Rhynes et al v. Stryker Corporation et al

Filing 26

ORDER by Judge Samuel Conti granting 14 Motion to Dismiss (sclc2, COURT STAFF) (Filed on 5/31/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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GLORIA RHYNES, individually and
on behalf of the General Public,
and DARRELL JENKINS,

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Plaintiffs,

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United States District Court

For the Northern District of California

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v.

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STRYKER CORPORATION; STRYKER
ORTHOPEDICS; and DOES 1 through
30, inclusive,
Defendants.

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Case No. 10-5619 SC
ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS AND MOTION
TO STRIKE

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I.

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INTRODUCTION
Before the Court is a combined Motion to Dismiss and Motion to

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Strike filed by Defendants Stryker Corporation and Stryker

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Orthopedics ("Defendants" or "Stryker").

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Motion is fully briefed.

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Pursuant to Civil Local Rule 7-1(b), the Court finds the Motion

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suitable for determination without oral argument.

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stated below, the Court GRANTS Stryker's Motion.

ECF No. 14 ("Mot.").

The

ECF No. 21 ("Opp'n"), 22 ("Reply").

For the reasons

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II.

BACKGROUND

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This action concerns alleged defects in a medical device known

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as a Trident acetabular shell ("the prosthesis") that was allegedly

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implanted in Plaintiff Gloria Rhynes ("Rhynes") as part of hip

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replacement surgery in August 2005.1

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Ex. A ("Compl.") ¶ 5.

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designed the prosthesis, and together with Doe Defendants, marketed

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and sold the prosthesis.

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prosthesis was defective "because, among other things,

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manufacturing contamination, design defects, and manufacturing

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discrepancies caused the loosening of the shell."

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alleges that she was injured by the prosthesis when it was

ECF No. 1 ("Not. of Removal")

Rhynes alleges that Stryker manufactured and

Id. ¶¶ 3-5.

She alleges that the

Id. ¶ 5.

United States District Court

For the Northern District of California

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implanted on August 15, 2005, but that she was unaware of the

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injury until February 2009.

She

Id.

On September 30, 2010, Rhynes and her husband, Plaintiff

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Darrell Jenkins ("Jenkins") (collectively, "Plaintiffs"), filed

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this action in Superior Court for the County of San Francisco.

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Compl.

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defective product; (2) negligence; (3) violation of California

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Business and Professions Code § 17200; and (4) wanton and reckless

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misconduct.

See id.

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consortium.

Id.

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December 10, 2010, on the basis of diversity jurisdiction under 28

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U.S.C. §§ 1332(a)(1) and 1441(a).

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///

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///

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See

Rhynes asserts claims for (1) strict liability for

Jenkins asserts a claim for loss of

Defendants removed the case to this Court on

See Not. of Removal.

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In their Opposition, Plaintiffs state that the prosthesis was
part of a knee replacement, while in their Complaint they allege it
was part of a hip replacement. The Court takes well-pleaded
factual allegations as true when considering a Motion to Dismiss
and will therefore assume the veracity of Plaintiffs' allegation in
the Complaint that the prosthesis was implanted as part of a hip
replacement.
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III. LEGAL STANDARD

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A.

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A motion to dismiss under Federal Rule of Civil Procedure

Motion to Dismiss

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12(b)(6) "tests the legal sufficiency of a claim."

Navarro v.

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Block, 250 F.3d 729, 732 (9th Cir. 2001).

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on the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable legal theory.

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1990).

Dismissal can be based

"When there are well-pleaded factual allegations, a court

United States District Court

For the Northern District of California

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should assume their veracity and then determine whether they

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plausibly give rise to an entitlement to relief."

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Iqbal, 129 S. Ct. 1937, 1950 (2009).

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court must accept as true all of the allegations contained in a

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complaint is inapplicable to legal conclusions.

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recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice."

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(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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complaint need not contain "detailed factual allegations," but it

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must provide more than an "unadorned, the-defendant-unlawfully-

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harmed-me accusation."

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complaint "must be enough to raise a right to relief above the

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speculative level."

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dismiss should be granted if the plaintiff fails to proffer "enough

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facts to . . . nudge[] [its] claims across the line from

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conceivable to plausible."

