Anita Laux v. Mentor Worldwide, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 26, 2019
• Docket: 17-56832
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 26 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANITA LAUX, No. 17-56832

Plaintiff-Appellant, D.C. No. 2:16-cv-01026-ODW- AGR v.

MENTOR WORLDWIDE, LLC, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Otis D. Wright, II, District Judge, Presiding

Submitted November 18, 2019**

Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.

Anita Laux appeals pro se from the district court’s summary judgment in her

diversity action alleging state law claims arising from alleged defects in her breast

implants manufactured by Mentor Worldwide, LLC. We have jurisdiction under

28 U.S.C. § 1291. We review de novo. Kohler v. Bed Bath & Beyond, LLC, 780

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). F.3d 1260, 1263 (9th Cir. 2015). We may affirm on any basis supported by the

record. Id. We affirm.

Summary judgment was proper for Mentor on each of Laux’s state law

claims because Laux failed to raise a genuine dispute of material fact as to whether

Mentor violated a Food and Drug Administration (“FDA”) requirement, and

therefore her state law claims are expressly preempted under the Medical Device

Amendments (“MDA”) to the Food, Drug, and Cosmetic Act. See Weber v.

Allergan, Inc., 940 F.3d 1106, 1111 (9th Cir. 2019) (“[F]or a state law claim

regarding a Class III medical device[, such as breast implants,] to survive express

preemption by the MDA, a plaintiff must establish that the defendant violated an

FDA requirement.”).

The district court did not abuse its discretion by excluding the opinions of

Laux’s proffered expert witnesses because their opinions failed to satisfy the

requirements of Federal Rule of Evidence 702. Wendell v. GlaxoSmithKline LLC,

858 F.3d 1227, 1231-32 (9th Cir. 2017) (setting forth standard of review and

admissibility requirements for expert opinion testimony under Rule 702, as

explained in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)); see also

Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)

(district court may exclude information by an expert witness “required to be

disclosed by [Federal Rule of Civil Procedure] 26(a) that [was] not properly

2 17-56832 disclosed”).

The district court did not abuse its discretion by denying Laux’s motion for

leave to amend her complaint because amendment would have caused an undue

delay, prejudiced Mentor, and been futile. See Desertrain v. City of Los Angeles,

754 F.3d 1147, 1154 (9th Cir. 2014) (setting forth standard of review and factors

for determining whether to grant leave to amend).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Laux’s motion to supplement the record on appeal is denied. See Gonzalez

v. United States, 814 F.3d 1022, 1031 (9th Cir. 2016) (“Absent extraordinary

circumstances, we generally do not permit parties to supplement the record on

appeal.”).

Mentor’s motion to strike references to portions of deposition transcripts that

are not part of the record on appeal is denied as unnecessary.

AFFIRMED.

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