Boyer v. Abbott Vascular, Inc.
| Docket Number | 23-cv-00838-AGT |
| Decision Date | 29 June 2023 |
| Parties | REBECCA S BOYER, et al., Plaintiffs, v. ABBOTT VASCULAR INC., Defendant. |
| Court | U.S. District Court — Northern District of California |
ORDER ON MOTION TO DISMISS RE: DKT. NO. 52
Abbott Vascular has moved to dismiss in part Rebecca Boyer's first amended complaint. For the reasons that follow, the Court will grant the motion with leave to amend.
1. Choice of Law. Based on what Boyer has alleged, the Court concludes that her claims are governed by Virginia law not California law. Her claims arise from the tragic death of her husband, Roy Boyer, following heart surgery. During the surgery, the distal portion of a coronary dilatation catheter broke and got stuck in Roy's artery. Attempts to remove the catheter were unsuccessful and Roy passed ten days after the surgery. See Dkt. 42, FAC ¶¶ 2, 9-18.
Virginia's interest in Boyer's claims is significant. Roy was a resident of Virginia, and the surgery that resulted in his death occurred in Virginia. See FAC ¶¶ 1 9. “Virginia, like every other state, has a keen interest in regulating conduct by imposing liability for harm occurring within its borders.” Hamilton v. Accu-Tek, 47 F.Supp.2d 330, 345-46 (E.D.N.Y. 1999).
California also has an interest in Boyer's claims. Abbott Vascular the maker of the catheter, has its principal place of business in California. See FAC ¶ 4. California has “an interest in deterring unlawful conduct by its companies.” Hillard v. TABC, Inc., 2017 WL 6940540, at *6 (C.D. Cal. Dec. 18, 2017). Even so, California's connection to the claims isn't as strong as Virginia's. The complaint doesn't allege that the catheter was designed in, or manufactured in, California. It is thus possible that none of the events giving rise to the claims (e.g., negligent design, negligent manufacturing, failure to warn) occurred in California.[1]
California's interest is outweighed by Virginia's. “California courts have tended to apply the law of the place of the injured's domicile, finding that state has the greatest interest.” Vieira v. Mentor Worldwide, LLC, 392 F.Supp.3d 1117, 1130-31 (C.D. Cal. 2019) (simplified). And California's interest in applying its laws is reduced when, as here, the defendant's tortious conduct isn't linked to California. See McCann v. Foster Wheeler LLC, 48 Cal.4th 68, 99 (2010) (). The Court will apply Virginia law.
2. Strict Product Liability. Under Virginia law, Boyer's strict product liability claim cannot proceed. “[T]he doctrine of strict liability . . . is not recognized in Virginia.” Harris v. T.I., Inc., 243 Va. 63, 71 (1992). This claim is dismissed.
3. Negligence. Boyer's negligence claim will also be dismissed to the extent the claim is based upon (i) a failure to warn Roy, (ii) a failure to warn Roy's doctors, or (iii) a failure to recall the catheter. Abbott Vascular had no duty to warn Roy directly about the catheter's risks. “Under the Learned Intermediary Doctrine, manufacturers of prescription medical products have a duty only to warn physicians, rather than patients, of the risks associated with the use of the product.” Talley v. Danek Medical, Inc., 7 F.Supp.2d 725, 730 (E.D. Va. 1998). Abbott Vascular also had no duty under Virginia law to recall the catheter. “Virginia law does not recognize a duty to recall.” Powell v. Diehl Woodworking Machinery, Inc., 198 F.Supp.3d 628, 634 (E.D. Va. 2016).
As for warning Roy's doctors, Abbott Vascular had a duty to warn them about the catheter's risks, but Boyer hasn't plausibly alleged that Abbott Vascular breached that duty. Boyer alleges that Abbott Vascular gave “inadequate . . . warnings,” FAC ¶ 31, but this is a legal conclusion. She hasn't identified the warnings that were given or explained why the warnings were deficient. “A plaintiff's pleadings are insufficient when they do not identify the warning that her doctor received [or] allege how it was inadequate ....” Marrufo v. Ethicon, Inc., 2020 WL 7680562, at *3 (W.D. Tex. Nov. 20, 2020). The negligence claim is dismissed in part.[2]
4. Implied Warranty. To the extent that Boyer's implied warranty claim is based on a design-defect theory, the claim will be dismissed. Abbott Vascular maintains that such a theory is barred by comment k to the Restatement (Second) of Torts § 402A. Boyer hasn't suggested otherwise. Instead, she notes that “comment k only applies to claims of implied warranty under theories of design defect,” not under theories of manufacturing defect or failure to warn. Opp'n, Dkt. 55 at 12 (emphasis omitted). The Court grants Abbott Vascular's motion to dismiss the implied warranty claim insofar as the claim is based on a design-defect theory.[3]
5. Express Warranty. The Court also grants Abbott Vascular's motion to dismiss Boyer's express warranty claim. To plead this claim, Boyer must identify the “specific warranties” that Abbott Vascular made. Porter v. DePuy Orthopaedics, Inc., 2019 WL 3979656, at *10 (E.D. Va. Aug. 6, 2019). She hasn't done so. She alleges only generally that Abbott Vascular “made express warranties regarding the Catheter and its component parts,” and that in “reliance upon such warranties, Johnston Memorial Hospital purchased and employed [the] Catheter to perform a coronary catheterization.” FAC ¶¶ 41-42. “[Boyer's] failure to identify any specific statements upon which an express warranty could be based dooms the claim.” Bell v. True Mfg. Co., 2020 WL 10095356, at *4 (E.D. Va. Sept. 16, 2020).
6. Survival. Boyer's survivorship claim will also be dismissed. There is no survivorship cause of action in Virginia. Rather, a “survivorship action . . . defers to the wrongful death statute as the exclusive statement of the grievances that Virginia will recognize when a tort victim dies of his or her injuries.” Smith v. Town of S. Hill, 2020 WL 1324216, at *28 (E.D. Va. Mar. 20, 2020) (simplified). Abbott Vascular's motion to dismiss the survivorship claim is granted.
7. Wrongful...
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