Id. at 1949.

Ashcroft v.

However, "the tenet that a

Threadbare

Iqbal, 129 S. Ct. at 1950

The allegations in the

Twombly, 550 U.S. at 555.

Thus, a motion to

Id. at 570.

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B.

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Rule 12(f) provides that "[t]he court may strike from a

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Motion to Strike

pleading an insufficient defense or any redundant, immaterial,

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A

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impertinent, or scandalous matter."

Fed. R. Civ. P. 12(f).

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Motions to strike are generally regarded with disfavor.

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County of San Mateo, No. 06-3923, 2007 WL 902551, at *1 (N.D. Cal.

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Mar. 22, 2007).

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to "avoid the expenditure of time and money that must arise from

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litigating spurious issues by dispensing with those issues prior to

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trial."

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1993), rev'd on other grounds, 510 U.S. 517 (1994).

Ganley v.

The essential function of a Rule 12(f) motion is

Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.

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United States District Court

For the Northern District of California

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IV.

DISCUSSION
A.

1.

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Motion to Dismiss
Strict Liability and Negligence Claims

Defendants contend that Rhynes's first claim for strict

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liability and second claim for negligence are barred by the

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applicable statute of limitations because they were not brought

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within two years of the date on which Rhynes was allegedly injured.

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Mot. at 3.

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insufficient facts to state plausible claims for strict liability

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and negligence under Iqbal.

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statute of limitations did not begin to run until Rhynes discovered

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her injury in February 2009 and that they have included sufficient

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facts to withstand a motion to dismiss.

They also contend that Plaintiffs have pleaded

Id. at 3-4.

Plaintiffs argue that the

Reply at 2.

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The California Code of Civil Procedure provides that the

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applicable statute of limitations for a personal injury action is

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two years.

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includes a discovery rule that delays the accrual of a cause of

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action until a plaintiff either became aware of the injury and its

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cause or could have discovered the injury and cause through

Cal. Civ. Proc. Code § 335.1.

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However, California law

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reasonable diligence.

Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.

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4th 797, 808 (2005).

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plaintiff whose complaint shows on its face that his claim would be

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barred without the benefit of the discovery rule must specifically

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plead facts to show (1) the time and manner of discovery and (2)

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the inability to have made earlier discovery despite reasonable

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diligence."

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sufficiency of the allegations of delayed discovery, the court

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places the burden on the plaintiff to show diligence; conclusory

In order to rely on the discovery rule, "a

Id. (internal quotation omitted). "In assessing the

United States District Court

For the Northern District of California

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allegations will not withstand demurrer."

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Id. (internal quotations

omitted).
Here, Rhynes alleges that she was injured by the prosthesis

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when it was implanted during hip surgery on August 15, 2005.

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seeks to rely on the discovery rule because she allegedly did not

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discover the injury until February 2009.

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pleaded specific facts to show the manner in which she discovered

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her injury or her inability to have discovered it earlier.

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she has merely stated in conclusory fashion, "[t]he plaintiff was

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unaware of the injury from the defect until February 2009."

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¶ 5.

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discovery rule under Fox.

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discovery rule, the statute of limitations for Rhynes's first and

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second claims expired on August 15, 2007.

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She

However, Rhynes has not

Rather,

Compl.

Such conclusory allegations do not suffice to invoke the
Absent proper invocation of the

The Court also agrees with Defendants' contention that Rhynes

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has not alleged sufficient facts in support of her first and second

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claims to make the claims plausible under Iqbal.

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Rhynes has not alleged any facts in support of the allegation that

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she was injured by the prosthesis.

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Most notably,

Rather, she alleges only that:

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"plaintiff was injured by the [prosthesis] when it was surgically

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implanted during hip surgery, in that said device has failed to

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perform its intended purpose."

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that design and manufacturing defects "caused the loosening of the

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[prosthesis]."

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how the loosening of the prosthesis has caused her harm.

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pleading deficiency should be easy for Rhynes to cure if she

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chooses to file an amended complaint.

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United States District Court

For the Northern District of California

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Id.

Compl. ¶ 5.

