Marrujo v. Boston Scientific Corporation

• Court: District Court, S.D. California
• Decided: July 7, 2020
• Docket: 3:19-cv-01588
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SOCORRO MARRUJO, et al., Case No.: 3:19-cv-01588-AJB-NLS

12 Plaintiffs, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS WITH LEAVE TO AMEND (Doc. No. 19) 14 COLOPLAST CORP., a corporation; and DOES 1-30, inclusive, 15 Defendants. 16

17 18 Before the Court is Defendant Coloplast Corporation’s (“Coloplast”) Motion to 19 Dismiss. (Doc. No. 19.) Coloplast Corporation challenges the sufficiency of several causes 20 of actions in Plaintiff Socorro Marrujo’s (“Mrs. Marrujo”) First Amended Complaint. (Id.) 21 For the reasons stated herein, the Court GRANTS Coloplast’s motion. 22 I. BACKGROUND 23 Mrs. Marrujo brings this products liability action against Coloplast for alleged 24 defects in its Pelvic Mesh Products (the “Products”). (Doc. No. 18 ¶ 1.) This action arises 25 out of the manufacturing and distribution of the Products by Coloplast, the implantation of 26 a Product inside Mrs. Marrujo, and the subsequent damages suffered by Mrs. Marrujo and 27 her husband, Plaintiff Roberto Marrujo (hereinafter “Mr. Marrujo” and collectively with 28 Mrs. Marrujo “Plaintiffs”). (Id.) 1 Around August 2015, a Product was inserted in Mrs. Marrujo to treat “primary 2 pelvic organ prolapse (POP) and stress urinary incontinence.” (Id. ¶ 2.) After the 3 implantation of the Product, Mrs. Marrujo “suffered catastrophic injuries.” (Id. ¶ 43.) 4 Plaintiffs allege that as a result of the implantation, “Mrs. Marrujo and others suffered 5 debilitating injuries including, but not limited to, pudendal neuralgia, catastrophic pain 6 syndrome, extreme pain, erosion, dyspareunia, urinary problems, recurrent incontinence, 7 bowel and bladder dysfunction, loss of mobility and the need for additional surgery.” (Id. 8 ¶ 91.) Mrs. Marrujo alleges that doctors confirmed she suffered from mesh erosion and, 9 around November 2018, she underwent her first mesh removal surgery. (Id. ¶ 2.) 10 Coloplast “designed, manufactured, packaged, labeled, marketed, sold, and 11 distributed” the Products at issue. (Id. ¶ 16.) Plaintiffs allege that the Products “have been 12 and continue to be marketed to the medical community and to patients as safe, effective, 13 reliable, medical devices” despite risks and complications identified in the FDA Safety 14 Communication and the Joint Committee Opinion from the American College of 15 Obstetricians and Gynecologists (“ACOG”) and the American Urogynecologic Society 16 (“AUGS”). (Id. ¶¶ 41, 25.) 17 Plaintiffs allege that Coloplast has failed to disclose known risks with the Products 18 and failed to “warn of known or scientifically knowable dangers and risks associated with 19 the Products, including the magnitude and frequency of these risks.” (Id. ¶ 59.) Plaintiffs 20 assert that Coloplast “failed to provide sufficient warnings and instructions that would have 21 put Mrs. Marrujo, her husband, and the general public on notice of the dangers and adverse 22 effect caused by implantation of the Products.” (Id. ¶ 60.) Plaintiffs contend that 23 Coloplast’s Products were “defective as marketed due to inadequate warning, instructions, 24 labeling and/or inadequate testing in the presence of Defendants’ knowledge of lack of 25 safety.” (Id. ¶ 61.) 26 II. LEGAL STANDARDS 27 A. Rule 12(b)(6) 28 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s 1 complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may dismiss 2 a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient 3 facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal., 4 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint will survive a 5 motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on 6 its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this 7 determination, a court reviews the contents of the complaint, accepting all factual 8 allegations as true and drawing all reasonable inferences in favor of the nonmoving party. 9 See Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 10 (9th Cir. 2007). Notwithstanding this deference, the reviewing court need not accept legal 11 conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for 12 a court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Assoc. 