Whipple v. C R Bard Incorporated

• Court: District Court, D. Nevada
• Decided: March 30, 2024
• Docket: 2:19-cv-01883
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 TOBIE RACYHELLE WHIPPLE, Case No. 19-cv-01883-RFB-BNW

8 Plaintiff, ORDER

9 v.

10 C.R. BARD, INC., and BARD PERIPHERAL VASCULAR INC., 11 Defendants. 12

13 I. INTRODUCTION 14 Before the Court is the Defendants’ Motion for Summary Judgment. ECF No. 101. For 15 the following reasons, the motion is granted in part and denied in part. 16

17 II. PROCEDURAL BACKGROUND 18 A Master Complaint for Damages for Individual Claims was filed in the case of In Re Bard 19 IVC Filters Product Liability Litigation, 2:15-md-02641, in the United States District Court for 20 the District of Arizona. The Master Complaint includes 17 counts and a request for punitive 21 damages. On August 30, 2016, the Plaintiff filed a Master Short Form Complaint in the United 22 States District Court for the District of Arizona. The Plaintiff also filed a Second Amended Master 23 Short Form Complaint in that district. ECF No. 1. On October 24, 2019, the case was transferred 24 to this Court. ECF No. 6. On March 20, 2023, Plaintiff filed a Third Amended Complaint. ECF 25 No. 100. On March 23, 2023, the Defendants filed the present Motion for Summary Judgment and 26 a Motion in Limine to Exclude the Opinions and Testimony of Plaintiff’s Expert Dr. Daniel 27 Peterson. ECF Nos. 101, 102. On the same day, the Plaintiff filed a Motion in Limine to Exclude 28 1 the Opinions and Testimony of Defendant’s Expert Dr. Jeffrey Kalish. ECF No. 103. 2 On January 11, 2024, the Court held a motion hearing to address the Motion for Summary 3 Judgment, the Motions in Limine and various other motions. However, this hearing was 4 rescheduled as all counsel were not present. ECF No. 123. On February 15, 2024, the Court held 5 the hearing. ECF Nos. 125, 126. 6 At the hearing, the Motions in Limine were denied and Plaintiff Kurt Chistensen was 7 dismissed from the case. Plaintiff’s counsel conceded the claims for negligent misrepresentation, 8 negligence per se, failure to recall, and consortium. Plaintiff’s counsel requested that the Court 9 consider the strict product liability design defect, negligent design defect, failure-to-warn, breach 10 of express warranty, breach of implied warranty, fraudulent misrepresentation, and fraudulent 11 concealment. Plaintiff’s counsel did not articulate any request for the Court to consider the strict 12 product liability manufacturing defect or the consumer fraud claims. The Court considers the 13 identified claims for summary judgment, in turn. 14 15 III. FACTUAL BACKGROUND 16 A. Undisputed Facts 17 Based on its review of the evidence on file, the Court finds the following undisputed facts. 18 The Defendants, C.R. Bard, Inc. and Bard Peripheral Vascular Inc., produce a series of 19 prescription medical filters placed in the inferior vena cava (“IVC”) designed to prevent large 20 blood clots in the deep veins of the body from travelling to the heart or lungs and causing a 21 pulmonary embolism. These filters have struts which anchor in the walls of the IVC. Some of these 22 filters are designed to be permanent and some are temporary and can be removed. 23 On April 9, 2009, Plaintiff Whipple had a retrievable filter, the G2X Filter (the “Filter”), 24 implanted in her IVC to help prevent a potential pulmonary embolism in advance of an upcoming 25 procedure. In March of 2016, Whipple was hospitalized with complaints of nearly a month of 26 nausea, vomiting, shortness of breath, fevers, chills, and other complaints. Testing revealed that 27 Plaintiff had pneumonia and an antibiotic-resistant urinary tract infection. During this 28 hospitalization, imaging was conducted which revealed that the Filter had fractured and one of the 1 Filter’s struts embolized to Plaintiff’s left lung. Plaintiff’s doctor recommended removal of the 2 Filter, but not of the embolized strut. 3 On April 1, 2016, Whipple followed up with a new primary care physician and reported 4 worsening fatigue for about a year and low grade fevers. On April 27, 2016, the Filter was 5 removed. However, the strut remains in her lung. On November 2, 2019, Whipple was diagnosed 6 with Chronic Fatigue Immune Dysfunction Syndrome (“CFS”). 7 B. Disputed Facts 8 Based on the record, the Court finds the following disputed fact. The parties dispute 9 whether the Defendants provided proper warnings of the risks associated with the Filter. 