1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM HOFER AND KAY HOFER, Case No.: 3:18-cv-01991-AJB-BLM
12 Plaintiffs, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED 14 WRIGHT MEDICAL TECHNOLOGY, COMPLAINT INC., a Delaware corporation, and DOES 15 1-10, inclusive, (Doc. No. 17) 16 Defendant. 17 18 19 Presently before the Court is Defendant Wright Medical Technology, Inc.’s 20 (“Defendant”) motion to dismiss Plaintiffs William and Kay Hofer’s (“Plaintiffs”) first 21 amended complaint. (Doc. No. 17.) Plaintiffs oppose the motion. (Doc. No. 19.) For the 22 reasons set forth more clearly below, the Court GRANTS Defendant’s motion to dismiss. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 I. BACKGROUND 2 In late 1999, Defendant purchased a manufacturer of artificial hip systems, which 3 were designed starting in 1985. (Doc. No. 14 ¶ 12.) In or about 2000, Defendant made a 4 design change to the original artificial hip system. (Id. ¶ 33.) In late 2000, Defendant 5 received permission from the United States Food and Drug Administration (“FDA”) to 6 distribute one model (“PROFEMUR ‘R’”) of its artificial hip systems. (Id. ¶ 13). Sometime 7 after this, Defendant began to manufacture, market, and distribute various additional 8 products, including the PROFEMUR “Plasma Z” hip system (“PROFEMUR ‘Z’”) that had 9 yet to be considered or cleared by the FDA. (Id. ¶¶ 14, 15, 31). 10 From 2002 to 2005, Defendant made representations through various marketing 11 materials that its PROFEMUR hip systems were “designed in 1985” and implanted in 12 50,000 patients without any clinical failures. (Id. ¶ 32). Marketing also guaranteed 13 “structural reliability” and “absence of fretting corrosion.” (Id. ¶ 32). 14 “Designed in 1985” references the original design that existed prior to the 2000 15 design change. (Id. ¶ 35.) Additionally, Defendant was aware of clinical failures in the 16 original design and knew the root cause of those failures to be fretting and corrosion. (Id. 17 ¶¶ 36, 37.) 18 In 2002, Defendant sent a marketing letter to sale representatives identifying fretting 19 and corrosion as barriers to selling their hip systems to surgeons. (Id. ¶ 38.) The letter 20 instructed representatives to tell surgeons that the systems had been implanted 50,000 times 21 without any clinical failures. (Id. ¶ 39.) 22 In 2008, Plaintiff William Hofer had hip arthroplasty, at which time he had a 23 variation of Defendant’s products, including the PROFEMUR “Z,” implanted by Dr. 24 Jeffrey Marxen. (Id. ¶¶ 67, 68.) In deciding to implant PROFEMUR “Z,” Plaintiffs allege 25 26 27 1 The following facts are taken from Plaintiffs’ First Amended Complaint, (Doc. No. 14), and are construed as true for the limited purpose of resolving the instant motion. See Brown v. Elec. Arts, Inc., 28 1 Dr. Marxen relied upon Defendant's representative’s depictions that PROFEMUR “Z” was 2 FDA cleared and had a good clinical history. (Id. ¶¶ 40, 41.) 3 In 2010, the FDA became aware that the PROFEMUR “Z” was being sold and 4 implanted, and notified Defendant to submit for clearance and cease marketing the system. 5 (Id. ¶ 25.) The FDA later denied the application to market PROFEMUR “Z” due to poor 6 clinical history. (Id. ¶¶ 25, 26.) 7 Plaintiffs allege that in December 2016, Mr. Hofer’s PROFEMUR hip system failed, 8 breaking into pieces. (Id. ¶ 71.) Subsequently, Mr. Hofer had the hip system surgically 9 removed. (Id. ¶ 74.) 10 Plaintiffs allege that Defendant’s PROFEMUR products implanted in Mr. Hofer 11 were inappropriately advertised and unreasonably dangerous for the intended use. (Id. ¶¶ 12 92, 126.) On October 4, 2018, Plaintiffs filed their first amended complaint. (Doc. No. 14.) 13 In the complaint, Plaintiffs allege (1) strict products liability – failure to warn; (2) 14 negligence; (3) negligent misrepresentation; and (4) loss of consortium. (See generally id.) 15 II. LEGAL STANDARD 16 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s 17 complaint and allows a court to dismiss a complaint upon a finding that the plaintiff has 18 failed to state a claim upon which relief may be granted. See Navarro v. Block, 250 F.3d 19 729, 732 (9th Cir. 2001). “[A] court may dismiss a complaint as a matter of law for (1) lack 20 of a cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” 21 SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) 22 (citation and internal quotation marks omitted). However, a complaint will survive a 23 motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on 24 its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this 25 determination, a court reviews the contents of the complaint, accepting all factual 26 allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. 