13 Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 14 (1983). However, “[w]hen there are well-pleaded factual allegations, a court should assume 15 their veracity and then determine whether they plausibly give rise to an entitlement to 16 relief.” Iqbal, 556 U.S. at 664. 17 B. Rule 9(b) 18 Federal Rule of Civil Procedure 9(b) requires that the circumstances constituting a 19 claim for fraud be plead with particularity. Rule 9(b) applies not just where a complaint 20 specifically alleges fraud as an essential element of a claim, but also where the claim is 21 “grounded in fraud” or “[sounds] in fraud.” Vess v. Ciba–Geigy Corp. U.S.A., 317 F.3d 22 1097, 1103–04 (9th Cir. 2003). A claim is said to be “grounded in fraud” or “sounds in 23 fraud” where a plaintiff alleges that defendant engaged in fraudulent conduct and relies on 24 solely on that conduct to prove a claim. Id. “In that event, . . . the pleading of that claim as 25 a whole must satisfy the particularity requirement of 9(b).” Id. However, where a plaintiff 26 alleges claims grounded in fraudulent and non-fraudulent conduct, only the allegations of 27 fraud are subject to heightened pleading requirements. Id. at 1104. 28 A pleading is sufficient under Rule 9(b) if it “[identifies] the circumstances 1 constituting fraud so that the defendant can prepare an adequate answer from the 2 allegations.” Walling v. Beverly Enters., 476 F.2d 393, 397 (9th Cir. 1973). This requires 3 that a false statement must be alleged, and that “circumstances indicating falseness” must 4 be set forth. In re GlenFed Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994). Thus, Rule 9(b) 5 requires a plaintiff to identify the “who, what, when, where and how of the misconduct 6 charged,” as well as “what is false or misleading about [the purportedly fraudulent 7 conduct], and why it is false.” Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993, 998 8 (9th Cir. 2010). 9 III. DISCUSSION 10 In its Motion to Dismiss, Coloplast seeks to dismiss Plaintiffs’: (1) second claim 11 based on strict products liability for a manufacturing defect; (2) fourth and fifth claims for 12 breach of express and implied warranty; and (3) seventh, eighth, and ninth claims grounded 13 in fraud. The Court will address each basis for dismissal below. 14 1. Second Claim for Strict Liability for a Manufacturing Defect 15 First, Coloplast argues Plaintiffs fail to meet the pleading standard for a 16 manufacturing defect cause of action because they offer only conclusory statements instead 17 of the underlying facts to state the claim. (Doc. No. 19 at 4.) Plaintiffs do not oppose 18 Coloplast’s motion on this claim. (Doc. No. 23 at 4.) Therefore, the Court GRANTS 19 Coloplast’s Motion to Dismiss this claim WITHOUT LEAVE TO AMEND. 20 2. Fourth and Fifth Claims for Breach of Express and Implied Warranty 21 Coloplast next argues that Plaintiffs’ fourth and fifth claims for breach of express 22 and implied warranty should be dismissed for failure to state a plausible claim for relief. 23 (Doc. No. 19 at 6.) Coloplast alleges that Plaintiffs’ claims for breach of express and 24 implied warranty violate the Twombly/Iqbal pleading standard and Plaintiffs’ First 25 Amended Complaint fails to allege privity between Coloplast and Plaintiffs. (Id. at 6, 9.) 26 Coloplast alleges that paragraphs 96, 97, and 99-101 of Plaintiffs’ First Amended 27 Complaint are recitations of legal conclusions and, without them, Plaintiffs have failed to 28 provide facts that state a plausible claim for breach of express and implied warranty. (Id. 1 at 6.) Coloplast emphasizes that the existence of an express and implied warranty is reached 2 after an analysis of the underlying facts constituting the elements, and that those facts are 3 absent in Plaintiffs’ First Amended Complaint. (Id. at 7.) Additionally, Coloplast argues 4 that privity of contract is a required element for breach of express and implied warranty 5 and that privity does not exist between the patient and manufacturer in the implantable 6 medical product context. (Id. at 9-10.) 