F.G. v. CooperSurgical, Inc.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 F.G., et al., Case No. 24-cv-01261-JST

8 Plaintiffs, ORDER DENYING MOTIONS TO 9 v. DISMISS AND STRIKE

10 COOPERSURGICAL, INC., et al., Re: ECF No. 68, 69 Defendants. 11

12 13 Before the Court is CooperSurgical Inc.’s (“CooperSurgical”) motion to dismiss and 14 CooperSurgical and The Cooper Companies, Inc.’s (“CooperCompanies”) (together, 15 “Defendants”) motion to strike. ECF Nos. 68, 69. The Court will deny the motion to strike and 16 the motion to dismiss as directed to Plaintiffs T.U and V.W. 17 I. BACKGROUND1 18 A. Defendants CooperSurgical and CooperCompanies 19 CooperSurgical and CooperCompanies “manufacture, market, and sell products to fertility 20 clinics, including a culture media product designed to support the growth and development of 21 embryos created through” in vitro fertilization (“IVF”). FAC ¶ 2.2 Embryo culture media is “a 22 nutrient-rich liquid that surrounds a fertilized egg during the incubation period to help it develop 23 into a viable embryo as part of the IVF process.” Id. “Embryo culture media is typically 24 comprised of multiple ingredients including carbohydrates, amino acids, vitamins, magnesium, 25 and growth factors.” Id. ¶ 49. “Magnesium is required for embryonic development and is a key 26 1 For the purpose of resolving CooperSurgical’s motion to dismiss, the Court accepts as true the 27 allegations in the first amended complaint, ECF No. 53 (“FAC”). Knievel v. ESPN, 393 F.3d 1 element to repair mutations during cell division. Insufficient magnesium levels in embryo culture 2 media can cause embryo growth to arrest and inhibit DNA repair.” Id. ¶ 50. 3 On December 5, 2023, CooperSurgical issued a recall notice for three lots of media sold 4 under its Global Media line. Id. ¶¶ 48, 54. The recall notice stated, in part, that “‘CooperSurgical 5 [had] become aware of a sudden increase in complaints regarding the aforementioned lots of this 6 product,’ acknowledged that the ‘risk to health is impaired embryo development prior to the 7 blastocyst stage,’ and directed clinics who purchased the product to quarantine and return it.” 8 Id. ¶ 55. Plaintiffs’ complaint alleges that “Defendants knew or should have known that 9 magnesium is a critical component and essential element of embryo culture media, and that a lack 10 of magnesium in the Global Media may result in the destruction or arrested development of human 11 embryos.” Id. ¶ 57. Plaintiffs contend that “Defendants failed to adequately monitor their 12 manufacturing systems and processes, and allowed for the production of embryo culture media 13 without ensuring that sufficient amounts of magnesium was included.” Id. ¶ 58. Plaintiffs further 14 allege that “Defendants did not properly test or inspect the impacted lots of Global Media until 15 after receiving numerous complaints from fertility clinics that embryos cultured in Defendant’s 16 Global Media were dying at elevated rates.” Id. ¶ 59. 17 B. Plaintiffs F.G. and H.I. 18 Plaintiffs F.G. and H.I. are “a married couple that sought fertility treatment at a fertility 19 clinic in New York, undergoing the invasive, expensive, and emotionally taxing process of IVF in 20 the hopes of having biological children.” Id. ¶ 4. In November 2023, F.G. and H.I.’s fertility 21 clinic “fertilized four of F.G.’s eggs with H.I.’s sperm and placed them in Defendants’ culture 22 media.” Id. ¶ 64. “Each of the four eggs was successfully fertilized, but all of F.G. and H.I.’s 23 developing embryos were destroyed due to Defendants’ defective culture media.” Id. ¶ 65. 24 In February 2024, F.G. and H.I.’s fertility clinic notified them that their embryos were 25 exposed to the culture media subject to a recall and that “[w]hile [CooperSurgical] has not 26 completed the investigation, [CooperSurgical does] believe that the issues observed in the field are 27 likely due to a reduced level of magnesium in the media.” Id. ¶ 66. F.G. is “older now [than] she 1 able to create additional embryos . . . those embryos made with older eggs would not have as high 2 of a chance of successfully developing into a healthy child or children.” Id. ¶ 67. 