Anderson et al v. Merck & Co., Inc. et al
Filing
21
ORDER GRANTING, IN PART, AND DENYING, IN PART, 17 Motion to Dismiss. Amended Pleadings due by 12/12/2022. Responsive Pleading due by 1/6/2023. Signed by Judge Jeffrey S. White on November 21, 2022. (jswlc2, COURT STAFF) (Filed on 11/21/2022)
Case 4:22-cv-02991-JSW Document 21 Filed 11/21/22 Page 1 of 11
1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
7
AMY ANDERSON,
Plaintiff,
8
MERCK & CO., INC., et al.,
Re: Dkt. No. 17
Defendants.
11
United States District Court
Northern District of California
ORDER GRANTING, IN PART, AND
DENYING, IN PART, MOTION TO
DISMISS, WITH LEAVE TO AMEND
v.
9
10
Case No. 22-cv-02991-JSW
12
Now before the Court for consideration is the motion to dismiss filed by Defendants Merck
13
14
& Co., Inc., Merck Sharp & Dohme Corp., Organon & Co., and Organon, LLC (“Defendants”).
15
The Court has considered the parties’ papers, relevant legal authority, and the record in this case.
16
For the reasons that follow, the Court GRANTS, IN PART, AND DENIES, IN PART, the motion.
17
BACKGROUND
18
A.
Preliminary Matters.
19
This is one of nine related cases pending before the Court that assert similar claims against
20
Defendants. On October 12, 2022, the Court denied, in part, motions to dismiss filed in several of
21
those cases and concluded it had specific jurisdiction over Defendants. See Rosewolf v. Merck &
22
Co., Inc., No. 22-cv-02072-JSW, 2022 WL 7127953 (N.D. Cal. Oct. 12, 2022) (“Rosewolf II”).
23
Defendants state they move pursuant to Federal Rule of Civil Procedure 12(b)(2) to preserve their
24
argument that the Court lacks personal jurisdiction over them but did not repeat their argument
25
from earlier briefs. There are no material differences between the facts in this case and the facts in
26
Rosewolf II, and for the reasons cited therein, the Court DENIES Defendants’ motion to dismiss
27
for lack of personal jurisdiction. 2022 WL 7127953, at *2-5.
28
1
United States District Court
Northern District of California
Case 4:22-cv-02991-JSW Document 21 Filed 11/21/22 Page 2 of 11
1
In her opposition, Plaintiff Amy Anderson (“Anderson”) conceded that her first claim for
2
relief (strict liability – design defect) should be dismissed. She also conceded that her negligence
3
claim should be dismissed, in part, to the extent it is premised on a manufacturing defect. (Opp.
4
Br. at 5:26-6:3.) Pursuant to Anderson’s voluntary dismissal, those claims are dismissed.
5
B.
Factual Background.
6
Defendants manufacture and sell the brand-name drug “Singulair” and held patent rights in
7
montelukast, Singulair’s active ingredient, until the patent expired in August 2012. (Dkt. No. 1-1,
8
Declaration of Julia Romano, ¶ 3 Ex. 1, Compl. ¶¶ 2, 29.) After the patent expired, other
9
companies began to manufacture and sell generic monteluskat. (Id. ¶ 88.) Anderson alleges that
10
monteluskat can cause neuropsychiatric injury by crossing the blood-brain-barriers. According to
11
Anderson, Defendants knew monteluskat could cause these types of injuries but failed to warn of
12
those risks and failed to maintain the accuracy and adequacy of Singulair’s warning label. (Id. ¶¶
13
34-87.) Anderson also alleges that Defendants “engaged in an extensive campaign to educate
14
physicians in California about the alleged benefits of Singulair” but misrepresented its safety in
15
that campaign. (Id. ¶ 21.)
On March 4, 2020, the Food and Drug Administration (“FDA”) required Defendants to add
16
17
a Black Box Warning to Singulair’s label and required a new medication guide. That warning
18
stated:
19
20
21
22
23
24
25
26
27
28
Serious neuropsychiatric events have been reported in patients
taking Singulair. These include:
agitation, aggressive behavior or hostility, anxiousness, depression,
disorientation, disturbance in attention, dream abnormalities,
dysphagia (stuttering), hallucinations, insomnia, irritability, memory
impairment, obsessive-compulsive symptoms, restlessness,
somnambulism, suicidal thoughts and behavior (including suicide),
tic, and tremor …
Psychiatric disorders: agitation including aggressive behavior or
hostility, anxiousness, depression, disorientation, dream
abnormalities, hallucinations, insomnia, irritability, restlessness,
somnambulism, suicidal thinking and behavior (including suicide),
tremor [see Warnings and Precautions (5.4)].