7 Plaintiffs argue that their First Amended Complaint, including paragraphs 95-100, 8 states specific allegations to meet the pleading standard for breach of express and implied 9 warranties. (Doc. No. 23 at 4.) Plaintiffs contend that they have made specific allegations 10 in their statement that, “Coloplast made ‘express and implied warranties’ to Plaintiffs and 11 their doctors that the products at issue were ‘safe, effective, fit and proper for their intended 12 uses’ [and] that those warranties were untrue.” (Id.) Further, Plaintiffs argue that they have 13 plead sufficient facts because the First Amended Complaint states that Coloplast marketed 14 the Products “to medical professional and patients, such as Mrs. Marrujo, by making 15 statements and representations warranting the products as ‘safe, effective, reliable medical 16 devices’ and ‘as safer and more effective as compared to available feasible alternative 17 treatments of pelvic organ prolapse and stress urinary incontinence.’” (Id.) Plaintiffs 18 contend that the existence of an express warranty does not have to be reached by an analysis 19 of the underlying facts, instead the discovery process is designed to “ferret out” the 20 underlying facts of an express warranty claim. (Id. at 5.) Further, Plaintiffs argue that, 21 because Mrs. Marrujo purchased the product and claims to have “reasonably relied” on the 22 implied warranty by Coloplast, the privity argument is unavailing. (Id. at 5-6.) 23 a. Breach of Express Warranty 24 First, when taking all factual allegations as true, Plaintiffs have failed to allege 25 sufficient facts to state a plausible claim for relief in establishing the existence of an express 26 warranty. An express warranty is created by: “(a) [a]ny affirmation of fact or promise made 27 by the seller to the buyer which relates to the goods and becomes part of the basis of the 28 bargain creates an express warranty that the goods shall conform to the affirmation or 1 promise,” and “(b) [a]ny description of the goods which is made part of the basis of the 2 bargain creates an express warranty that the goods shall conform to the description.” Cal. 3 Com. Code § 2313. Here, the Court need not consider legal conclusions couched as facts, 4 and, in paragraphs 96 and 97, Plaintiffs present conclusions instead of facts to establish a 5 claim for express warranty. (Doc. No. 18 ¶¶ 96-97.) In order to establish an express 6 warranty Plaintiff must present enough facts to plausibly assert that Coloplast’s statements 7 formed “the basis of the bargain.” But, throughout paragraphs 96 and 97, Plaintiffs 8 summarily conclude that “Coloplast . . . expressly warranted” and “Plaintiffs and Plaintiffs’ 9 physicians reasonably relied,” while failing to present facts that allege Mrs. Marrujo used 10 Coloplast’s statements to form the basis of her decision to use the Product or that she was 11 ever aware of the alleged express warranties. (Doc. No. 18 ¶¶ 96-97.) Under the 12 Twombly/Iqbal pleading standard, the complaint needs only enough facts to state a 13 plausible claim for relief and, here, aside from Plaintiffs’ legal conclusions, there is an 14 inherent lack of facts to allow the Court to plausibly conclude the existence of an express 15 warranty. (Id.) 16 Along the same rationale, Plaintiffs have failed to present facts to adequately plead 17 privity for a breach of express warranty claim. As a general rule, “privity of contract is a 18 required element of a breach of express warranty cause of action.” Tapia v. Davol, Inc., 19 116 F. Supp. 3d 1149, 1160 (S.D. Cal. 2015) (citing Burr v. Sherwin Williams Co., 42 Cal. 20 2d 682, 695 (1954)). There is a clear absence of facts to plausibly conclude that Mrs. 21 Marrujo entered into a contract with Coloplast, that she personally relied on Coloplast’s 22 specific representations in selecting the Product, and how Mrs. Marrujo’s subsequent 23 injuries were correlated to the warranties allegedly made. Therefore, the Court GRANTS 24 Coloplast’s Motion to Dismiss Plaintiffs’ breach of express warranty claim WITH 25 LEAVE TO AMEND to include specific factual allegations as to the elements of an 26 express warranty claim. 