3 C. Plaintiffs T.U. and V.W. 4 Plaintiffs T.U. and V.W. are a couple who underwent “the expensive and emotionally 5 taxing process of IVF in the hopes of having children. To maximize their chances, [they] secured 6 donor eggs from a young, healthy donors. Their plan was to implant the healthy embryos in 7 Plaintiff T.U.’s uterus so that she could experience carrying their child to term.” Id. ¶ 5. They 8 “engaged in IVF treatment at Zouves Fertility Center in Foster City, California. The IVF process 9 produced six fertilized eggs that were to be developed into viable embryos.” Id. ¶ 69. On 10 December 8, 2023, their fertility clinic “fertilized six of the donor eggs and placed them in 11 Defendants’ culture media.” Id. ¶ 70. 12 “Each of the six eggs was successfully fertilized, but all but one of T.U. and V.W.’s 13 developing embryos were destroyed due to Defendants’ defective culture media. The remaining 14 embryo developed to blastocyst, but was later determined through genetic testing to be 15 chromosomally abnormal and thus unusable.” Id. ¶ 71. 16 In February 2024, T.U. and V.W. were notified by their fertility clinic that their embryos 17 were “exposed to the defective culture media, which was subject to a recall” and that the “quality 18 control issue could have resulted in fewer embryos than [they] would otherwise have made 19 embryo development [sic].” Id. ¶ 72. 20 Plaintiffs allege that the embryos they lost “are irreplaceable” and that T.U. and V.W. “are 21 both older now.” Id. ¶ 73. “As a result, even if Plaintiffs are able to afford to create additional 22 embryos—an emotionally taxing and financially costly procedure that is by no means guaranteed 23 to succeed—those embryos made with older sperm may not have as high of a chance of 24 successfully developing into a healthy child or children, and Plaintiff T.U. faces heightened risks 25 of possible health complications from carrying a child to term.” Id. 26 D. Procedural History 27 Plaintiffs brought this action against Defendants alleging strict products liability 1 gross negligence, trespass to chattels, and unjust enrichment. Id. at 17–24. Plaintiffs brought 2 these claims on behalf of themselves and on behalf of a class composed of “[a]ll individuals in the 3 United States whose eggs and/or embryos were exposed to Recalled Lots of Defendants’ Global 4 Media product (Global Media Lots number 231020-018741, 231020-018742, and 231020- 5 018743).” Id. ¶ 74. Including the present case, there are now at least 39 cases pending before the 6 undersigned making similar claims against Defendants. 7 CooperSurgical and CooperCompanies have each filed separate motions to dismiss but one 8 joint motion to strike the class allegations. ECF Nos. 67, 68, 69. After Defendants filed their 9 motions, the Court issued an Order Granting Defendants’ Motions to Dismiss and Granting 10 Plaintiffs Jurisdictional Discovery in the related case, Walden v. CooperSurgical, 4:24-cv-00903- 11 JST (N.D. Cal. Sept. 9, 2024). In light of the Court’s Walden order, the Court defers ruling on 12 CooperCompanies’ motion to dismiss as well as the portion of CooperSurgical’s motion directed 13 to the non-California Plaintiffs pending the completion of jurisdictional discovery. See ECF No. 14 88 at 2. But the Court will now decide Defendants’ motion to strike and the portion of 15 CooperSurgical’s motion to dismiss directed to T.U. and V.W. See id.; ECF No. 93. 16 II. JURISDICTION 17 Plaintiffs allege this Court has jurisdiction under 28 U.S.C. § 1332(d). 18 III. MOTION TO DISMISS 19 A. Legal Standard 20 To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a 21 complaint must contain “a short and plain statement of the claim showing that the pleader is 22 entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal “is appropriate only where the complaint 23 lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 24 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). 25 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 26 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 27 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff 1 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. While this standard is not “akin to a 2 ‘probability requirement’ . . . it asks for more than a sheer possibility that a defendant has acted 3 unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are 4 ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and 5 plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). 6 In determining whether a plaintiff has met the plausibility requirement, a court must 7 “accept all factual allegations in the complaint as true and construe the pleadings in the light most 8 favorable” to the plaintiff. Knievel, 393 F.3d at 1072. 