Quatela v. Stryker Corp.

• Citation: 820 F.Supp.2d 1045
• Decision Date: 17 December 2010
• Docket Number: No. C 10–03422.,C 10–03422.
• Court: U.S. District Court — Northern District of California
• Parties: Sue QUATELA, Plaintiff, v. STRYKER CORPORATION, et al., Defendants.

820 F.Supp.2d 1045

Sue QUATELA, Plaintiff,

v.STRYKER CORPORATION, et al., Defendants.

No. C 10–03422.

United States District Court, N.D. California,San Francisco Division.

Dec. 17, 2010.

Cynthia Bernet McGuinn, Miles Baker Cooper, Rouda, Feder, Tietjen & McGuinn, San Francisco, CA, for Plaintiff.

Wayne Allen Wolff, David D. Mesa, Sedgwick LLP, San Francisco, CA, Arameh Zargham, Rafael A. Campillo, Sedgwick

LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND DENYING DEFENDANT'S MOTION TO STRIKE

RICHARD SEEBORG, District Judge.

I. INTRODUCTION

In this products liability case, plaintiff Sue Quatela alleges she was injured when her physician implanted a prescription infusion pump following surgery on her shoulder. Quatela's complaint asserts six claims for relief: (1) negligence; (2) strict product liability; (3) breach of express warranty; (4) breach of implied warranty; (5) negligent misrepresentation; and (6) fraudulent concealment. Defendant Stryker Corporation moved to dismiss four of the claims for relief and to strike certain specific allegations.

After the motion was filed, the parties stipulated to permit Quatela to file an amended complaint that addressed one aspect of the motion to strike, which Stryker then withdrew. As the amended complaint is otherwise substantively identical to the original complaint, the motion to dismiss and the balance of the motion to strike will be deemed to be directed at the amended complaint. For the reasons stated below, the motion to dismiss will be granted with leave to amend in part, and without leave to amend in part. The motion to strike will be denied.

II. FACTS

According to the First Amended Complaint (“FAC”), Quatela underwent a left shoulder arthroscopy, synovectomy, and closed manipulation in November of 2002. In connection with that procedure, Quatela's physician inserted a PainPump 2 Day Infusion Set, designed and manufactured by Stryker, into her left shoulder. The pain pump is designed to deliver anesthetic pain medication directly into the glenohumeral joint (the joint connecting the arm to the shoulder) for seventy-two hours immediately following arthroscopic or open shoulder surgery. Quatela alleges that the pain pump was used to infuse Marcaine, a local anesthetic manufactured, promoted and/or distributed by defendants AstraZeneca Pharmaceuticals, LP and AstraZeneca, LP.

Quatela contends that this series of events caused her to develop glenohumeral chondrolysis, which is a progressive destruction of articular cartilage in the glenohumeral joint. This condition results in secondary joint space narrowing, constant pain, and loss of full use of the shoulder and/or arm.

III. MOTION TO DISMISS

A. Legal Standard

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim may be dismissed because of a “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir.2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir.1997). The Court, however, is not required “to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Sci. Sec. Litig., 536 F.3d 1049, 1056–57 (9th Cir.2008). Although they may provide the framework for a complaint, legal conclusions need not be accepted as true and “[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003). Furthermore, courts will not assume that plaintiffs “can prove facts which [they have] not alleged, or that the defendants have violated ... laws in ways that have not been alleged.” Assoc. Gen. Contractors of Calif., Inc. v. Calif. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983).

B. Breach of Express and Implied Warranty

Stryker moves to dismiss the third claim for breach of express warranty and the fourth claim for breach of implied warranty, contending it was not in privity with Quatela. California law once provided that privity of contract was necessary in an action for breach of either express or implied warranty and that no privity existed between the original seller and a subsequent purchaser unconnected to the original sale. Burr v. Sherwin Williams Co., 42 Cal.2d 682, 695, 268 P.2d 1041 (1954). California courts have since recognized an exception to the privity requirement in numerous cases involving foodstuffs, and then more recently, drugs. See Gottsdanker v. Cutter Laboratories, 182 Cal.App.2d 602, 606–607, 6 Cal.Rptr. 320 (1960) (tracing emergence of exception in food cases, and extending it to a vaccine). Quatela argues that the Stryker pain pump—which was used to deliver anesthesia—should be treated like a drug such that, under Gottsdanker, she need not show privity.