27 b. Breach of Implied Warranty 28 Second, the Court agrees with Coloplast in that Plaintiffs have failed to present 1 sufficient facts to state a plausible claim for relief for breach of implied warranty and failed 2 to allege privity between Coloplast and Plaintiffs. Plaintiffs’ legal conclusions that 3 Coloplast “impliedly warranted” that the “Products were of merchantable quality” are not 4 supported by specific factual allegations and, thus, do not meet the Twombly/Iqbal pleading 5 standard for establishing the elements of an implied warranty claim.1 (Doc. No. 18 ¶¶ 99, 6 101.) Further, Plaintiffs’ First Amended Complaint inherently lacks factual allegations to 7 support that Mrs. Marrujo and Coloplast were in privity with one another and, how Mrs. 8 Marrujo read and relied upon warranties made by Coloplast, and not the judgement of her 9 physician. See Blanco v. Baxter Healthcare Corp., 70 Cal. Rptr. 3d 566, 582 (Cal. Ct. App. 10 2008). The Court finds persuasive similarities in Zetz v. Bos. Sci. Corp., 398 F. Supp. 3d 11 700 (E.D. Cal. 2019), where the court further solidified that in order to establish privity in 12 the implantable medical product context, the plaintiff must provide factual allegations that 13 they personally relied on the representations made by the manufacturer and not the 14 physician in selecting and using the product at issue. Indeed, in Zetz, the Court explained: 15 Plaintiffs’ allegations fail to identify any specific representations made by Boston Scientific or any other specific facts that would suggest that Plaintiffs 16 personally relied on Boston Scientific’s representations when selecting and 17 using the Product. . . . Instead, Plaintiffs’ allegations only vaguely state that Plaintiffs relied in some unspecified way on some unspecified representations 18 and unspecified ‘skill, judgment and implied warranty’ of Boston Scientific 19 when selecting and using the Product. . . . This is insufficient under Rule 8 and Iqbal to plead the requisite privity, especially since this is a medical 20 implant lawsuit where there is a strong presumption that Plaintiffs relied on 21 the skill and judgment of the physician, not the manufacturer, to select and use the Product. 22 23 See Zetz, 398 F. Supp. 3d at 709. 24 25 1 For goods to be merchantable, it “must be at least such as: (a) [p]ass without objection in the trade under the contract description; and (b) [i]n the case of fungible goods, are of fair average quality within the 26 description; and (c) [a]re fit for the ordinary purposes for which such goods are used; and (d) [r]un, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among 27 all units involved; and (e) [a]re adequately contained, packaged, and labeled as the agreement may require; and (f) [c]onform to the promises or affirmations of fact made on the container or label if any.” Cal. 28 1 Here, Plaintiffs’ paragraph 100 is identical to the paragraph in Zetz that was ruled 2 insufficient to state a plausible claim for relief for breach of implied warranty. Id. at 712; 3 (Doc. No. 18 ¶ 100.) Therefore, the Court GRANTS Coloplast’s Motion to Dismiss 4 Plaintiffs’ breach of implied warranty claim WITH LEAVE TO AMEND to include 5 specific factual allegations as to the elements of an implied warranty. 6 3. Seventh, Eighth, and Ninth Claims for Fraudulent Concealment, Fraud, 7 and Negligent Misrepresentation 8 Next, Coloplast moves to dismiss Plaintiffs’ claims grounded in fraud for failing to 9 meet the heightened pleading standard required by Rule 9(b). (Doc. No. 19 at 11.) 10 Coloplast claims that Plaintiffs have failed to plead with particularity their causes of action 11 for fraudulent concealment, fraud,2 and negligent misrepresentation3 because they have 12 failed to allege specific factual allegations of the “who, what, when, where, and how of the 13 misconduct charged” and, instead, allege legal conclusions. (Id.) Coloplast argues that 14 Plaintiffs lump Coloplast and DOES 1-30 together and fail to identify the specific persons 15 who they attribute the representations and omissions to. (Id. at 12.) Further, Coloplast 16 argues that Plaintiffs have not satisfied an element of fraudulent concealment because they 17 fail to present facts that establish Coloplast had a duty to disclose to Mrs. Marrujo. (Id. at 18 13.) Coloplast contends that a duty to disclose only arises in a fiduciary or transactional 19 relationship with the plaintiff, and Plaintiffs have failed to present any facts that establish 20 this essential relationship. (Id. at 14.) 21 Plaintiffs argue that, throughout their First Amended Complaint, they have supplied 22 sufficient factual allegations to meet the heightened pleading standard for fraud. (Doc. No. 23