9 B. Discussion 10 1. Recoverable Damages 11 CooperSurgical argues that T.U. and V.W.’s cannot seek emotional distress damages 12 because they have not alleged facts “to show that they were physically injured,” and embryos are 13 “likely” considered property under California law—thus limiting recovery to economic losses 14 under contract law rather than tort. ECF No. 68 at 24–29. T.U. and V.W. respond that “embryos 15 are considered a very special type of property under California law” and that they “may recover 16 emotional distress damages from Defendants who proximately caused damage to that special 17 property.” ECF No. 77 at 32 (citing In re Pac. Fertility Ctr. Litig., 2021 WL 5161926, at *9 (N.D. 18 Cal. Nov. 5, 2021) (upholding jury’s assessment of emotional distress damages for the destruction 19 of eggs and embryos); Windeler v. Scheers Jewelers, 8 Cal. App. 3d 844, 852 (1970) (emotional 20 distress damages were recoverable following defendant’s negligent loss of irreplaceable family 21 heirloom); Christensen v. Superior Ct., 54 Cal.3d 868, 890–91 (1991) (recovery for emotional 22 distress available for improper handling of cremated human remains)). 23 Assuming, without deciding, that embryos would be considered property under California 24 law, the Court concludes that emotional distress damages are available for the negligent 25 destruction of those embryos. CooperSurgical is correct that the law in California generally does 26 not permit recovery of emotional distress damages for negligent damage to personal property. See 27 Gonzales v. Pers. Storage, Inc., 56 Cal. App. 4th 464, 476 (1997) (citing Cooper v. Superior Ct., 1 is subject to exception when the defendant’s negligent conduct “occurs in the course of specified 2 categories of activities, undertakings, or relationships in which negligent conduct is especially 3 likely to cause serious emotional harm.” Restatement (Third) of Torts: Phys. & Emot. Harm § 47 4 (2012). “Courts have expanded liability for negligent infliction of emotional harm when the 5 circumstances involved provide confidence that reasonable persons subjected to the psychological 6 trauma involved would suffer serious emotional harm.” Id. A case involving the negligent 7 destruction of a human embryo—like the case involving human remains cited above—inarguably 8 falls in this category. 9 Courts in other jurisdictions have permitted emotional distress claims in similar 10 circumstances. The Superior Court of Rhode Island permitted a claim for emotional distress 11 damages for the negligent loss of frozen pre-embryos. Frisina v. Women & Infants Hosp. of 12 Rhode Island, No. CIV. A. 95-4037, 2002 WL 1288784, at *10 (R.I. Super. May 30, 2002). And 13 Jeter v. Mayo Clinic Arizona left open the question of whether emotional distress damages were 14 available for the negligent destruction of frozen human pre-implantation embryos, in light of the 15 “special respect” due pre-embryos. 211 Ariz. 386, 403, (Ct. App. 2005) (citing Davis v. Davis, 16 842 S.W.2d 588, 597 (Tenn. 1992)). But see Doe v. Irvine Sci. Sales Co., 7 F. Supp. 2d 737, 740– 17 41 (E.D. Va. 1998) (dismissing claim for negligent infliction of emotional distress based on 18 manufacturer’s failure to withdraw defective Human Albumin that contaminated cryopreserved 19 embryos). 20 Notably, one court in California has upheld a jury’s award of emotional distress damages 21 in a case involving the destruction of cryopreserved eggs and embryos caused by the failure of a 22 defective storage tank. See Pac. Fertility, 2021 WL 5161926, at *8–9. CooperSurgical argues 23 Pacific Fertility is distinguishable because that case involved “matured, frozen embryos” rather 24 than developing embryos and/or fertilized eggs as here. ECF No. 80 at 15. As an initial matter, 25 CooperSurgical’s recitation of the facts is incorrect—the claims in Pacific Fertility involved the 26 destruction of both frozen embryos and frozen eggs. See ECF No. 77-4 at 17 (“Plaintiffs allege 27 that Tank 4 lost liquid nitrogen during an incident that occurred the weekend of March 4, 2018, 1 factual distinction between frozen embryos and frozen eggs, CooperSurgical fails to explain why 2 emotional distress damages would be available for the destruction of “matured, frozen embryos” 3 but not fertilized eggs—particularly given its argument that all embryos are considered property 4 and not the proper subject of emotional distress damages. 5 For all these reasons, the Court finds that emotional distress damages are available and that 6 T.U. and V.W. have sufficiently alleged damages to support their claims. 