10 11 IV. LEGAL STANDARD 12 Summary judgment is appropriate when the pleadings, depositions, answers to 13 interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no 14 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 15 Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When considering 16 the propriety of summary judgment, the court views all facts and draws all inferences in the light 17 most favorable to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 18 2014). If the movant has carried its burden, the nonmoving party “must do more than simply show 19 that there is some metaphysical doubt as to the material facts …. Where the record taken as a whole 20 could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for 21 trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal quotation marks 22 omitted). It is improper for the Court to resolve genuine factual disputes or make credibility 23 determinations at the summary judgment stage. Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th 24 Cir. 2017) (citations omitted). 25 /// 26 /// 27 /// 28 /// 1 V. DISCUSSION 2 A. Design Defect – Strict Products Liability 3 Count three of Plaintiff’s Complaint puts forth a design defect claim on strict products 4 liability grounds. Generally, the Defendants argue that all of Plaintiff’s claims fail for insufficient 5 evidence of causation because there is no expert evidence that an alleged defect in the Filter caused 6 Plaintiff’s injuries. Specifically, the Defendants argue that this claim fails as a matter of law 7 because the warning provided with the Filter shields the manufacturer from liability, and there is 8 no design which completely avoids the risks associated with the product. The Defendants also 9 argue that Dr. McMeeking opines that an alternative Filter which Bard produces would have been 10 a safer alternative and this argument is prohibited by the MDL Agreement. The Plaintiff counters 11 that she merely needs to show that a safer design was feasible at the time of manufacture and Dr. 12 McMeeking testified as to alternative design features for the Filter she received. 13 A strict product liability claim requires that a plaintiff show that the product had a defect 14 which rendered it unreasonably dangerous, the defect existed at the time the product left the 15 manufacturer, and the defect caused the plaintiff's injury. Fyssakis v. Knight Equip. Corp., 826 16 P.2d 570 (Nev. 1992). In order to impose legal liability, proximate cause must be shown between 17 the design defect of the product and the injury – that is, the plaintiff must show that the design 18 defect in the product was a substantial factor in causing her injury. Price v. Blaine Kern Artista, 19 Inc., 893 P.2d 367, 370 (Nev. 1995). Claims of design defect, for both strict liability and 20 negligence, in Nevada are governed by the consumer-expectation test. See Ford Motor Co. v. 21 Trejo, 402 P.3d 649, 657 (Nev. 2017). 22 Under the consumer-expectation test, a product is defectively designed if it “fail[s] to 23 perform in the manner reasonably to be expected in light of its nature and intended function and 24 [is] more dangerous than would be contemplated by the ordinary user having the ordinary 25 knowledge available in the community.” See id. at 653 (quoting Ginnis v. Mapes Hotel Corp., 470 26 P.2d 135, 138 (Nev. 1970)). A plaintiff may support this claim with evidence regarding alternative 27 designs that were commercially feasible at the time of manufacture, other accidents involving 28 analogous products, post-manufacture design changes, and post-manufacture industry standards. 1 See Ford, 402 P.3d at 657. Also, evidence that a product lacked adequate safety features or that a 2 safer alternative design was feasible at the time of manufacture will support a strict liabilities claim 3 and present a genuine issue of fact. Fyssakis v. Knight Equip. Corp., 826 P.2d 570, 572 (Nev. 4 1992). 