27 Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 28 2007). 1 Notwithstanding this deference, the reviewing court need not accept “legal 2 conclusions” as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for a 3 court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Associated 4 Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 5 (1983). 6 III. DISCUSSION 7 Defendant seeks dismissal only of Plaintiffs’ third claim for negligent 8 misrepresentation on the grounds that the claim fails to satisfy the heightened pleading 9 standard of Federal Rule of Civil Procedure 9(b). (Doc. No. 17-1 at 1.) 10 A. Application of Heightened Pleading to Negligent Misrepresentation Claims 11 Plaintiffs assert that the heightened pleading standard of Rule 9(b) may not apply to 12 a negligent misrepresentation claim as it differs from one of fraud and fraud is not included 13 in the claim’s elements. (Doc. No. 19 at 4.) Although the Ninth Circuit has not decided this 14 issue, this Court has decided: “a claim for negligent misrepresentation must meet the 15 particularity requirement of Rule 9(b).” Moorer v. Stemgenex Med. Grp., Inc., No. 16-CV- 16 2816-AJB-NLS, 2017 WL 1281882, at *9 (S.D. Cal. Apr. 6, 2017); see Monreal v. GMAC 17 Mortg., LLC, 948 F. Supp. 2d 1069, 1078 (S.D. Cal. 2013); Chan v. Chancelor, No. 09- 18 CV-1839-AJB-CAB, 2011 WL 5914263, at *5 (S.D. Cal. Nov. 28, 2011); see also Giglio 19 v. Monsanto Co., No. 15-CV-2279-BTM-NLS, 2016 WL 1722859, at *4 (S.D. Cal. Apr. 20 29, 2016) (“This court falls within the majority of the district courts in California that 21 consider negligent misrepresentation a species of fraud and apply Rule 9(b).”). Therefore, 22 the Rule 9(b) pleading standard applies to Plaintiffs’ claim of negligent misrepresentation. 23 Rule 9(b) requires plaintiffs to “state with particularity the circumstances constituting fraud 24 or mistake.” To satisfy this standard, plaintiffs must identify “the time, place, and content 25 of [the] alleged misrepresentation[s],” as well as the “circumstances indicating falseness” 26 or “manner in which the representations at issue were false and misleading.” In re GlenFed, 27 Inc. Sec.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM HOFER AND KAY HOFER, Case No.: 3:18-cv-01991-AJB-BLM
12 Plaintiffs, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED 14 WRIGHT MEDICAL TECHNOLOGY, COMPLAINT INC., a Delaware corporation, and DOES 15 1-10, inclusive, (Doc. No. 17) 16 Defendant. 17 18 19 Presently before the Court is Defendant Wright Medical Technology, Inc.’s 20 (“Defendant”) motion to dismiss Plaintiffs William and Kay Hofer’s (“Plaintiffs”) first 21 amended complaint. (Doc. No. 17.) Plaintiffs oppose the motion. (Doc. No. 19.) For the 22 reasons set forth more clearly below, the Court GRANTS Defendant’s motion to dismiss. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 I. BACKGROUND 2 In late 1999, Defendant purchased a manufacturer of artificial hip systems, which 3 were designed starting in 1985. (Doc. No. 14 ¶ 12.) In or about 2000, Defendant made a 4 design change to the original artificial hip system. (Id. ¶ 33.) In late 2000, Defendant 5 received permission from the United States Food and Drug Administration (“FDA”) to 6 distribute one model (“PROFEMUR ‘R’”) of its artificial hip systems. (Id. ¶ 13). Sometime 7 after this, Defendant began to manufacture, market, and distribute various additional 8 products, including the PROFEMUR “Plasma Z” hip system (“PROFEMUR ‘Z’”) that had 9 yet to be considered or cleared by the FDA. (Id. ¶¶ 14, 15, 31). 10 From 2002 to 2005, Defendant made representations through various marketing 11 materials that its PROFEMUR hip systems were “designed in 1985” and implanted in 12 50,000 patients without any clinical failures. (Id. ¶ 32). Marketing also guaranteed 13 “structural reliability” and “absence of fretting corrosion.” (Id. ¶ 32). 14 “Designed in 1985” references the original design that existed prior to the 2000 15 design change. (Id. ¶ 35.) Additionally, Defendant was aware of clinical failures in the 16 original design and knew the root cause of those failures to be fretting and corrosion. (Id. 17 ¶¶ 36, 37.) 