(Compl., ¶ 4 (emphasis in original)).
The warning also states that “the benefits of Singulair may not outweigh the risks,” and the
2
Case 4:22-cv-02991-JSW Document 21 Filed 11/21/22 Page 3 of 11
1
FDA noted in a press release that “many patients and health care professionals are not fully aware
2
of these risks.” (Id., ¶¶ 4, 6.) Anderson alleges that if she or her physician had known that
3
Singulair “could cause [her] to suffer neuropsychiatric events, [the physician] would not have
4
prescribed Singulair,” and she would not have ingested it. (Id. ¶¶ 8, 12, 87.)
Anderson also alleges that:
5
6
[w]ithin the period of any applicable statute of limitations, [she]
could not have discovered through the exercise of reasonable
diligence that Singulair caused a significantly increased risk of
adverse neuropsychiatric events.
7
8
[She] did not discover, and did not know of, facts that would have
caused a reasonable person to suspect that [her] injuries were caused
by Defendants’ concealment and suppression of the fact that
individuals who ingested Singulair were at significantly increased
risk of developing neuropsychiatric events.
9
10
United States District Court
Northern District of California
11
[She] could not have reasonably discovered the true extent of
Defendants’ deception or suppression about Singulair’s safety until
the FDA required the Boxed Warning about the serious mental
health side effects for Singulair and the advisement on the restriction
of use of Singulair.
12
13
14
15
(Id. ¶¶ 95-96.)
Based on these and other allegations that the Court will address as necessary, Anderson
16
17
asserts claims for: (1) strict liability – failure to warn; (2) negligence; (3) negligent
18
misrepresentation; (4) breach of express warranty; and (5) breach of implied warranty.
ANALYSIS
19
20
21
A.
Applicable Legal Standards.
When a defendant moves to dismiss for failure to state a claim under Federal Rule of Civil
22
Procedure 12(b)(6), the Court’s inquiry generally “is limited to the allegations in the complaint,
23
which are accepted as true and construed in the light most favorable to the plaintiff.” Lazy Y
24
Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Even under the liberal pleading
25
standard of Federal Rule of Civil Procedure 8(a)(2), “a plaintiff’s obligation to provide the
26
‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
27
formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,
28
550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
3
Case 4:22-cv-02991-JSW Document 21 Filed 11/21/22 Page 4 of 11
Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but
1
2
must instead allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
3
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
4
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
5
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
If the allegations are insufficient to state a claim, a court should grant leave to amend,
6
7
unless amendment would be futile. See, e.g., Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th
8
Cir. 1990); Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th
9
Cir. 1990).
10
United States District Court
Northern District of California
11
B.
Anderson Fails to Plead the Statute of Limitations Should be Tolled.
Defendants argue Anderson’s claims are barred by the statute of limitations and that she
12
fails to allege the limitations period should be tolled. “If the running of the statute is apparent on
13
the face of the complaint, the defense may be raised by a motion to dismiss.” Jablon v. Dean
14
Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). A court can grant a motion to dismiss on this
15
basis “only if the assertions of the complaint, read with the required liberality, would not permit
16
the plaintiff to prove that the statute was tolled.” Id.
17
Defendants raised the same argument with respect to Plaintiff Rosewolf, and the Court
18
granted Defendants’ motion, with leave to amend. Rosewolf v. Merck & Co., Inc., No. 22-cv-
19
2072-JSW, 2022 WL 3372101, at *3-4 (N.D. Cal. Aug. 16, 2022) (“Rosewolf I”). Anderson
20
alleges that she was prescribed Singulair between 2000 and 2020, and that “many or all” of her
21
prescriptions were filled with branded Singulair, although she acknowledges some prescriptions
22
may have been filed with generic Singulair. She also alleges the drug caused her to suffer
23
neuropsychiatric events including depression, anxiety, panic disorder, stuttering, tics, and self-
24
harm. (Compl. ¶ 8.) “[A] cause of action accrues at ‘the time when the cause of action is
25
complete with all of its elements.’” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 806
26
(2005) (quoting Norgart v. Upjohn Co., 21 Cal. 4th 383, 397, (1999)). Anderson originally filed
27
her complaint with two other named plaintiffs on March 4, 2022.
