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negligence and warranty claims), based on the failure to meet the

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requisite pleading standards,” Reply, p. 3, the motion to dismiss

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does not discuss the negligence claim.

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not set forth the elements that must be plead to state a claim for

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negligence, does not argue how the allegations of the FAC fail to

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plead the necessary elements, and does not set forth any other

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theory for dismissal of the negligence claim.

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motion to dismiss the negligence claim is DENIED.

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3.

Though

The motion to dismiss does

Accordingly, the

Breach of Warranty, Third Claim for Relief

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The FAC alleges that Defendants expressly and impliedly

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warranted and/or represented to Plaintiff’s physician and to

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Plaintiff, that the femoral stem product was of superior quality
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and would last for Plaintiff’s lifetime, Am. Compl., ¶ 13, that the

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product was of good and merchantable quality, and that the product

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was fit and safe for its ordinary, intended use, Am. Compl., ¶ 31,

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including the use for which it was used in Plaintiff.

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However, the FAC alleges that the product was defective; therefore,

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it did not conform to Defendants’ warranties and/or

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representations.

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Plaintiff does not state a claim for breach of warranty because of

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a lack of privity between Plaintiff and Defendants.

Am. Compl., ¶ 32.

Id.

Defendants argue that

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To plead a cause of action for breach of express warranty, one

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must allege the exact terms of the warranty, plaintiff’s reasonable

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reliance thereon, and a breach which proximately caused plaintiff

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injury.

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142 (1986).

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an action for breach of either express or implied warranty, and

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there is no privity between the original seller and a subsequent

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purchaser who is in no way a party to the original sale.

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Electronics, Inc. v. M-B-W-, Inc., 64 Cal.App.4th 717, 725 (1998)

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(citing cases).

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patient lacks the privity required to establish a claim for breach

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of implied warranty.

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Cal.App.4th 1039, 1058-59 (2008).

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at *4 (dismissing breach of warranty claim with prejudice, because

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the complaint was devoid of facts suggesting that plaintiffs relied

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upon anything other than their physician’s skill and judgment in

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selecting and prescribing the anesthetics and pain pumps); Evraets

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v. Intermedics Intraocular, Inc., 29 Cal.App.4th 779,788 (1994)

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(same).

Williams v. Beechnut Nutrition Corp., 185 Cal.App.3d 135,
As a general rule, privity of contract is required in

All West

In the implantable medical product context, a

Blanco v. Baxter Healthcare Corp., 158

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See also Adams, 2010 WL 1339948

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Here, Plaintiff’s vague allegations that unidentified

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“Defendants” made unspecified “representations” to Plaintiff,

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Plaintiff’s parents and Plaintiff’s physician are insufficient to

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state a claim for breach of warranty.

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of allegations that Plaintiff relied on the representations that

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were allegedly made.

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the FAC alleges that the product was surgically inserted in a

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hospital, the Court cannot plausibly infer from the FAC that

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Plaintiff relied on anything other than his physician’s skill and

Moreover, the FAC is devoid

Because this is a medical implant case, and

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judgment in selecting the femoral stem product, nor that any

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purchase of the product was based on a warranty from the

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manufacturer to Plaintiff.

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Court cannot plausibly infer that there is a relationship between

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the Defendants and Plaintiff that would allow Plaintiff to state a

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breach of warranty claim.

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warranty claim is DISMISSED, WITH PREJUDICE.

See Adams, 2010 WL 1339948 at *4.

See Id.

The

Accordingly, the breach of

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III. ORDER
Defendants’ motion to dismiss the FAC is GRANTED in part and
DENIED in part, as set forth below:
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The motion to dismiss the first claim for relief for

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strict liability is GRANTED. The allegations of design defect are

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dismissed, with prejudice.

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allegations of manufacturing defect.

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2.

Plaintiff is given leave to amend the

The motion to dismiss the second claim for relief for

negligence is DENIED.
3.

The motion to dismiss the third claim for relief for

breach of warranty is GRANTED. The breach of warranty claim is
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dismissed, with prejudice.
Plaintiff is ordered to file a Second Amended Complaint within
twenty-one (21) days of the date of this order.
IT IS SO ORDERED.
Dated: October 12, 2011

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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