18 In 2002, Defendant sent a marketing letter to sale representatives identifying fretting 19 and corrosion as barriers to selling their hip systems to surgeons. (Id. ¶ 38.) The letter 20 instructed representatives to tell surgeons that the systems had been implanted 50,000 times 21 without any clinical failures. (Id. ¶ 39.) 22 In 2008, Plaintiff William Hofer had hip arthroplasty, at which time he had a 23 variation of Defendant’s products, including the PROFEMUR “Z,” implanted by Dr. 24 Jeffrey Marxen. (Id. ¶¶ 67, 68.) In deciding to implant PROFEMUR “Z,” Plaintiffs allege 25 26 27 1 The following facts are taken from Plaintiffs’ First Amended Complaint, (Doc. No. 14), and are construed as true for the limited purpose of resolving the instant motion. See Brown v. Elec. Arts, Inc., 28 1 Dr. Marxen relied upon Defendant's representative’s depictions that PROFEMUR “Z” was 2 FDA cleared and had a good clinical history. (Id. ¶¶ 40, 41.) 3 In 2010, the FDA became aware that the PROFEMUR “Z” was being sold and 4 implanted, and notified Defendant to submit for clearance and cease marketing the system. 5 (Id. ¶ 25.) The FDA later denied the application to market PROFEMUR “Z” due to poor 6 clinical history. (Id. ¶¶ 25, 26.) 7 Plaintiffs allege that in December 2016, Mr. Hofer’s PROFEMUR hip system failed, 8 breaking into pieces. (Id. ¶ 71.) Subsequently, Mr. Hofer had the hip system surgically 9 removed. (Id. ¶ 74.) 10 Plaintiffs allege that Defendant’s PROFEMUR products implanted in Mr. Hofer 11 were inappropriately advertised and unreasonably dangerous for the intended use. (Id. ¶¶ 12 92, 126.) On October 4, 2018, Plaintiffs filed their first amended complaint. (Doc. No. 14.) 13 In the complaint, Plaintiffs allege (1) strict products liability – failure to warn; (2) 14 negligence; (3) negligent misrepresentation; and (4) loss of consortium. (See generally id.) 15 II. LEGAL STANDARD 16 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s 17 complaint and allows a court to dismiss a complaint upon a finding that the plaintiff has 18 failed to state a claim upon which relief may be granted. See Navarro v. Block, 250 F.3d 19 729, 732 (9th Cir. 2001). “[A] court may dismiss a complaint as a matter of law for (1) lack 20 of a cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” 21 SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) 22 (citation and internal quotation marks omitted). However, a complaint will survive a 23 motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on 24 its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this 25 determination, a court reviews the contents of the complaint, accepting all factual 26 allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. 27 Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 28 2007). 1 Notwithstanding this deference, the reviewing court need not accept “legal 2 conclusions” as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for a 3 court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Associated 4 Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 5 (1983). 6 III. DISCUSSION 7 Defendant seeks dismissal only of Plaintiffs’ third claim for negligent 8 misrepresentation on the grounds that the claim fails to satisfy the heightened pleading 9 standard of Federal Rule of Civil Procedure 9(b). (Doc. No. 17-1 at 1.) 10 A. Application of Heightened Pleading to Negligent Misrepresentation Claims 11 Plaintiffs assert that the heightened pleading standard of Rule 9(b) may not apply to 12 a negligent misrepresentation claim as it differs from one of fraud and fraud is not included 13 in the claim’s elements. (Doc. No. 19 at 4.) Although the Ninth Circuit has not decided this 14 issue, this Court has decided: “a claim for negligent misrepresentation must meet the 15 particularity requirement of Rule 9(b).” Moorer v. Stemgenex Med. Grp., Inc., No. 16-CV- 16 2816-AJB-NLS, 2017 WL 1281882, at *9 (S.D. Cal. Apr. 6, 2017); see Monreal v. GMAC 17 Mortg., LLC, 948 F. Supp. 2d 1069, 1078 (S.D. Cal. 2013); Chan v. Chancelor, No. 09- 18 CV-1839-AJB-CAB, 2011 WL 5914263, at *5 (S.D. Cal. Nov. 28, 2011); see also Giglio 19 v. Monsanto Co., No. 15-CV-2279-BTM-NLS, 2016 WL 1722859, at *4 (S.D. Cal. Apr. 20 29, 2016) (“This court falls within the majority of the district courts in California that 21 consider negligent misrepresentation a species of fraud and apply Rule 9(b).”). Therefore, 22 the Rule 9(b) pleading standard applies to Plaintiffs’ claim of negligent misrepresentation. 