7 2. Causation 8 CooperSurgical next argues that T.U. and V.W. have not sufficiently alleged causation for 9 their claims because (1) they have not demonstrated that CooperSurgical was “responsible for 10 their fertilized eggs . . . not grow[ing] into blastocysts,” when “the IVF process is uncertain and 11 provides no guarantee that any one step will be successful with no attrition,” ECF No. 68 at 12 26–27, and (2) T.U. and V.W.’s fertilized eggs were placed in the media three days after 13 CooperSurgical issued its recall notice, ECF No. 68 at 24. The Court is unpersuaded by either 14 argument. 15 First, T.U. and V.W. allege that CooperSurgical’s culture media caused their embryos and 16 eggs to be damaged or destroyed because it had insufficient levels of magnesium. FAC ¶¶ 1–9, 17 96. And while the IVF process does not guarantee success, T.U. and V.W. allege that 18 CooperSurgical reduced their chances of success by depriving their fertilized eggs of the 19 necessary nutrients for development to viability. See FAC ¶¶ 3, 5, 8, 71–72. As both parties 20 acknowledge, causation is a fact-intensive inquiry often left for the jury. See ECF No. 77 at 22 21 (“Defendants’ argument at core raises a question of fact for the jury.”); ECF No. 80 at 13 22 (“causation is often a matter for the jury”); see Doe v. Lawndale Elementary Sch. Dist., 72 Cal. 23 App. 5th 113, 126 (2021) (noting that “factual and legal causation” . . . are usually questions for 24 the jury” (citation omitted)). At the pleading stage, T.U. and V.W. need not conclusively prove 25 that the culture media’s defect destroyed their fertilized eggs. They merely need to advance a 26 plausible theory of liability. See, e.g., Greer v. Cnty. of San Diego, No. 3:19-CV-0378-GPC-AGS, 27 2019 WL 5453955, at *10 (S.D. Cal. Oct. 24, 2019) (“Because these detailed factual allegations 1 12(b)(6) motion to dismiss.”). They have done so. 2 Second, CooperSurgical’s timing argument is similarly unavailing. CooperSurgical argues 3 that because T.U. and V.W.’s fertilized eggs “were placed in the media after it was recalled, any 4 damage to their fertilized eggs is not the fault of CooperSurgical . . . ; rather, if anything, it is the 5 fault of the fertility clinic for using recalled materials, if they were even used.” ECF No. 68 at 24. 6 But the timing of the recall does not categorically negate liability at this pleading stage. As T.U. 7 and V.W. argue, there are many potential chains of events that could lead a jury to conclude that 8 CooperSurgical is liable notwithstanding the timing of the recall. For example, T.U. and V.W.’s 9 fertility clinic “may not have received notice of the recall within those three days, or the clinic 10 might have placed the embryos in the medium earlier than they represented to Plaintiffs.” ECF 11 No. 77 at 30. And any negligence on the fertility clinic’s part for using recalled materials may 12 raise questions of apportioned fault but not necessarily absolve CooperSurgical of all liability. 13 The Court therefore rejects CooperSurgical’s arguments regarding causation. 14 3. Strict Products Liability—Design Defect 15 “‘A manufacturer may be held strictly liable for placing a defective product on the market 16 if the plaintiff’s injury results from a reasonably foreseeable use of the product.’” Pooshs v. Philip 17 Morris USA, Inc., 904 F. Supp. 2d 1009, 1024 (N.D. Cal. 2012) (quoting Saller v. Crown Cork & 18 Seal Co., 187 Cal. App. 4th 1220, 1231 (2010)). “California law recognizes two tests for 19 establishing a design defect under product liability law: the ‘consumer expectations test’ and the 20 ‘risk-benefit test.’” Reynolds v. EzriCare LLC, No. 3:23-CV-01632-JSC, 2023 WL 7166816, at 21 *6 (N.D. Cal. Oct. 30, 2023) (citing Barker v. Lull Eng’g Co., 20 Cal. 3d 413, 418 (1978)). 22 T.U. and V.W. allege sufficient facts to meet both tests. Under the consumer expectations 23 test, they allege that the “culture media was used as intended when it came into contact with [their] 24 embryos” and that “ordinary users do not expect culture media to prevent embryo development.” 25 FAC ¶¶ 92, 94. But contrary to expectations, T.U. and V.W.’s embryos were destroyed as a result 26 of the defective culture media. Id. ¶ 8. Taken as true, these allegations state a claim for strict 27 liability due to a design defect. See Reynolds, 2023 WL 7166816, at *6. T.U. And V.W. similarly 1 embryo development outweigh any possible benefits of formulating the culture without a 2 sufficient level of magnesium. FAC ¶¶ 96–97. 