She further alleges

However, she does not allege facts indicating
This

Accordingly, the Court DISMISSES Plaintiff's strict liability
claim and negligence claim WITH LEAVE TO AMEND.
2.

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Third Claim for Violation of California Business and
Professions Code § 17200

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Rhynes's third claim alleges that Stryker and Doe defendants

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violated California's Unfair Competition Law ("UCL") as set forth

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in California Business and Professions Code § 17200 et seq.

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¶¶ 18-28.

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unfair, and fraudulent business practices by, among other things,

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"[p]roviding insufficient, misleading, and deceptive information to

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patients and their doctors" and "concealing the existence of

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patient complaints."

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injunctive relief for this claim.

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Plaintiff (and others) of the amounts retained by said defendants

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for the sale of said defective products."

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injunctive relief "to prevent the continuation of such unfair

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business practices by said defendants, and to require said

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defendants to notify patients and their physicians of the true,

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scientifically based parameters of the quality and efficacy of the

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product."

Compl.

Rhynes alleges that Defendants engaged in unlawful,

Id. ¶ 22.

Rhynes seeks restitution and
She seeks restitution "to

Id.

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Id. ¶ 27.

She seeks

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Stryker argues that Rhynes's UCL claim should be dismissed

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with prejudice because the equitable relief she seeks is

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unavailable as a matter of law.

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relief is only available where there is no adequate remedy at law

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and contends that in this case money damages will provide

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Plaintiffs with an adequate remedy if they prevail on their

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products liability claims.

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is that "[o]bviously, if the claims for damages are dismissed as

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lacking merit, there is no adequate remedy at law."

Stryker notes that equitable

Plaintiff's only argument in response

Opp'n at 3.

United States District Court

For the Northern District of California

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Plaintiffs provide no authority supporting their position.

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Court agrees with Stryker.

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The UCL only provides equitable remedies.

The

Madrid v. Perot

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Systems Corp., 30 Cal. Rptr. 3d 210, 218 (Ct. App. 2005) ("[T]he

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UCL limits the remedies available for UCL violations to restitution

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and injunctive relief.").

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must establish that there is no adequate remedy at law available.

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Philpott v. Super. Ct., 1 Cal. 2d 512, 517 (1934) (holding

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injunctive relief not available where legal remedy was adequate);

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Knox v. Phoenix Leasing, Inc., 29 Cal. App. 4th 1357, 1368 (Ct.

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App. 1994) (holding restitution not available where statute

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provides for money damages).

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extended this principle to actions under the UCL in Prudential Home

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Mortgage Company v. Superior Court, 66 Cal. App. 4th 1236, 1249

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(Ct. App. 1998) (holding that statutory relief under the UCL "is

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subject to fundamental equitable principles, including inadequacy

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of the legal remedy.")

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A plaintiff seeking equitable relief

The California Court of Appeal

The Central District of California has applied this rule to
strike a plaintiff's request for injunctive relief under the UCL in

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a medical device products liability action similar to this one.

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See Adams v. I-Flow Corp., No. CV09-09550, 2010 WL 1339948, at *7

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(C.D. Cal. Mar. 30, 2010) (striking with prejudice plaintiff's

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request for injunction prohibiting pain pump and anesthetic

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manufacturers from false advertising).

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The Court concludes that in this case, as in Adams, the

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compensatory damages Plaintiffs seek provide an adequate remedy at

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law to redress their alleged injuries.

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they will have no adequate remedy at law if their other claims fail

Plaintiffs' argument that

United States District Court

For the Northern District of California

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is unavailing.

Where the claims pleaded by a plaintiff may entitle

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her to an adequate remedy at law, equitable relief is unavailable.

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See, e.g., Adams, 2010 WL 1339948, at *7 ("Should plaintiffs

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ultimately prevail on their claims, they will be adequately

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compensated for their alleged injuries by an award of damages.")

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(emphasis added); Stationary Eng'rs Local 39 Health & Welfare Trust

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Fund v. Philip Morris, Inc., No. C-97-01519, 1998 U.S. Dist. LEXIS

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8302, at *56 (N.D. Cal. Apr. 30, 1998) ("Because plaintiffs may be

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able to state claims for fraud and misrepresentation and negligent

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breach of intentional duty, plaintiffs cannot show that there is no

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adequate remedy at law.")(emphasis added).
Moreover, to the extent that Plaintiffs seek injunctive relief

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on behalf of the general public,2 Plaintiffs' request fails as a

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matter of law.