28
Anderson has not challenged Defendants’ argument that a two-year statute of limitations
4
Case 4:22-cv-02991-JSW Document 21 Filed 11/21/22 Page 5 of 11
1
would be applicable to her claims and does not dispute that her claims would be barred unless the
2
discovery rule applies. That rule delays accrual of a claim until “a plaintiff discovers or has reason
3
to discover a cause of action,” i.e. when they have a “reason at least to suspect a factual basis for
4
its elements.” Id. at 807; see also Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1111 (1988) (a
5
plaintiff will have reason to know of a claim when they have “notice or information of
6
circumstances to put a reasonable person on inquiry”). In order to successfully plead tolling based
7
on the discovery rule, Anderson must allege facts that show (1) how and when she discovered
8
facts supporting the claim and (2) despite being reasonably diligent, she could not discover those
9
facts earlier. Fox, 35 Cal. 4th at 808.
United States District Court
Northern District of California
10
Anderson acknowledges that Singulair’s label included warnings about neuropsychiatric
11
events before 2020, although she alleges the warnings should have been stronger. (See, e.g.,
12
Compl. ¶¶ 56, 61, 63, 66-67, 71-73.) Anderson alleges that she was put on notice of her claims
13
only when the FDA issued the Black Box warning on March 3, 2020. (Id. ¶ 97.) If that is the date
14
her claims actually accrued, her claims would be timely. Anderson alleges she took Singulair – or
15
its generic equivalent – until 2020, which distinguishes the facts here from the facts in Rosewolf I,
16
where there was a twelve year gap between the date the plaintiff last used the drug and the date the
17
Black Box warning was issued. However, like the plaintiff in Rosewolf I, Anderson alleges she
18
became symptomatic while ingesting Singulair.
19
Although Anderson provides no details about when her symptoms began, Defendants
20
argue that because she uses the “®” mark following Singulair, she must have become
21
symptomatic at some point between 2000 and 2012, when the only form of Singulair available
22
was the branded version of the drug. The Court concludes it is reasonable to infer that Anderson’s
23
claims accrued at some point prior to March 4, 2020, a conclusion supported by the fact that
24
Anderson expressly alleges the statute of limitations should be tolled.
25
Like the plaintiff in Rosewolf I, Anderson includes no facts to show when or how she
26
learned about the Black Box label. She also not include any factual allegations about what she did
27
prior to March 3, 2020 to investigate her symptoms. See, e.g., Rosewolf I, 2022 WL *3 (citing
28
Darringer v. Intuitive Surgical, Inc., No. 15-cv-00300-RMW, 2015 WL 6735333, at *2 (N.D. Cal.
5
United States District Court
Northern District of California
Case 4:22-cv-02991-JSW Document 21 Filed 11/21/22 Page 6 of 11
1
Nov. 4, 2015)). Anderson relies, in part, on Martin v. Medtronic, Inc, No. 15-cv-00994-DAD-
2
MJS, 2017 WL 825410, at *14 (E.D. Cal. Feb. 24, 2017) (citing Retger v. Stryker Corp., 607 Fed.
3
Appx. 732, 733 (9th Cir. 2015)). In that case, the plaintiff alleged he was injured by defendant’s
4
medical device. The plaintiff also alleged he received medical treatment for those injuries and
5
alleged he relied on his doctor to inform him of the cause of the injury. The court concluded those
6
allegations were sufficient to plead reasonable diligence. Id. Anderson argues that, like the
7
plaintiff in Martin, she relied on her doctor to inform her of the causes of the symptoms he
8
experienced and argues that neither she nor her physician were aware of the dangers Singulair
9
posed.
10
With the exception of the year she stopped taking Singulair, Anderson’s allegations are
11
identical to the allegations in Rosewolf I. For the reasons articulated in that opinion, the Court
12
finds Anderson’s reliance on Martin and Eidson v. Medtronic, Inc. 40 F. Supp. 3d 1202 (N.D. Cal.