3 CooperSurgical argues that T.U. and V.W. fail to allege a design defect claim because the 4 facts “describe a manufacturing issue with discrete batches of the product, not an issue with its 5 entire design or warnings.” ECF No. 68 at 24. But T.U. and V.W. do allege a defect relating to 6 the design of the recalled Global Media; they allege an issue with the “formulation” of the culture 7 media. FAC ¶ 96. While only certain lots of Global Media were recalled, this is not fatal to a 8 design defect claim. As T.U. and V.W. argue, the non-recalled lots may have still been subject to 9 the same defective design, but may simply not have malfunctioned in the same way. ECF No. 77 10 at 30. Or CooperSurgical “may have designed [its] production sequence without a reasonable 11 number of tests to ensure product quality.” Id. T.U. and V.W. need not prove these facts at this 12 pleading stage, and the facts as alleged plausibly state a design defect claim. 13 4. Strict Products Liability—Failure to Warn 14 Failure to warn is “a species of design defect products liability.” Saller, 187 Cal. App. 4th 15 at 1238 (citing Anderson v. Owens-Corning Fiberglas Corp., 53 Cal. 3d 987, 994–95 (1991)). 16 Under this theory, “a product, although faultlessly made, may nevertheless be deemed ‘defective’ 17 under the rule and subject the supplier thereof to strict liability if it is unreasonably dangerous to 18 place the product in the hands of a user without a suitable warning and the product is supplied and 19 no warning is given.” Canifax v. Hercules Powder Co., 237 Cal. App. 2d 44, 53 (1965). 20 “The duty to warn requires that the manufacturer knows, or should have known, of the 21 danger of the product at the time it is sold or distributed.” Saller, 187 Cal. App. 4th at 1239 22 (citing Brown, 44 Cal. 3d at 1065–66; Anderson, 53 Cal. 3d at 1000). The plaintiff must 23 sufficiently allege that the defendant “did not adequately warn of a particular risk that was known 24 or knowable in light of the generally recognized and prevailing best scientific and medical 25 knowledge available at the time of the manufacture and distribution . . . .” Anderson, 53 Cal.3d at 26 1002–03 (footnote omitted). Here, T.U. and V.W. allege that the culture media used for their 27 embryo development had risks “that were known or knowable in light of the scientific and medical 1 failed to give adequate warnings “concerning the risk of defect that its formulation lacked 2 sufficient magnesium and would stop embryos [sic] development.” FAC ¶¶ 101–02. 3 CooperSurgical argues that T.U. and V.W.’s failure-to-warn claim fails for three reasons. 4 First, CooperSurgical “properly relied on their fertility clinic and its medical providers to convey 5 appropriate warnings to” T.U and V.W., and a “manufacturer’s liability to the ultimate consumer 6 ‘may be extinguished by ‘intervening cause’ where the manufacturer . . . provides adequate 7 warnings to a middleman.’” ECF No. 68 at 25 (quoting Garza v. Asbestos Corp., 74 Cal. Rptr. 3d 8 359, 367 (Cal. Ct. App. 2008), as mod. (Apr. 2, 2008)). Second, CooperSurgical contends that it 9 had no duty to warn of the alleged defect in the media because it was unaware of the defect. Id. 10 Third, CooperSurgical argues that when a sophisticated intermediary is involved, no warnings are 11 required. Id. The Court rejects all three arguments. 12 CooperSurgical’s first argument fails because Plaintiffs allege that CooperSurgical did not 13 provide any warnings. ECF No. 53 ¶¶ 102, 104, 106, 130. Thus, there is no way to conclude at 14 this stage that such warnings, if given, were adequate. 15 CooperSurgical’s second argument fails for similar reasons. Plaintiffs allege actual 16 knowledge of the alleged defect. Id. ¶¶ 57, 104, 105, 113, 114, 119, 127. CooperSurgical’s 17 protestations to the contrary create a dispute of fact that the Court cannot resolve on a motion to 18 dismiss. Moreover, even if CooperSurgical did not have actual knowledge about the alleged 19 defect, it still had a duty to warn of that defect if it was a risk “knowable in light of the generally 20 recognized and prevailing best scientific and medical knowledge available at the time of the 21 manufacture and distribution . . . .” Anderson, 53 Cal.3d at 1002–03 (footnote omitted). Here, 22 T.U. and V.W. allege that the levels of magnesium necessary to support the development of 23 fertilized eggs in the culture media was known at the time of manufacture and distribution. See 24 FAC ¶ 57. They further allege that CooperSurgical could have ensured that sufficient amounts of 25 magnesium were included in its embryo culture media