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seeking relief on behalf of the public must satisfy class action

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pleading requirements.

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The 2004 amendments to the UCL provide that a party

Cal. Bus. & Prof. Code § 17203.

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Plaintiffs do not argue this point in their Opposition. However,
their Complaint alleges that "[a] legal remedy is inadequate to
protect others among the public from being harmed in the future by
such unfair business practices," and they purport to bring their
action "individually and on behalf of the general public." Compl.
at ¶ 27.
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Plaintiffs' Complaint lacks the requisite class allegations.

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Netscape Commc'ns. Corp. v. Fed. Ins. Co., No. 06-00198, 2006 U.S.

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Dist. LEXIS 9569, at *12-13 (N.D. Cal. Feb. 22, 2006).

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Furthermore, even if the Complaint contained the proper class

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allegations, Rhynes would not be entitled to seek injunctive relief

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on behalf of the public because she is not individually entitled to

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such relief.

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(9th Cir. 1999) ("Unless the named plaintiffs are themselves

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entitled to seek injunctive relief, they may not represent a class

United States District Court

For the Northern District of California

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See Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045

seeking that relief.").
Accordingly, the Court DISMISSES Rhynes's third claim for
violations of the UCL WITHOUT LEAVE TO AMEND.
3.

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See

Fourth Claim for Punitive Damages

Rhynes's fourth claim alleges wanton and reckless misconduct.

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The tort of wanton and reckless misconduct occurs when "a person

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with no intent to cause harm intentionally performs an act so

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unreasonable and dangerous that he knows, or should know, it is

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highly probable that harm will result."

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Stores, Inc., 95 Cal. App. 3d 279, 286 (Ct. App. 1979).

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of wanton and reckless misconduct entitles a plaintiff to punitive

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damages, and Plaintiffs therefore seek punitive damages on the

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basis of this claim.

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claim as Plaintiffs' "punitive damages claim."

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Opp'n at 4.

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Compl. at 10.

Nolin v. Nat'l Convenience
A showing

Both parties refer to the
E.g., Mot. at 7;

Stryker moves to dismiss Plaintiffs' punitive damages claim on

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the ground that it is insufficiently pleaded under Twombly and

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Iqbal.

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Rhynes disagrees.

California Civil Code § 3294(a) allows for the recovery of

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punitive damages only where a plaintiff shows the defendant acted

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with malice, oppression, or fraud in connection with the tortious

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conduct at issue.

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(1) conduct which is intended by the defendant to cause injury to

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the plaintiff or (2) "despicable conduct which is carried on by the

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defendant with a willful and conscious disregard of the rights or

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safety of others."

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not allege that Stryker intended to cause injury; rather they

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allege that Stryker engaged in "despicable conduct."

Under § 3294(b), malice is defined as either:

Cal. Civ. Code § 3294(b).

Here, Plaintiffs do

See Compl. ¶¶

United States District Court

For the Northern District of California

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30, 32.

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conduct which is "so vile, base, contemptible, miserable, wretched

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or loathsome that it would be looked down upon and despised by

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ordinary people."

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App. 4th 306, 331 (Ct. App. 1992).

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California courts have defined "despicable conduct" as

See Mock v. Mich. Millers Mut. Ins. Co., 4 Cal.

Thus, in order for Plaintiffs' punitive damages claim to

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survive a motion to dismiss, Plaintiffs must allege sufficient

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facts to state a plausible claim that Stryker engaged in vile,

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base, and contemptible conduct.

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failed to meet this standard.

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Stryker argues that Rhynes has

The Court agrees.

Rhynes accurately summarizes the various allegations that form

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the basis for her punitive damages claim as follows: "Defendants

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knew that their product was defective and could cause injury, and

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not only allowed it to be used in Plaintiff's surgery anyhow --

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through their authorized agents, they promoted the use of their

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product and actively concealed their knowledge of its known

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performance problems."