13
2014) unpersuasive. Rosewolf I, 2022 WL 3372101, at *3. Finally, “a plaintiff is ‘charged with
14
presumptive knowledge of an injury if they have information of circumstances to put [them] on
15
inquiry or if they have the opportunity to obtain knowledge from sources open to [their]
16
supervision.’” Id. (quoting Fox, 35 Cal. 4th at 807-08 (internal quotation marks omitted)).
17
Anderson includes information about Singulair’s earlier warning labels and also describes studies
18
regarding the potential for neuropsychiatric events. Like Rosewolf, she fails to allege why that
19
information would not have put her on inquiry notice of her claim. That is, she fails to provide
20
facts to support her assertion that despite being reasonably diligent, she could not have discovered
21
the facts giving rise to her claims earlier. Fox, 35 Cal. 4th at 808.
Accordingly, the Court concludes that Anderson’s allegations are insufficient to plead
22
23
around the statute of limitations, and it GRANTS Defendants’ motion to dismiss.
24
C.
25
26
27
The Court Cannot Conclude On this Record That Anderson’s Negligence Claim Is
Preempted.
Defendants also argue that Anderson’s negligence claim is preempted. In light of the other
pending cases and in order to evaluate whether it would be futile to grant Anderson leave to
28
6
Case 4:22-cv-02991-JSW Document 21 Filed 11/21/22 Page 7 of 11
1
amend, the Court addresses this argument.1 The Supremacy Clause provides that federal law is
2
“the supreme Law of the Land ..., any Thing in the Constitution or Laws of any State to the
3
Contrary notwithstanding.” U.S. Const. art. VI cl. 2. Therefore, “state laws that conflict with
4
federal law are without effect.” Mut. Pharm. Co., Inc. v. Bartlett, 570 U.S. 472, 479-80 (2013)
5
(internal quotation and citation omitted) (“Bartlett”); see also PLIVA, Inc. v. Mensing, 564 U.S.
6
604, 617 (2011) (“[W]here state and federal law directly conflict, state law must give way.”)
7
(“Mensing”). Defendants argue it is impossible for them to comply with “both state and federal
8
law requirements.” Id. The Supreme Court has addressed the “demanding defense” of
9
impossibility preemption in the context of prescription drugs in a trio of cases beginning with
10
Wyeth v. Levine, 555 U.S. 555, 573 (2009).
In Wyeth, the Court held that a state law failure-to-warn claim against the manufacturer of
United States District Court
Northern District of California
11
12
a brand-name drug was not preempted because the defendant could modify its labelling without
13
FDA approval. 555 U.S. at 568. The Court addressed the possibility that the FDA could have
14
rejected a proposed change. It concluded, however, that it was not impossible for the defendant to
15
comply with federal and state law “absent clear evidence that the FDA would not have approved a
16
change to [the] label,” which the defendant had not produced. Id. at 573.2
In Mensing, the Court held that state law tort claims against generic drug manufacturers
17
18
based on a failure-to-warn theory were preempted because it was impossible for the generic
19
manufacturers to comply with state laws, which required them to strengthen warnings on labels,
20
and to comply with federal law, which precluded them from doing so. 564 U.S. at 624. The
21
plaintiffs argued that the generic manufacturers could have asked for the FDA’s assistance in
22
23
24
25
26
27
28
1
Anderson argues that discovery is necessary before the Court rules on this issue because
“neither party is in a position to determine whether” her injuries were caused by branded Singulair
or its generic equivalent. The Court is not persuaded, and it evaluates the allegations as drafted to
determine whether Anderson pleaded herself out of a claim.
2
The Supreme Court subsequently held that “the question of pre-emption is one for a judge
to decide, not a jury” and that “‘clear evidence’ is evidence that shows the court that the drug
manufacturer fully informed the FDA of the justifications for the warning required by state law
and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a
change to the drug’s label to include that warning.” Merck Sharpe & Dohme Corp. v. Albrecht, -U.S. --, 139 S.Ct. 1668, 1672 (2019).