5 First, the Court addresses the insufficient evidence of causation argument. In Dr. 6 McMeeking’s assessment of the filter designs, he opines that there are deficiencies in the design 7 of the product wherein the filter is “unstable after implantation … and it is very likely that it will 8 always tilt, except in the rarest circumstance in which the arms perfectly align with the wall of the 9 vena cava ….” He further expounded that the Defendants “did not adhere to professional and 10 industry standards in the engineering activities involved in the conceptualization, design and 11 analysis of the [F]ilter.” And the Defendants “did not use design and analysis methods that 12 conformed to the state of the art in its industry at the time the G2 filter was designed ….” These 13 defects caused migration, perforation, and fracture of the Filter. As a result of this movement of 14 the Filter, Plaintiff had to have the device removed. Dr. Peterson attributes Plaintiff’s chronic 15 fatigue to the retrieval of the Filter. Additionally, Dr. Peterson states that the triggering event for 16 Plaintiff’s CFS was the removal of the Filter. The Court finds that there is a disputed issue of a 17 material fact with regard to causation. 18 Second, the Court addresses the failure as a matter of law argument. As noted, evidence of 19 a safer alternative design that was feasible at the time of the product’s manufacture presents a 20 disputed issue of a material fact. See Fryssakis, 826 P.2d at 572. The Plaintiff’s expert asserts this 21 precise point. Dr. McMeeking asserts that “the design is defective, and it will lead to filter tilt….” 22 He further opines that there were better design features for the Filters that were available at the 23 time they were on the market including a two-tier design, an upper basket configuration, a sheath 24 chamfer, and loop breaks. These are alternative designs that were commercially feasible and 25 present in another Bard filter. The Defendants assert that the MDL advises that Dr. McMeeking’s 26 testimony cannot be used to opine that the alternative filter would have been a safer alternative for 27 any particular plaintiff. This is correct. However, the Court construes Plaintiff’s position to be 28 highlighting the alternative designs which were available to the Defendants. Thus, the Court allows 1 Plaintiff’s arguments. Moreover, viewing these arguments in the light most favorable to the 2 Plaintiff, the Court finds that there is a genuine dispute of a material fact. 3 Accordingly, summary judgment is denied with regard to the strict product liability design 4 defect cause of action. 5 B. Design Defect – Negligence 6 Plaintiff’s fourth cause of action puts forth a design defect claim on negligence grounds. 7 As mentioned, the Defendants argue that all claims fail for lack of causation evidence. Specifically, 8 the Defendants argue that this claim fails as a matter of law because the warnings provided shields 9 the manufacturer from liability. The Plaintiff responds that Dr. McMeeking identified alternative 10 design features which would have improved the safety of the G2X Filter and the product warnings 11 did not identify all of the issues experienced by the Plaintiff. 12 In order to bring a negligence claim, a plaintiff must show that the defendant had a duty to 13 exercise due care towards the plaintiff; the defendant breached the duty; the breach was an actual 14 cause of the plaintiff’s injury; the breach was the proximate cause of the injury; and the plaintiff 15 suffered damage. See Perez v. Las Vegas Medical Center, 805 P.2d 589 (Nev. 1991). In order to 16 impose legal liability, proximate cause must be shown between the design defect of the product 17 and the injury – that is, the plaintiff must show that the design defect in the product was a 18 substantial factor in causing her injury. Price v. Blaine Kern Artista, Inc., 893 P.2d 367, 370 (Nev. 19 1995). Claims of design defect, for both strict liability and negligence, in Nevada are governed by 20 the consumer-expectation test. See Ford Motor Co. v. Trejo, 402 P.3d 649, 657 (Nev. 2017). 21 Under the consumer-expectation test, a product is defectively designed if it “fail[s] to 22 perform in the manner reasonably to be expected in light of its nature and intended function and 23 [is] more dangerous than would be contemplated by the ordinary user having the ordinary 24 knowledge available in the community.” See id. at 653 (quoting Ginnis v. Mapes Hotel Corp., 470 25 P.2d 135, 138 (Nev. 1970)). A plaintiff may support this claim with evidence regarding alternative 26 designs that were commercially feasible at the time of manufacture, other accidents involving 27 analogous products, post-manufacture design changes, and post-manufacture industry standards. 