24 2 The elements of a cause of action for intentional misrepresentation are (1) a misrepresentation, (2) with 25 knowledge of its falsity, (3) with the intent to induce another’s reliance on the misrepresentation, (4) actual and justifiable reliance, and (5) resulting damage.” Daniels v. Select Portfolio Servicing, Inc., 246 Cal. 26 App. 4th 1150, 1166 (2016). 3 The elements of negligent misrepresentation are: “(1) a misrepresentation of a past or existing material 27 fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party whom 28 1 23 at 8.) Further, Plaintiffs provide specific facts in their Opposition that they claim meets 2 the “who, what, when, where, and how” standard. (Id. at 9-10.) Plaintiffs contend that a 3 duty to disclose did exist because a physician stands in the shoes of the plaintiff in the case 4 of implants and Coloplast had exclusive and superior knowledge of the defects and failed 5 to disclose. (Id. at 11.) 6 a. Plaintiffs Fail to Comply With Rule 9(b) 7 To plead with particularity under Rule 9(b), a party must plead the “who, what, 8 when, where, and how of the misconduct charged.” Cooper v. Pickett, 137 F.3d 616, 627 9 (9th Cir. 1997). In other words, “the pleader must state the time, place and specific content 10 of the false representations as well as the identities of the parties to the misrepresentation.” 11 Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392-93 (9th Cir. 1988). “Rule 9(b) 12 does not allow a complaint to merely lump multiple defendants together but require[s] 13 plaintiffs to differentiate their allegations when suing more than one defendant . . . and 14 inform each defendant separately of the allegations surrounding his alleged participation 15 in the fraud.” Swartz v. KPMG LLP, 476 F.3d 756, 764-65 (9th Cir. 2007). 16 Plaintiffs have failed to include facts in their First Amended Complaint that assert 17 the “who, when, where, and how” of the fraud, negligent misrepresentation, and fraudulent 18 concealment claims. Plaintiffs’ Opposition provides facts as to how the misrepresentations 19 were disseminated through “documents, patients brochures, and internet websites as well 20 as in-person at medical conferences, hospitals, and private offices” but these facts cannot 21 be found in the First Amended Complaint. (Doc. No. 23 at 10); Schwenk v. Chula Vista 22 Police Dep’t, No. 11-CV-2069-L JMA, 2012 WL 1354055, at *2 n.1 (S.D. Cal. Apr. 18, 23 2012) (holding that any factual allegations found in the opposition but not in the complaint 24 will not be considered) (citing Farr v. United States, 990 F.2d 451, 454 (9th Cir. 1993)). 25 Also, Plaintiffs do not provide any facts or allegations as to when any of the allegedly 26 fraudulent behavior took place in their First Amended Complaint. In Plaintiffs’ First 27 Amended Complaint, the “who” in paragraph 180, “Defendants, their sales wholesalers, 28 distributors representatives, detail persons and other authorized agents,” and the “where” 1 in paragraph 12, “a substantial part of the events and omissions giving rise to Plaintiffs’ 2 causes of action occurred in San Diego County, California,” do not provide clarity as to 3 who perpetuated the different fraudulent claims, where they occurred, and, importantly, 4 how it relates to Mrs. Marrujo and her injuries. (Doc. No. 18 ¶¶ 180, 12.) Further, Plaintiffs 5 fail to differentiate between each party’s participation in the fraud by lumping together 6 Coloplast and DOES 1-30. (Id. ¶¶ 108-184.) 7 Therefore, although Plaintiffs allege compelling scenarios for fraudulent behavior, 8 for example, Coloplast touting their products as “FDA approved” instead of “cleared,” they 9 have included insufficient facts as to the “who, when, where, and how” of each fraudulent 10 activity to meet the heightened pleading standard under 9(b). (Doc. No. 18 ¶ 128.) 