The Ninth Circuit has recognized that “California courts have painstakingly established the scope of the privity requirement ... and a federal court sitting in diversity is not free to create new exceptions to it.” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1024 (9th Cir.2008); Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975) (a federal court in a diversity case is not free to “engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.”). Quatela's suggestion that the privity requirement could be dispensed with here is foreclosed by Evraets v. Intermedics Intraocular, Inc. 29 Cal.App.4th 779, 34 Cal.Rptr.2d 852 (1994). In that case, the allegedly defective product was an intraocular lens, surgically implanted into the plaintiff's eye after removal of a cataract. The trial court in Evraets sustained a demurrer to claims based both on express and implied warranties.¹ The appellate court affirmed as to the implied warranty claim, finding the lack of privity to be fatal. In so doing, the court observed:

Evraets did not rely on [the defendants'] judgment that an intraocular device was appropriate for him. Rather, he relied upon his physician's skill or judgment to select or furnish a suitable product. Thus, Evraets cannot sue the manufacturers, suppliers or distributors of the lens on an implied warranty of fitness theory.29 Cal.App.4th at 788, 34 Cal.Rptr.2d 852.

Likewise, Quatela cannot be said to have relied on Stryker's judgment that its product was safe and appropriate for use following her surgery. Rather, she necessarily relied on the judgment of the medical professionals who treated her. Although Quatela argues she should have the right to complain that Stryker inadequately advised those professionals as to the dangers of the product, she is in no different position than the Evraets plaintiff, whose doctor may likewise have relied on the representations of the manufacturer and distributor of the intraocular lens. See also Blanco v. Baxter Healthcare Corp., 158 Cal.App.4th 1039, 1058–59, 70 Cal.Rptr.3d 566 (Cal.Ct.App.2008) (plaintiff was not in privity with heart valve manufacturer because she relied on the skill and judgment of her physician who prescribed defendant's product). Thus, the lack of privity between Quatela and Stryker bars her claim for breach of implied warranty under California law. Because there is no indication that Quatela could allege additional or different facts that would demonstrate privity or some exception thereto, no leave to amend will be granted as to the implied warranty claim.

Quatela's claim based on express warranty, however, is a different matter. As the Evraets court noted, California case law generally has abolished the requirement of privity for express warranty claims. Evraets, 29 Cal.App.4th at 789 n. 4, 34 Cal.Rptr.2d 852 (citing Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965) and Rodrigues v. Campbell Industries, 87 Cal.App.3d 494, 151 Cal.Rptr. 90 (1978)). After concluding that the express warranty claim also was not preempted under federal law, the Evraets court held that the demurrer to that claim should have been overruled. Evraets, 29 Cal.App.4th at 790, 34 Cal.Rptr.2d 852.

It is not entirely clear why, regardless of the existence or non-existence of any privity requirement, the issue raised by the Evraets court regarding the plaintiff's lack of reliance on any representations of the product manufacturer or distributor would not equally apply to the express warranty claim. Indeed, it appears that the earliest California decisions suggesting that privity not be required for express warranty claims did so for the very reason that an end consumer should be entitled to rely on written representations that are communicated to him or her, regardless of where in the supply chain those representations originated. E.g. Burr v. Sherwin Williams Co., supra, 42 Cal.2d at 696, 268 P.2d 1041 (“Another possible exception to the general rule is found in a few cases where the purchaser of a product relied on representations made by the manufacturer in labels or advertising material, and recovery from the manufacturer was allowed on the theory of express warranty without a showing of privity.”).

At this juncture, it is not necessary to determine whether proof of some form of reliance is still required to recover on an express warranty claim under...