but did not because of deficient monitoring, 26 testing, and inspection. Id. ¶¶ 58–59. The alleged defect was thus “knowable,” and Plaintiffs have 27 adequately pleaded that CooperSurgical had a duty to warn about it. 1 argue that “sophisticated users need not be warned about dangers of which they are already aware 2 or should be aware.” This argument again raises factual disputes that cannot be resolved at this 3 stage. And even taking the argument on the merits, Webb elaborates that the “focus of the 4 defense . . . is whether the danger in question was so generally known within the trade or 5 profession that a manufacturer should not have been expected to provide a warning specific to the 6 group to which plaintiff belonged.” Id. (internal quotation marks and citation omitted). Here, “the 7 danger in question” was an alleged defect present in the Global Media that CooperSurgical asserts 8 that even it did not know about when it distributed the media to fertility clinics. See ECF No. 68 9 at 25. The defect thus could not have been one “so generally known within the trade or 10 profession” that CooperSurgical should not have been expected to provide a warning to T.U. and 11 V.W. or to their fertility clinic. 12 5. Strict Products Liability—Manufacturing Defect 13 Under California law, “[t]o state a claim under strict liability theory for a manufacturing 14 defect, a plaintiff must allege the following elements: ‘(1) he has been injured by the product; (2) 15 the injury occurred because the product was defective; and (3) the defect existed when the product 16 left the hands of the defendant.’” Smith v. Medtronic, Inc., No. 22-CV-09179-JSW, 2023 WL 17 4849432, at *3 (N.D. Cal. July 28, 2023) (quoting Nichols v. Covidien LP, No. 20-cv-06836- 18 EMC, 2021 WL 764134, at *3 (N.D. Cal. Feb. 26, 2021) (citations omitted)). To survive a motion 19 to dismiss for failure to state a claim, a plaintiff alleging a manufacturing defect must 20 “identify/explain how the [product] either deviated from [defendant’s] intended result/design or 21 how the [product] deviated from other seemingly identical [product] models.” 22 Trabakoolas v. Watts Water Techs., Inc., No. 12-CV-01172-YGR, 2012 WL 2792441, at *4 (N.D. 23 Cal. July 9, 2012) (emphasis and alterations in original) (quoting Lucas v. City of Visalia, 726 F. 24 Supp. 2d 1149, 1155 (E.D. Cal. 2010) (citing Barker v. Lull Eng’g Co., 20 Cal. 3d 413, 429 25 (1978))). “A bare allegation that the [product] had ‘a manufacturing defect’ is an insufficient legal 26 conclusion.” In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices & Prods. 27 Liab. Litig., 754 F. Supp. 2d 1208, 1222 (C.D. Cal. 2010) (alteration in original) (citing Barker, 20 1 T.U. and W.V. allege that (1) they suffered economic loss and emotional distress because 2 the defective culture media destroyed their embryos; (2) that the injury occurred, at least in part, 3 because the culture media lacked a sufficient level of magnesium; and (3) the magnesium defect 4 existed in the culture media when it left CooperSurgical’s possession. ECF No. 53 ¶¶ 85, 87. The 5 only arguments CooperSurgical raises for why T.U. and V.W.’s manufacturing defect claim is 6 deficient are the causation and damages arguments addressed above. Accordingly, T.U. and V.W. 7 have adequately alleged a manufacturing defect. 8 6. Negligent Failure to Recall 9 Under California law, a manufacturer may be liable if it fails to recall a product after 10 “either a shift in industry standards or post-sale knowledge [] puts a manufacturer on notice 11 regarding a dangerous product defect.” Roberts v. Electrolux Home Prods., Inc., No. CV-12- 12 1644, 2013 WL 7753579, at *13 (C.D. Cal. Mar. 4, 2013) (citing Lunghi v. Clark Equip. Co., 200 13 Cal. App. 3d, 485, 494 (Cal. Ct. App. 1984)). 14 T.U. and V.W. allege that CooperSurgical did not “timely recall the defective culture 15 media” after it knew or should have known about the alleged defect. See FAC ¶¶ 112–16. 16 CooperSurgical argues that T.U. and V.W.’s failure-to-recall claim fails because CooperSurgical 17 did issue a recall notice for the affected lots on December 5, 2023—three days before T.U. and 18 V.W.’s eggs were placed in the culture media. See ECF No. 68 at 27. For the same reasons 19 discussed in the Court’s causation analysis, the Court finds that the mere fact that a recall notice 20 was issued does not negate liability at this stage. CooperSurgical may still have delayed in issuing 21 a notice, or the notice may have been ineffective at preventing injury. But T.U. and V.W. need not 22 prove those facts now, and they have plausibly stated a claim for relief. 