28 See Ford at 657. Warnings do shield manufacturers from liability unless the defect could have 1 been avoided by a commercially feasible change in design that was available at the time of 2 manufacture. See Robinson v. G.G.C., Inc., 808 P.2d 522, 525 (Nev. 1991). 3 First, the Court addresses Defendant’s lack of causation evidence argument. The same 4 analysis presented in the design defect under strict liability section applies here. Thus, this 5 argument fails. Second, the Court addresses the argument that this claim fails as a matter of law. 6 In this case, the warnings do not wholly shield the Defendants from liability. As detailed in the 7 prior section, Dr. McMeeking provided testimony regarding the multiple ways in which the Filter’s 8 defects could have been avoided using design changes that were available at the time of 9 manufacture. 10 Accordingly, summary judgment is denied with regard to the negligent design defect cause 11 of action. 12 C. Failure-to-Warn 13 Plaintiff’s seventh cause of action puts forth a failure-to-warn claim. In addition to the lack 14 of causation argument, Defendants assert that this claim fails as a matter of law because Nevada 15 follows the learned-intermediary doctrine and the duty was to warn the physician, not the patient, 16 and Plaintiff cannot show any failure caused her injuries. The Plaintiff counters that the Defendants 17 failed to properly warn the physician of the complications associated with its product. 18 In order to bring a failure-to-warn claim, the Plaintiff must demonstrate the same elements 19 as in other strict product liability cases. See Motor Coach Indus. v. Khiabani, 493 P.3d 1007, 1011 20 (Nev. 2021) (quoting Rivera v. Philip Morris, Inc., 209 P.3d 271, 275 (2009)) (quotation marks 21 omitted). She must show that the product had a defect which rendered it unreasonably dangerous, 22 the defect existed at the time the product left the manufacturer, and the defect caused the plaintiffs 23 injury. Id. The lack of warning functions as the relevant defect. Id. Strict liability may be imposed 24 even though the product is faultlessly made if it was unreasonably dangerous to place the product 25 in the hands of the user without suitable and adequate warning concerning safe and proper use. Id. 26 at 1011-12 (quoting Lewis v. Sea Ray Boats, Inc., 65 P.3d 245, 249 (2003)) (quotation marks 27 omitted). The burden of proving causation can be satisfied in failure-to-warn cases by 28 demonstrating that a different warning would have altered the way the plaintiff used the product 1 or would have prompted the plaintiff to take precautions to avoid the injury. Id. at 1012 (quoting 2 Rivera, 209 P.3d at 275) (quotation marks omitted). Nevada law requires that warnings adequately 3 communicate any dangers that may flow from the use or foreseeable misuse of a product. Yamaha 4 Motor Co., U.S.A. v. Arnoult, 955 P.2d 661 (Nev. 1998). Liability may be established in situations 5 where the defendant has reason to anticipate that danger may result from a particular use of their 6 product and fails to warn adequately of such a danger. Id. The product sold without a warning is 7 in a defective condition. Id. 8 Historically, the learned-intermediary doctrine has been allowed under Nevada law to 9 insulate drug manufacturers from liability in products-liability lawsuits. Klasch v. Walgreen Co., 10 264 P.3d 1155, 1158 (Nev. 2011) (en banc). Under the learned-intermediary doctrine, a drug 11 manufacturer is immune from liability to a patient taking the manufacturer’s drug so long as the 12 manufacturer has provided the patient's doctor with all relevant safety information for that drug. 13 Id. At this time, the Nevada Supreme Court has adopted this doctrine in only one circumstance 14 holding that a pharmacist does not owe a duty to warn a customer of a medication’s generalized 15 risks because the physician who prescribed the medication is in the best position to do so. Id. at 16 1158-59. The state has neither adopted nor rejected the doctrine in the context of a medical device 17 manufacturer in a strict products liability failure-to-warn case. Therefore, this Court must predict 18 how the Nevada Supreme Court would decide on this issue. See Orkin v. Taylor, 487 F.3d 734, 19 741 (9th Cir. 2007) (“The task of a federal court in a diversity action is to approximate state law 20 as closely as possible in order to make sure that the vindication of the state right is without 21 discrimination because of the federal forum.”). In making this determination, the Court may rely 22 upon intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, 23 and restatements as guidance. Assurance Co. of Am. v. Wall & Assocs. LLC of Olympia, 379 F.3d 24 557, 560 (9th Cir. 2004). 