7
United States District Court
Northern District of California
Case 4:22-cv-02991-JSW Document 21 Filed 11/21/22 Page 8 of 11
1
getting the brand-name manufacturer to change the label. Id. at 620. The Court, however,
2
rejected that argument and explained that the “question for ‘impossibility’ is whether the private
3
party could independently do under federal law what state law requires of it.” 564 U.S. at 620.
4
Citing several other examples of asking a third-party to intervene to take action that would enable
5
them to comply with state law, the Court concluded that if it accepted the plaintiffs’ argument, it
6
would render conflict preemption illusory. Id. at 620-21.
7
Finally, in Bartlett, the Supreme Court held that design defect claims against a generic
8
drug manufacturer were preempted because the only way for the manufacturer to comply with
9
state law would be to alter the label on its drug, which federal law precluded. 570 U.S. at 480,
10
486-87. The Court also rejected the reasoning by the Court of Appeals that the manufacturer
11
could have complied with both laws by choosing not to sell the drug at all. It reasoned that a
12
“stop-selling rationale [was] incompatible with [its] preemption jurisprudence,” which
13
“presume[s] that an actor seeking to satisfy both his federal and state-law obligations is not
14
required to cease acting altogether in order to avoid liability.” Id. at 488.
15
Anderson acknowledges that after the FDA approved Singulair, the Merck Defendants
16
could not unilaterally alter the drug’s design, but she argues her claims are based on what
17
Defendants could have done prior to FDA approval. Defendants argue the Court should follow
18
Yates v. Ortho-McNeil-Janssen Pharmaceuticals, which concluded pre-approval claims would be
19
preempted. 808 F.3d 281, 293 (6th Cir. 2015). To date, the Sixth Circuit remains the only Circuit
20
to have addressed this issue.
21
In Yates, the plaintiff suffered a stroke after using defendants’ brand-name contraceptive
22
drug and brought a strict liability design defect claim under New York law. Id. at 286.
23
Defendants moved for summary judgment and argued the claim was preempted. That court
24
rejected the argument that Bartlett and Mensing “extend[ed] to all design defect claims for both
25
generic and brand-name drug manufacturer[s.]” Id. at 296. Rather, it recognized that “the federal
26
statutes and regulations for brand-name and generic drugs are sometimes different” and that
27
“brand-name and generic drugs may face different impossibility preemption results in some
28
circumstances.” Id. at 297.
8
Case 4:22-cv-02991-JSW Document 21 Filed 11/21/22 Page 9 of 11
United States District Court
Northern District of California
1
The court then examined the defendants’ duties under state law, which provided that a
2
design defect existed when the product “was not reasonably safe because there was a substantial
3
likelihood of harm and it was feasible to design the product in a safer manner.” Id. at 297. Thus,
4
state law allowed the defendants to avoid liability by choosing a safer design for the drug. Id.
5
Second, it examined the duties imposed by federal law and agreed that federal law would not have
6
precluded the defendants from creating and submitting a safer design to the FDA for approval. Id.
7
at 299. However, the court found the plaintiff’s argument about a pre-approval duty “too
8
attenuated” and reasoned that “Defendants could not have complied with whatever pre-approval
9
duty might exist without ultimately seeking the FDA’s approval prior to marketing” the drug. Id.
10
at 300. The court also concluded that the plaintiff’s argument that the defendant could have
11
designed a safer drug at the outset was analogous to the “stop-selling” argument the Supreme
12
Court rejected in Bartlett. Therefore, the court concluded the plaintiffs’ pre-approval claims were
13
preempted. Id. at 300; see also Evans v. Gilead Scis., Inc., No. 20-cv-00123-DKW-KJM, 2020
14
WL 5189995, at *9 (D. Hawai‘i Aug. 31, 2020) (concluding pre-approval design defect claims
15
preempted under Hawai‘i law and adopting rationale that because defendant would be required to
16
obtain FDA approval before selling drug it could not act “independently” of FDA); Utts v. Bristol-
17
Myers Squibb Co., 226 F. Supp. 3d 166, 185-86 (S.D.N.Y. 2016) (applying similar reasoning to
18
conclude plaintiff’s pre-approval design defect claim under California law, against brand-name
19
manufacturer, was preempted).
20
Anderson argues the Court should decline to follow Yates and follow the reasoning in
21
Holley v. Gilead Sciences, Inc., 379 F. Supp. 3d 809 (N.D. Cal. 2019). See also, e.g., Gaetano v.