23 7. Negligence and/or Gross Negligence 24 Negligence requires that (1) the defendant owed the plaintiff a legal duty; (2) the defendant 25 breached the duty; and (3) the breach proximately or legally caused (4) the plaintiff’s damages or 26 injuries. Thomas v. Stenberg, 206 Cal. App. 4th 654, 662 (2012) (citing Ann M. v. Pacific Plaza 27 Shopping Ctr., 6 Cal.4th 666, 673 (1993)). CooperSurgical argues that T.U. and V.W.’s 1 and California’s economic loss rule bars their recovery. ECF No. 68 at 28. The Court has already 2 addressed CooperSurgical’s causation argument above. 3 As to its second argument, “California decisional law has long recognized that the 4 economic loss rule does not necessarily bar recovery in tort for damage that a defective product 5 (e.g., a window) causes to other portions of a larger product (e.g., a house) into which the former 6 has been incorporated.” Jimenez v. Superior Ct., 29 Cal. 4th 473, 483, 58 P.3d 450 (2002). As 7 T.U. and V.W. argue, their “damaged embryos are not the property that was purchased or subject 8 to any contractual promise.” ECF No. 77 at 32. Rather, the allegedly defective product purchased 9 was the culture media, which in turn destroyed T.U. and V.W.’s fertilized eggs. Because T.U. and 10 V.W. seek to recover for damage to “property other than the [culture media] itself,” the economic 11 loss rule does not bar their recovery for damage to their eggs. 12 8. Trespass to Chattels 13 In California, trespass to chattels “lies where an intentional interference with the 14 possession of personal property has proximately caused injury.” In re Apple Inc. Device 15 Performance Litig., 347 F. Supp. 3d 434, 455 (N.D. Cal. 2018) (quoting Thrifty-Tel, Inc. v. 16 Bezenek, 46 Cal. App. 4th 1559, 54 Cal. Rptr. 2d 468, 473 (1996)). “[T]he intent necessary to 17 prove trespass to chattels includes intentional behavior that only mistakenly causes harm as well 18 as conduct committed willfully.” Crab Boat Owners Ass’n v. Hartford Ins. Co. of the Midwest, 19 No. C03-05417 MHP, 2004 WL 2600455, at *5 (N.D. Cal. Nov. 15, 2004). 20 T.U. and V.W. allege that CooperSurgical acted intentionally in “manufacturing a 21 defective product that destroyed the material instead of safely culturing the fertilized eggs to 22 develop into healthy embryos, and by failing to recall or warn about the dangers of this product 23 before it was used on Plaintiffs’ and class members’ reproductive material.” FAC ¶ 130. They 24 have thus sufficiently alleged that CooperSurgical’s intentional actions interfered with their 25 possession of the fertilized eggs. 26 9. Unjust Enrichment and/or Restitution 27 While California case law is not entirely clear on whether unjust enrichment is an 1 independent cause of action,3 the Ninth Circuit has “construed the common law to allow an unjust 2 enrichment cause of action through quasi-contract” seeking restitution. ESG Cap. Partners, LP v. 3 Stratos, 828 F.3d 1023, 1038 (9th Cir. 2016). “Unjust enrichment is generally an inapplicable 4 basis for restitution where the parties have an enforceable express contract . . . .” Sepanossian v. 5 Nat’l Ready Mix Co., Inc., 97 Cal. App. 5th 192, 207, 315 Cal. Rptr. 3d 373, 385 (2023). Notably, 6 “[t]o confer a benefit . . . it is not essential that money be paid directly to the recipient by the party 7 seeking restitution.” City of Oakland v. Oakland Raiders, 83 Cal. App. 5th 458, 478 (2022) 8 (citing Hirsch v. Bank of Am., 107 Cal. App. 4th 708, 722 (2003)). “[W]here someone other than 9 the plaintiff provided the benefit the defendants allegedly unjustly retained, as between the 10 plaintiff and the defendant, the plaintiff is entitled to restitution from the defendant where the 11 plaintiff ‘has a better legal or equitable right.’” Id. at 479 (quoting Restatement (Third) of 12 Restitution and Unjust Enrichment § 48). 13 Here, T.U. and V.W. allege that CooperSurgical earned revenue from selling defective 14 culture media to fertility clinics, which led to the destruction of many individuals’ fertilized eggs 15 and embryos. As CooperSurgical recognizes, “CooperSurgical was never paid by [T.U. and 16 V.W.],” ECF No. 68 at 29, so there is no express contract under which T.U. and V.W. could 17 recover. But T.U. and V.W. can still recover under an unjust enrichment theory if they have a 18 better legal or equitable right to the revenues earned by CooperSurgical from selling to the fertility 19 clinics. T.U. and V.W. allege that “[r]etention of the payments received under these 20 circumstances is unjust and inequitable because Defendants’ representations and labeling of the 21 recalled embryo culture media lots was misleading to consumers, which caused injuries to 22 Plaintiffs . . . .” FAC ¶ 143. Accordingly, they have adequately pleaded a claim for unjust 23 enrichment and/or restitution. 