25 In Klasch, the court explained that the doctor is in the best position to warn the customer 26 of a given medication's generalized risks. 264 P.3d at 1159. Similar to the position of the 27 pharmacist, a medical device manufacturer is not in the best position to determine whether its 28 device is appropriate for a specific patient. Additionally, this district court has found the doctrine 1 to apply in other similar product liability cases. See, e.g., Flores v. Merck & Co., No. 3:21-cv- 2 00166-MMD-CLB, 2022 U.S. Dist. LEXIS 46442 (D. Nev. Mar. 16, 2022); Flowers v. Eli Lilly 3 & Co., Case No. 3:14-cv-00094-LRH-VPC, 2015 U.S. Dist. LEXIS 91298, 2015 WL 12622058, 4 at *2-*3 (D. Nev. July 10, 2015); Phillips v. C.R. Bard, Inc., Case No. 3:12-cv-00344-RCJ-WGC, 5 2014 U.S. Dist. LEXIS 174506, 2014 WL 7177256, at *9 (D. Nev. Dec. 16, 2014). Hence, this 6 Court predicts that the Nevada Supreme Court would apply the learned-intermediary doctrine in 7 this case. 8 First, the Court addresses the lack of causation evidence argument. Dr. Hansen indicates 9 that if he had been warned of additional issues with the Filter, he would have elected to place 10 Plaintiff in a surveillance program. This disputed evidence creates a genuine issue of disputed fact 11 that a different warning would have prompted him to take precautions to avoid the injury. See 12 Motor Coach Indus. v. Khiabani, 493 P.3d 1007, 1012 (Nev. 2021). Therefore, Defendant’s 13 argument fails. 14 Second, the Court addresses the argument that this claim fails as a matter of law. As noted, 15 under the learned-intermediary doctrine, a drug manufacturer is immune from liability to a patient 16 taking the manufacturer's drug so long as the manufacturer has provided the patient's doctor with 17 all relevant safety information for that drug. Klasch v. Walgreen Co., 264 P.3d 1155, 1158 (Nev. 18 2011) (en banc). In this case, Dr. Hansen identified several different areas of safety information, 19 relevant in determining whether the Filter would be appropriate for a patient, of which he was not 20 made aware. These areas included the caudal migration, risk of fracture, and tilt. The Court thus 21 finds that there is a genuine issue of a material fact. 22 Accordingly, summary judgment is denied as to the failure-to-warn cause of action. 23 D. Breach of Express Warranty 24 Plaintiff’s tenth cause of action puts forth a breach of express warranty claim. The 25 Defendants argue that Plaintiff does not have evidence of causation or evidence of privity among 26 the parties. The Plaintiff responds that she is not required to prove vertical privity. 27 /// 28 /// 1 In order to bring a breach of warranty claim, a plaintiff must show that a warranty existed, 2 the defendant breached the warranty, and the defendant’s breach was the proximate cause of the 3 loss sustained. Nev. Contract Servs. v. Squiress Cos. Inc., 68 P.3d 896 (Nev. 2003). 4 NRS Section 116.4113 sets forth the ways in which an express warranty can be created 5 between a seller and a purchaser, and then transferred to subsequent purchasers. Allied Fid. Ins. 6 Co. v. Pico, 656 P.2d 849 (Nev. 1983). Section 116.4113, the statute which details the express 7 warranty, states that: 8 Express warranties made by any seller to a purchaser of a unit, if relied upon by the purchaser, are created as follows: 9 (a) Any affirmation of fact or promise that relates to the unit, 10 its use or rights appurtenant thereto, improvements to the common- interest community that would directly benefit the unit or the right 11 to use or have the benefit of facilities not located in the common- interest community creates an express warranty that the unit and 12 related rights and uses will conform to the affirmation or promise. 13 The plain language of Section 116.4113 requires that the creation of an express warranty 14 be made by the seller to a purchaser. Allied holds that, under this section, actual reliance on an 15 express warranty is not a prerequisite for breach of warranty, as long as the express warranty 16 involved became a part of the bargain. 