22
Gilead Scis., Inc., 529 F. Supp. 3d 333, 342-44 (D.N.J. 2021). In Holley, the plaintiffs (140
23
individuals from 31 states) asserted the defendant’s drug, Truvada, caused bone and kidney
24
damage and alleged the defendant could have, and did, designed a safer version of the drug by
25
using a different ingredient. The defendant raised impossibility preemption as a defense on a
26
motion to dismiss.
27
28
The court presumed the relevant state law duty was to have designed Truvada using a
different compound, which also was eventually approved by the FDA. Id. at 814, 822. The
9
Case 4:22-cv-02991-JSW Document 21 Filed 11/21/22 Page 10 of 11
1
considered Yates, but it found “persuasive the weight of authority” from district courts outside the
2
Sixth Circuit, which have found similar claims not preempted. Id. at 823-24. The court reasoned
3
that the defendant failed to cite to any laws that precluded it from “designing a reasonably safe
4
product prior to FDA approval,” in the manner suggested by the plaintiff. Id. at 824 (citations and
5
emphasis omitted). It rejected the Sixth Circuit’s rationale that this theory would be “too
6
attenuated,” because all design defect claims require some hypothetical considerations. It
7
reasoned it would not be “too attenuated to assume” the FDA would approve a safer version of a
8
drug, especially when the plaintiff alleged it had done just that with defendant’s subsequent drugs.
9
Id. (citing Guidry v. Janssen Pharm., Inc., 206 F. Supp. 3d 1187, 1208 (E.D. La. 2016)).
United States District Court
Northern District of California
10
The court also concluded that Yates misstated Bartlett’s “stop-selling” rationale. Id. at 825
11
(citing Young v. Bristol-Myers Squibb Co., No. 4:16-cv-00108-DMB-JMV, 2017 WL 706320, at
12
*8 (N.D. Miss. Feb. 22, 2017). “[T]he preapproval theory does not argue that a manufacturer
13
should have stopped acting just that it should have acted differently,” which would not run afoul
14
of “the admonition in Bartlett.” Id. (quoting Young, 2017 WL 706320, at *8). The plaintiffs
15
asserted that the defendant should have offered the FDA a safer drug from the outset. Because the
16
defendant had not presented evidence that it could not have done so and complied with both state
17
and federal law, the court held that “[a]t this stage of the proceedings, Gilead has not satisfied the
18
‘demanding’ defense of impossibility preemption” for the design defect claims. Id.; accord
19
Gaetano, 529 F. Supp. 3d at 343 (stating that a state law claim based on the assertion that a
20
manufacturer should “act differently” at the “development stage, when the manufacturer is
21
choosing among alternatives and its choice is not dictated by federal law” would not be
22
preempted); In re Zosavax (Zoster Vaccine Live) Prods. Liab. Litig., MDL No. 2848, 2021 WL
23
5235225, at *3-4 (E.D. Pa. 2021 Nov. 10, 2021) (noting split among district courts and following,
24
inter alia, Holley). The Court finds the reasoning of the cases that have declined to follow Yates
25
more persuasive. For the reasons articulated in Holley and based on the facts before the Court, it
26
concludes Defendants have not demonstrated that Anderson’s design defect claims are preempted.
27
If Anderson is able to amend her claims to show they are not time barred, Defendants are free to
28
renew this argument on a motion for summary judgment.
10
Case 4:22-cv-02991-JSW Document 21 Filed 11/21/22 Page 11 of 11
1
CONCLUSION
2
For the foregoing reasons, the Court GRANTS, IN PART, AND DENIES, IN PART,
3
Defendants’ motion to dismiss. Although Defendants asked the Court to dismiss Anderson’s
4
claims with prejudice because she declined their invitation to amend when they raised the statute
5
of limitations issue, there is no evidence of bad faith, and the Court cannot say amendment would
6
be futile. Accordingly, the Court GRANTS Anderson leave to file an amended complaint by
7
December 12, 2022. Defendants shall answer or otherwise respond by January 6, 2023.
8
9
10
United States District Court
Northern District of California
11
IT IS SO ORDERED.
Dated: November 21, 2022
______________________________________
JEFFREY S. WHITE
United States District Judge
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?