24 IV. MOTION TO STRIKE 25 Defendants ask the Court to strike the class allegations under either Rule 12(f) or Rule 23. 26 3 Compare Castillo v. Toll Bros., 197 Cal. App. 4th 1172, 1210 (2011) (“California does not 27 recognize unjust enrichment as a separate cause of action”) with LeBrun v. CBS Television 1 Federal Rule of Civil Procedure 12(f) authorizes the Court to “strike from a pleading . . . any 2 redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The function of 3 a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from 4 litigating spurious issues by dispensing with those issues prior to trial . . . .” Whittlestone, Inc. v. 5 Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quotation marks and citations omitted). 6 Similarly, Federal Rule of Civil Procedure 23(d)(1)(D) allows the Court to “issue orders 7 that . . . require that the pleadings be amended to eliminate allegations about representation of 8 absent persons and that the action proceed accordingly.” Fed. R. Civ. P. 23(d)(1)(D). 9 “[A] motion to strike class claims based only on the pleadings is proper only if the court is 10 ‘convinced that any questions of law are clear and not in dispute, and that under no set of 11 circumstances could the claim or defense succeed.’” Parducci v. Overland Sols., Inc., 399 F. 12 Supp. 3d 969, 976 (N.D. Cal. 2019) (quoting In re iPad Unlimited Data Plan Litig., 2012 WL 13 2428248, at *2 (N.D. Cal. June 26, 2012)). “[D]ismissal of class allegations at the pleading stage 14 should be done rarely and . . . the better course is to deny such a motion because the shape and 15 form of a class action evolves only through the process of discovery.” In re Wal-Mart Stores, Inc. 16 Wage & Hour Litig., 505 F. Supp. 2d 609, 615 (N.D. Cal. 2007) (quoting Myers v. MedQuist, Inc., 17 No. 05-4608, 2006 WL 3751210, *4 (D.N.J. 2006) (internal quotation omitted)); see also 7AA 18 Charles Alan Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure Civil § 19 1785.3 (3d. 2005) (providing that the practice employed in the overwhelming majority of class 20 actions is to address class certification issues only after an appropriate period of discovery). 21 Here, Defendants argue that the putative classes will never be certifiable because 22 Plaintiffs’ highly individualized personal injury and claims under the laws of dozens of states 23 predominate over common issues. ECF No. 69 at 17–28. Plaintiffs argue that Defendants’ motion 24 is improper because Defendants do not argue that Plaintiffs’ class claims are “part of an 25 insufficient defense, redundant, immaterial, impertinent, or scandalous,” as they must under 26 Whittlestone. ECF No. 75 at 6 (quoting Whittlestone, 618 F.3d at 973). They further argue that 27 even if the motion were proper, Defendants’ arguments fail on the merits because Plaintiffs have 1 warranting adjudication by class representation. Id. at 6-7. 2 This is not an exceptional case that warrants the class claims being stricken at this stage. 3 As this Court has done in prior cases, it “declines to strike the class allegations here where 4 || discovery has not yet commenced and the issues raised by [Defendants] are ones to be addressed 5 at the class certification, not the motion to dismiss, stage.” Gatling-Lee v. Del Monte Foods, Inc., 6 No. 22-CV-00892-JST, 2023 WL 11113888, at *14 (N.D. Cal. Mar. 28, 2023), reconsideration 7 denied sub nom. Nacarino v. Del Monte Foods, Inc., No. 22-CV-00892-JST, 2024 WL 847925 8 (N.D. Cal. Feb. 28, 2024); see also Williams v. Affinity Ins. Servs., Inc., No. 23-CV-06347-JST, 9 2024 WL 3153214, at *8 (N.D. Cal. June 24, 2024); Bui-Ford v. Tesla, Inc., No. 4:23-CV-02321, 10 2024 WL 694485, at *8 (N.D. Cal. Feb. 20, 2024); Dodson v. Tempur-Sealy Int'l, Inc., No. 13- 11 CV-04984-JST, 2014 WL 1493676, at *11 (N.D. Cal. Apr. 16, 2014). 12 CONCLUSION 5 13 For the foregoing reasons, the Court denies Defendants’ motion to strike and 14 || CooperSurgical’s motion to dismiss as directed to Plaintiffs T.U. and V.W. 3 15 IT IS SO ORDERED. a 16 || Dated: December 4, 2024 C □ 4 . M JON S. TI 18 United States District Judge 19 20 21 22 23 24 25 26 27 28