23 Rule 9(b) requires plaintiffs to “state with particularity the circumstances constituting fraud 24 or mistake.” To satisfy this standard, plaintiffs must identify “the time, place, and content 25 of [the] alleged misrepresentation[s],” as well as the “circumstances indicating falseness” 26 or “manner in which the representations at issue were false and misleading.” In re GlenFed, 27 Inc. Sec. Litig., 42 F.3d 1541, 1547–48 (9th Cir. 1994), superseded by statute on other 28 1 grounds as stated in SEC v. Todd, 642 F.3d 1207 (9th Cir. 2011) (internal quotation marks 2 and modifications omitted). 3 B. Plaintiffs Do Not Satisfy the Pleading Standards for Rule 9(b) 4 Defendant argues that Plaintiff has failed to plead a negligent misrepresentation 5 claim. (Doc. No. 17-1 at 4.) Negligent misrepresentation requires (1) a misrepresentation 6 of a material fact, (2) which is made without reasonable grounds for believing it to be true, 7 (3) with the intent to induce reliance on the misrepresented fact, (4) that justifiable reliance 8 occurs, and (5) resulting damage. See Ragland v. U.S. Bank Nat’l Ass’n, 209 Cal. App. 4th 9 182, 196 (Cal. Ct. App. 2012). In evaluating whether Plaintiffs’ third claim for relief 10 satisfies the heightened standard of Rule 9(b), this Court finds Plaintiffs have not met the 11 requirements, as Plaintiffs have failed to provide the factual particularities regarding the 12 “who, what, when, and how” of a plausible claim for negligent misrepresentation. See 13 Kearns v. Ford Motor Co., 567 F.3d 1120, 1124–25 (9th Cir. 2009) (quoting Vess v. Ciba- 14 Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quotations omitted)). 15 In their complaint, Plaintiffs state that various marketing and promotional materials 16 published and distributed by Defendant were made available to Defendant’s sales 17 representatives and distributors, surgeons, patients and the general public. (Doc. No. 14 ¶ 18 32.) Plaintiffs’ complaint contains a statement from the Wright Medical Technical 19 Monograph MH688-102 © 2004. (Id.) The following is the only specific statement Plaintiff 20 alleges in their First Amended Complaint from the various marketing and promotional 21 materials: 22 The modular neck used with the Profemur Hip has been employed by Wright Cremascoli for over 15 years. The necks 23 were designed in 1985 and have been successfully implanted in 24 over 50,000 patients requiring both primary and revision hip procedures. The necks are used in other Wright Cremascoli hip 25 systems besides the Profemur Hip. None of the necks has 26 experienced a clinical failure since their inception.
27 … 28 1 The modular neck system, designed by Cremascoli in 1985 (U.S. 7 Patent #4,957,510), has now been successfully implanted in over 50,000 patients requiring both primary and revision hip 3 arthroplasty. Extensive laboratory tests have proven that the A coupling between the modular neck and the femoral implant guarantees: 5 e Structural reliability 6 e Absence of significant micromovement e Absence of fretting corrosion 7 8 However, Plaintiffs allege only that Dr. Marxen relied upon the representations that 9 || the PROFEMUR “Z” was properly cleared by the FDA and that it had a good clinical 10 || history. (id. 40.) Plaintiffs do not allege any specific misrepresentation that PROFEMUR 11 had been cleared by the FDA. Further, it is unknown if Dr. Marxen or Plaintiffs relied 12 upon the only specific misrepresentation quoted in Plaintiff’s complaint. Plaintiffs have 13 || failed to allege who made any of these representations, when and where any of the 14 representations were made, and how they were made. Plaintiffs do not allege whether 15 || Plaintiffs or Dr. Marxen were even aware of these statements, whether Plaintiffs or Dr. 16 ||Marxen relied upon written or verbal representations, or how the alleged 17 || misrepresentations affected Dr. Marxen’s decision regarding his selection of the device. 18 || Accordingly, Plaintiffs have failed to satisfy the heightened pleading standard of Rule 9(b). 19 IV. CONCLUSION 20 For the reasons stated above, the Court GRANTS Defendant’s motion to dismiss 21 || with leave to amend. (Doc. No. 17.) The Court GRANTS Plaintiffs twenty-one (21) days 22 the date of this Order to file a second amended complaint curing the deficiencies 23 || noted herein. 24 |/IT IS SO ORDERED. 25 ||Dated: August 20, 2019 26 Cl A ecttae Hon, Anthony J.Battaglia 27 United States District Judge 28