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Opp'n at 4; See Compl. ¶¶ 22, 29, 30.

The Court finds that Plaintiffs' claim for punitive damages is
devoid of factual support.

Plaintiffs' allegations that Stryker

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"provid[ed] insufficient, misleading and deceptive information" to

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patients and doctors, "fail[ed] to promptly and fairly investigate

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and identify the causes of the design [and manufacturing] defects,"

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"concealed the existence of patient complaints," and was "well

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aware of numerous instances of product failure . . . at the time of

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Plaintiff's surgery" are merely conclusory statements not entitled

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to the presumption of truth under Iqbal and Twombly.

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have alleged no facts that support a plausible inference in support

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of these conclusions.

See Compl. ¶¶ 22, 30.

Plaintiffs

Plaintiffs also

United States District Court

For the Northern District of California

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allege that a Doe Defendant engaged in the distribution of Stryker

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products "was in the operating room and discussed the use of the

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Stryker product with the physicians and concealed information

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regarding the difficulties with the manufacturing processes and the

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design even though problems had been reported many months before."

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Compl. ¶ 5.

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allegations that problems with the product had been reported months

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before and that the individual concealed such information.

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Absent are any alleged facts in support of the

Stryker further contends that Plaintiffs' allegations are

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insufficient to support a punitive damages claim against a

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corporate entity.

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Again, the Court agrees.

California law provides that an employer may be liable for

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punitive damages in an action arising from the tortious conduct of

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its employee in three situations: "(1) when an employee was guilty

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of oppression, fraud or malice, and the employer with advance

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knowledge of the unfitness of the employee employed him or her with

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a conscious disregard of the rights or safety of others; (2) when

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an employee was guilty of oppression, fraud or malice, and the

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employer authorized or ratified the wrongful conduct; or (3) when

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1

the employer was itself guilty of the oppression, fraud or malice."

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Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128, 1151 (Ct. App.

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1998).

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knowledge and conscious disregard, authorization, ratification or

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act of oppression, fraud, or malice must be on the part of an

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officer, director, or managing agent of the corporation.

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Civ. Code § 3294(b).3

For corporate employers, such as Stryker, the advance

See Cal.

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Rhynes contends that paragraph thirty-one of the Complaint

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contains sufficient allegations to support an award of punitive

United States District Court

For the Northern District of California

10

damages against Stryker.

That paragraph states:

[The acts giving rise to punitive damages] were
either the acts of an officer, director, or
managing agent of said defendants, or said acts
were those of an employee of said defendants
under circumstances where said defendants had
advance knowledge of the unfitness of the
employee and employed him or her with a
conscious disregard of the rights and safety of
others, or authorized or ratified the wrongful
conduct as herein alleged.

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Compl. ¶ 31.
These conclusory allegations of authorization or ratification

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19

fail to satisfy federal pleading standards.

Plaintiffs have not

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alleged a single fact tending to show that any officer, director,

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or managing agent took any action amounting to authorization or

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ratification of the alleged misconduct or had knowledge of the

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Cal. Civ. Code § 3294(b) states: "An employer shall not be liable
for [punitive damages], based upon acts of an employee of the
employer, unless the employer had advance knowledge of the
unfitness of the employee and employed him or her with a conscious
disregard of the rights or safety of others or authorized or
ratified the wrongful conduct for which the damages are awarded or
was personally guilty of oppression, fraud, or malice. With respect
to a corporate employer, the advance knowledge and conscious
disregard, authorization, ratification or act of oppression, fraud,
or malice must be on the part of an officer, director, or managing
agent of the corporation."
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unfitness of any employee.

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language of § 3294(b)'s corporate ratification provisions.

3

Iqbal, threadbare recitals of statutory elements are insufficient

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to withstand a motion to dismiss.

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Kelley v. Corr. Corp. of Am., 750 F. Supp. 2d 1132, 1145-48 (E.D.

6

Cal. 2010) (finding similar language insufficient to state a claim

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for punitive damages under Twombly and Iqbal standard).

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9

Paragraph 31 merely parrots the

129 S. Ct. at 1950.

Under

See also

Accordingly, Stryker's Motion to Dismiss Rhynes's fourth claim
for punitive damages is GRANTED WITH LEAVE TO AMEND.