17 While Nevada does not require vertical privity in actions for personal or property injury 18 caused by defective products, it still requires the horizontal privity mandated by statute. Zaika v. 19 Del E. Webb Corp., 508 F. Supp. 1005, 1012 (1981) (citing Hiles Co. v. Johnston Pump Co. of 20 Pasadena, 560 P.2d 154, 157 (Nev. 1977)); Amundsen v. Ohio Brass Co., 513 P.2d 1234 (Nev. 21 1973); Long v. Flanigan Warehouse Co., 382 P.2d 399 (Nev. 1963)). 22 Vertical privity is privity between all parties in the distribution chain from the initial 23 supplier of the product to the ultimate purchaser or end user. Horizontal privity describes the 24 relationship between the original supplier and a non-purchasing party who is affected by the 25 product, such as the family of the ultimate purchaser or a bystander. For horizontal privity the 26 injured party is trying to place himself in the position of the buyer and take advantage of warranties 27 made to the buyer. Hiles Co. v. Johnston Pump Co., 560 P.2d 154, fn. 5 (Nev. 1977) (citing 28 Nordstrom, Sales § 91 at 282-83 (1970)). Nevada still requires horizontal privity to recover 1 economic damages for breach of warranty. Mandeville v. Onoda Cement Co., 67 F. App'x 417 2 (9th Cir. 2003). 3 Here, Plaintiff does not present any arguments that it has any evidence of the required 4 horizontal privity. Instead, she relies upon the case of Vacation Village to assert that she does not 5 have to allege this type of privity. Vacation Vill. v. Hitachi Am., 874 P.2d 744 (Nev. 1994). 6 Plaintiff asserts that through this case, the Nevada Supreme Court adopted strict liability in tort for 7 persons injured by defectively manufactured or designed products, whether they injured party was 8 in privity with the seller or not. In this manufacturer warranty case, the Nevada Supreme Court 9 determined that a lack of vertical privity between the buyer and manufacturer does not preclude 10 an action against the manufacturer for the recovery of economic losses caused by breach of 11 warranties. Id. at 747 (quoting Hiles Co. v. Johnston Pump Co., 560 P.2d 154, 157 (1977)) 12 (quotation marks omitted). However, this does not relieve Plaintiff of her duty to show evidence 13 of horizontal privity. 14 Accordingly, summary judgment is granted with regard to the breach of express warranty 15 cause of action. 16 E. Breach of Implied Warranty 17 Plaintiff’s eleventh cause of actions puts forth a breach of implied warranty claim. The 18 Defendants argue that Plaintiff has no evidence of causation or privity between the parties, and 19 that Plaintiff did not notify the Defendants of the breach as required by Nevada law. The Plaintiff 20 counters that she does not need to prove vertical privity. 21 The Court finds that its previous reasoning and holding as to the breach of warranty claim 22 apply with equal force to the breach of implied warranty claim. Accordingly, summary judgment 23 is granted with respect to the breach of implied warranty cause of action. 24 F. Fraudulent Misrepresentation 25 Plaintiff’s twelfth cause of action puts forth a fraudulent misrepresentation claim. The 26 Defendants assert that this claim is merely a repackaged failure-to-warn claim; and Plaintiff fails 27 to show evidence of reliance and causation. Additionally, this tort is only available for those 28 suffering pecuniary injury in the context of a business transaction. 1 In order to bring a fraudulent misrepresentation claim, a plaintiff must show (1) a false 2 representation made by the defendant; (2) defendant's knowledge or belief that the representation 3 is false (or insufficient basis for making the representation); (3) defendant's intention to induce the 4 plaintiff to act or to refrain from acting in reliance upon the misrepresentation; (4) plaintiff’s 5 justifiable reliance upon the misrepresentation; and (5) damage to the plaintiff resulting from such 6 reliance. Guilfoyle v. Olde Monmouth Stock Transfer Co., 335 P.3d 190, 197 (2014) (citing 7 Bulbman, Inc. v. Nev. Bell, 825 P.2d 588, 592 (1992)). This claim requires a showing of damages 8 caused by reliance or concealment. Guilfoyle, 335 P.3d at 197. 