11 b. Plaintiffs Fail to Plead the Elements of Fraudulent Concealment, 12 Fraud, and Negligent Misrepresentation 13 Additionally, Plaintiffs have failed to plead with particularity facts that support the 14 elements of fraud and negligent misrepresentation. Specifically, Plaintiffs do not 15 adequately plead that (1) Coloplast acted with intent to induce reliance on the 16 misrepresentations, (2) justifiable reliance on Plaintiffs’ part, and (3) damages. In their 17 First Amended Complaint, Plaintiffs repeat statements in pages 29-47 to plead fraud claims 18 but assert legal conclusions in several paragraphs including but not limited to: 110-112; 19 114-115; 135; 138; 151; 157; 166; 169. (Doc. No. 18.) Plaintiffs fail to allege facts that 20 suggest Mrs. Marrujo was ever aware of or influenced by misrepresentations in Coloplast’s 21 documents, patient brochures, or websites. Nowhere in Plaintiffs’ First Amended 22 Complaint do they specify what product was implanted in Mrs. Marrujo and how 23 Coloplast’s alleged fraudulent behavior was related to the actual product that caused Mrs. 24 Marrujo’s injuries. Throughout Plaintiffs’ First Amended Complaint, they use the plural 25 form of “Products” to describe what was implanted in Mrs. Marrujo, “Mrs. Marrujo had 26 the Products inserted into her body,” but in Plaintiffs’ Opposition they clarify that, “one 27 such product, Coloplast’s Aris Urethral Vaginal Sling . . . was implanted in Mrs. Marrujo 28 . . . .” (Doc. No. 18 ¶ 2; Doc. No. 23 at 1.) Thus, there is a significant lack of particularity 1 in what product is at issue and how Coloplast’s fraudulent behavior surrounding that 2 product is correlated to Mrs. Marrujo’s injuries. 3 Finally, the Court agrees with Coloplast that Plaintiffs have failed to allege facts that 4 establish a fiduciary or transactional relationship that would impose a duty to disclose on 5 Coloplast for fraudulent concealment.4 “There are four circumstances in which 6 nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is 7 in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive 8 knowledge of material facts not known to the plaintiff; (3) when the defendant actively 9 conceals a material fact from the plaintiff; and (4) when the defendant makes partial 10 representations but also suppresses some material facts.” See Deteresa v. Am. Broad. Cos., 11 121 F.3d 460, 467 (9th Cir. 1997) (citation omitted). “The first circumstance requires a 12 fiduciary relationship; each of the other three presupposes the existence of some other 13 relationship between the plaintiff and defendant in which a duty to disclose can arise.” Id. 14 “Such relationships are created by transaction between parties from which a duty to 15 disclose can arise.” Id. Examples of transactional relationships are “seller and buyer, 16 employer and prospective employee, doctor and patient, or parties entering into any kind 17 of contractual agreement” but, here Plaintiffs fail to provide facts that allege any of these 18 relationships. Id. 19 Therefore, the Court GRANTS Coloplast’s Motion to Dismiss Plaintiffs’ claims for 20 fraudulent concealment, fraud, and negligent misrepresentation WITH LEAVE TO 21 AMEND to include specific facts as to the “who, when, where, and how” of the fraud 22 claims and facts that support a duty to disclose for fraudulent concealment. 23 24 25 4 The elements of a cause of action for fraudulent concealment are: “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the 26 plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he 27 did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” Mktg. W., Inc. v. Sanyo Fisher (USA) 28 1 Vv. CONCLUSION 2 For the reasons stated herein, the Court GRANTS Coloplast’s Motion to Dismiss. 3 ||(Doc. No. 19.) The Court DISMISSES WITHOUT LEAVE to amend Plaintiffs’ second 4 ||cause of action for manufacturing defect. The Court DISMISSES WITH LEAVE TO 5 || AMEND Plaintiffs’ fourth and fifth claims for breach of express and implied warranty to 6 |/include specific factual allegations to plausibly assert the elements of each claim. The 7 ||Court also DISMISSES WITH LEAVE TO AMEND Plaintiffs’ seventh, eighth, and 8 ninth fraud-based claims to include facts that support the “who, when, where, and how” of 9 ||the fraud allegations and to assert facts that establish a fiduciary or transactional 10 relationship for a duty to disclose. See Foman v. Davis, 371 U.S. 178, 182 (1962) (stating 11 leave to amend should be freely given in the absence of an apparent reason such as, 12 “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to 13 || cure deficiencies by amendment previously allowed, undue prejudice to the opposing party 14 || by virtue of allowance of the amendment, futility of amendment, etc.”’). 15 Plaintiffs must file an Amended Complaint addressing the deficiencies noted herein 16 July 27, 2020. 17 18 IT IS SO ORDERED. 19 Dated: July 6, 2020 © Ser : 20 Hon. Anthony J.@Battaglia 21 United States District Judge 22 23 24 25 26 27 28 12