United States District Court

For the Northern District of California

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B.

Motion to Strike

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Stryker asks the Court to strike Plaintiffs' strict liability

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design defect allegations.

As Stryker notes, controlling

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California law unequivocally prohibits strict liability claims for

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design defect against manufacturers of prescription implantable

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medical devices.

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(1988) ("[A] drug manufacturer's liability for a defectively

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designed drug shall not be measured by the standards of strict

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liability."); Hufft v. Horowitz, 4 Cal. App. 4th 8, 19-20 (Ct. App.

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1992) ("[T]he rule of Brown . . . immunizing manufacturers of

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prescription drugs from strict liability for design defects, should

21

be extended to manufacturers of implanted prescription medical

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devices."); Artiglio v. Super. Ct., 22 Cal. App. 4th 1388, 1395

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(Ct. App. 1994) (applying Hufft to hold that manufacturer of breast

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implants was immune from strict liability for design defects).

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Artiglio, the court expressly held that this determination can be

26

made as a matter of law without the need for fact-finding, except

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for the sole factual determination that the device at issue is

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physician-directed and physician-applied (i.e., a "prescribed

See Brown v. Super. Ct., 44 Cal. 3d 1049, 1061

13

In

1

device").

22 Cal. App. 4th at 1397.

Here, it is undisputed that

2

Rhynes's hip implant prosthesis was obtained through a physician

3

and qualifies as a prescribed device.

4

Plaintiffs argue that Hufft limited immunity to cases where

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the product has been properly made and distributed with adequate

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warnings of potential risks.

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Hufft stating: "We hold that a manufacturer is not strictly liable

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for injuries caused by an implanted prescription medical product

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which has been (1) properly made and (2) distributed with

Opp'n at 5.

They rely on language in

United States District Court

For the Northern District of California

10

information regarding risks and dangers of which the manufacturer

11

knew or should have known at the time."

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They argue that because the instant Complaint contains

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manufacturing defect and improper warning allegations Stryker is

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not immune from strict liability for design defects.

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4 Cal. App. 4th at 20.

Opp'n at 5.

Plaintiffs misconstrue the quoted language from Hufft to

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suggest that a manufacturer is only immune from strict liability

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for defective design if there are no allegations of manufacturing

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defects or inadequate warning labels.

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rest of Hufft makes clear, this statement means that a manufacturer

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of prescription medical devices can be held strictly liable only

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for manufacturing defects or inadequate warnings -- it may not be

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held strictly liable for design defects.

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were allegations of manufacturing defects and improper warnings;

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indeed, the court reversed the grant of summary judgment in favor

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of the manufacturer because triable issues of fact existed as to

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the adequacy of the warnings provided.

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28

Properly read, and as the

In Hufft, as here, there

Id. at 23.

California law categorically protects manufacturers of
prescription medical devices from strict liability for design

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1

defects.

Striking Plaintiff's strict liability design defect

2

allegations would therefore serve the general purpose of Rule 12(f)

3

by "avoid[ing] the expenditure of time and money that must arise

4

from litigating spurious issues by dispensing with those issues

5

prior to trial."

6

Court GRANTS Stryker's motion to strike Plaintiff's strict

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liability design defect allegations.

Fogerty, 984 F.2d at 1527.

Accordingly, the

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V.

CONCLUSION

United States District Court

For the Northern District of California

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For the reasons stated above, the Court GRANTS Defendant

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Stryker's Motion and DISMISSES Plaintiffs Gloria Rhynes and Darrell

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Jenkins's first, second, and fourth claims WITH LEAVE TO AMEND.

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The Court DISMISSES Plaintiffs' third claim WITHOUT LEAVE TO AMEND.

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The Court STRIKES Plaintiffs' strict liability design defect

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allegations WITHOUT LEAVE TO AMEND.

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If Plaintiff chooses to file an amended complaint, it shall be

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filed within thirty (30) days of this Order.

Failure to do so will

18

result in dismissal of the above claims in their entirety.

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IT IS SO ORDERED.

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Dated: May 31, 2011
UNITED STATES DISTRICT JUDGE

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