9 First, the Court addresses the issue of reliance. Defendants argue that there is no evidence 10 that the Plaintiff or Dr. Hansen relied upon any representations by Bard. However, Dr. Hansen 11 explained that he read the product warnings associated with the Filter before he began to use those 12 devices. Dr. Hansen noted that if he had been aware of additional concerns about the Filter he 13 would have selected an alternative. Additionally, the Plaintiff indicates that she relied on 14 information provided by Dr. Hansen as it related to the Filter. This presents a triable issue of a 15 material fact. 16 Second, the Court addresses the repackaging arguments. The Defendants cite to no binding 17 authority in their argument that the fraudulent misrepresentation claim is merely a repackaged 18 failure-to-warn claim. Instead, they assert that the learned-intermediary doctrine applies and these 19 claims should be subsumed by the strict liability claims. The Court finds this position 20 unpersuasive. 21 Third, the Court addresses the business transaction argument. The Defendants argue that 22 this claim is only available in the context of a business transaction. Nevada has adopted the 23 definition of negligent misrepresentation provided in the Second Restatement of Torts: 24 One who, in the course of his business, profession or employment, or in any other action in which he has a pecuniary 25 interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused 26 to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or 27 communicating the information. 28 Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1387 (Nev. 1998); see also Restatement (Second) of 1 Torts § 522. 2 While the Nevada Supreme Court has found that the tort of negligent misrepresentation 3 applies “only to business transactions,” the rule does not require that the business transaction be 4 between the supplier of the false information and those justifiably relying on the information. 5 Antonacci v. Sparks, No. 2:14-cv-01876-LDG-CWH, 2016 U.S. Dist. LEXIS 35346 (D. Nev. Mar. 6 17, 2016) (citing Barmettler, 956 P.2d at 1387). This claim merely requires that the defendant 7 supplied the information as part of “his business, profession or employment, or in any other 8 transaction in which he has a pecuniary interest,” and that the information reach “the person or one 9 of a limited group of persons for whose benefit and guidance” the information is supplied. 10 Restatement (Second) of Torts § 552. Here, the warnings provided by the Defendants were 11 provided as part of their business and the information was relied upon by both the treating 12 physician and the patient. Thus, this claim can proceed in this case. 13 Accordingly, summary judgment is denied with regard to the negligent misrepresentation 14 cause of action. 15 G. Fraudulent Concealment 16 Plaintiff’s thirteenth cause of action puts forth a fraudulent concealment claim. The 17 Defendant argues that this is a repackaged failure-to-warn claim and there was no reliance on the 18 Defendant’s representations. 19 In order to bring a fraudulent concealment claim, a plaintiff must show that (1) the 20 defendant concealed or suppressed a material fact; (2) the defendant must have been under a duty 21 to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or 22 suppressed the fact with the intent to defraud the plaintiff, that is, he must have concealed or 23 suppressed the fact for the purpose of inducing the plaintiff to act differently than he would if he 24 knew the fact; (4) the plaintiff must have been unaware of the fact and would not have acted as he 25 did if he had known of the concealed or suppressed fact; and, finally, (5) as a result of the 26 concealment or suppression of the fact, the plaintiff must have sustained damages. Dow Chem. 27 Co. v. Mahlum, 970 P.2d 98 (Nev. 1998). 28 The Court finds that its reasoning with respect to fraudulent misrepresentation applies with equal force here. Accordingly, summary judgment is denied as to the fraudulent concealment claim. 3 VI. CONCLUSION 4 IT IS THEREFORE ORDERED that the Defendants’ Motion for Summary Judgment 5 | [ECF No. 101] is GRANTED in part and DENIED in part. 6 Summary judgment is granted as to Count 10 (Breach of Express Warranty) and Count 11 7 | (Breach of Implied Warranty). These claims are dismissed. Summary judgment is denied as to 8 | Count 3 (Strict Products Liability - Design Defect), Count 4 (Negligence — Design Defect), and Count 7 (Negligence — Failure to Warn), Count 12 (Fraudulent Misrepresentation), and Count 13 10 | (Fraudulent Concealment). 1] 12 DATED: March 30, 2024 13 ‘ 14 CTS 16 RICHARD F. BOULWARE, Il 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28

-14-