Sivilli v. Wright Med. Tech.
| Decision Date | 29 May 2020 |
| Docket Number | Case No.: 3:18-cv-02162-AJB-JLB |
| Parties | VICTOR SIVILLI, Plaintiff, v. WRIGHT MEDICAL TECHNOLOGY, INC., a Delaware corporation; WRIGHT MEDICAL GROUP, INC., a Delaware corporation; WRIGHT MEDICAL GROUP, N.V., a foreign corporation; MICROPORT ORTHOPEDICS, INC., a Delaware corporation; and DOES 1-20, Defendants. |
| Court | U.S. District Court — Southern District of California |
(1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STRIKE; AND
Presently before the Court is Defendants Wright Medical Technology, Inc. ("Wright Medical") and Microport Orthopedics, Inc.'s ("Microport" collectively with Wright Medical, "Defendants") motion to strike and motion to dismiss Plaintiff Victor Sivilli's ("Plaintiff") First Amended Complaint. (Doc. No. 20.) Plaintiff opposed both motions. (Doc. No. 22.) The Court held a hearing on Defendants' motions on December 12, 2019. (Doc. No. 26.) For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion to strike, and GRANTS IN PART AND DENIES IN PART Defendants' motion to dismiss.
This case is a products liability action arising out of the alleged failure of a hip replacement device. (First Amended Complaint ("FAC"), Doc. No. 19 ¶ 1.) Plaintiff claims Defendants have known their hip replacement device—the Profemur Total Hip System—was prone to fail within a few years of implantation despite most hip implant devices typically lasting more than 20 years. (Id.) The Profemur device offers a modular neck component made of cobalt chromium alloy, and Plaintiff alleges Defendants have known the device tends to fracture at the neck of the Profemur device. (Id.)
On July 10, 2007, Plaintiff had a Profemur device implanted by way of a right total hip arthroplasty. (Id. ¶ 73.) Then in January 2014, Defendant Microport acquired Defendant Wright Medical's "OrthoRecon Division," which included Wright Medical's hip/knee division responsible for designing and selling the Profemur neck component. (Id. ¶ 3.) Ted Davis, the previous president of Wright Medical's OrthoRecon business, went on to lead the Microport Orthopedic business. (Id. ¶ 60.) Plaintiff alleges that as part of the January 2014 acquisition of Defendant Wright Medical's OrthoRecon Division, Defendant Microport maintained key personnel previously involved in the marketing, sale, post-market surveillance, complaint tracking, and FDA reporting for the Profemur hip system. (Id. ¶ 61.)
On August 15, 2016, the neck component of the Profemur device allegedly fractured in Plaintiff's hip, and he was taken to the emergency room where he underwent a revision surgery to have the Profemur hip implant system surgically removed. (Id. ¶ 76, 78-79.) Plaintiff alleges he has suffered from unnecessary pain, debilitation, and hospitalization, and was forced to undergo revision surgery because the device was defective and Defendants failed to adequately warn of the dangers of the device. (Id. ¶ 2.)
Plaintiff filed his complaint in the Superior Court of the State of California for the County of San Diego on August 1, 2018. (Doc. No. 1-3.) The case was removed to this Court on the basis of diversity jurisdiction on September 17, 2018. (Doc. No. 1.) OnSeptember 24, 2018, Defendants filed a motion to dismiss, and the Court granted in part, and denied in part Defendants' motion on August 13, 2019. (Doc. Nos. 3, 18.) The Court dismissed Plaintiff's manufacturing defect claim without leave to amend, and dismissed Plaintiff's fraud-related claims with leave to amend. (Doc. No. 18 at 9.) Plaintiff filed his First Amended Complaint on August 26, 2019. (Doc. No. 19.) Remaining in Plaintiff's FAC are claims for relief for: (1) strict products liability for failure to warn, (2) negligence, (3) negligence for failure to recall/retrofit, (4) fraudulent misrepresentation, (5) fraudulent concealment, and (6) negligent misrepresentation. (Id.) On September 9, 2019, Defendants filed a motion to strike and a motion to dismiss Plaintiff's FAC. (Doc. No. 20.) The motion was fully briefed, and the Court held oral argument on December 12, 2019. This order follows.
Defendants request judicial notice of a copy of a letter dated October 23, 2018, sent by Plaintiff's counsel to Defendants' counsel regarding the unknown location of the Profemur hip system that was implanted into, and surgically removed from Plaintiff's body. (Doc. No. 20-2 at 2.) Plaintiff does not oppose the request for judicial notice. Federal Rule of Evidence 201(b) permits judicial notice of a fact when it is "not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Welk v. Beam Suntory Imp. Co., 124 F. Supp. 3d 1039, 1041-42 (S.D. Cal. 2015).
Here, the fact regarding the unknown location of the Profemur hip device is not generally known within this Court's jurisdiction. However, as confirmed at oral argument, it is undisputed that the parties are unaware of the location of the original hip system implanted into, and surgically removed from Plaintiff's body. Additionally, none of the parties question the accuracy or authenticity of the letter. As such, the Court GRANTS Defendants' unopposed request for judicial notice.
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Under Rule 12(f) of the Federal Rules of Civil Procedure, the Court may "strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). In ruling on a motion to strike, just as with a motion to dismiss, the court must view the pleadings in a light most favorable to the nonmoving party. See In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000).
The purpose of a Rule 12(f) motion is "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983) (citation omitted). However, courts often view motions to strike with disfavor, and therefore will not grant a motion to strike "unless the matter to be stricken clearly could have no possible bearing on the subject of the litigation." Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004) (citations omitted); see also Bureerong v. Uvawas, 922 F. Supp. 1450, 1478 (C.D. Cal. 1996). The court should deny the motion to strike if "there is any doubt as to whether the allegations might be an issue in the action." In re 2TheMart. com, 114 F. Supp. 2d at 965 (emphasis in original).
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff's complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "[A] court may dismiss a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient facts under a cognizable legal claim." SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint will survive a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this determination, a court reviews the contents of the complaint, accepting all factual allegations as true and drawing all reasonable inferences in favor of the nonmoving party. See Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9thCir. 2007). Notwithstanding this deference, the reviewing court need not accept legal conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for a court to assume "the [plaintiff] can prove facts that [he or she] has not alleged." Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). However, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 664.
The Court will first address Defendants' motion to strike, and will follow with a discussion of Defendants' motion to dismiss.
Defendants first move to strike all references to manufacturing defects in Plaintiff's FAC. (Doc. No. 20-1 at 8.) In particular, Defendants argues that the references to manufacturing defects circumvents the Court's August 13, 2019 order dismissing Plaintiff's manufacturing defect claim without leave to amend, and essentially adds new manufacturing allegations to the FAC. (Id.)
Rule 12(f) permits the Court to strike from any pleadings any "immaterial matter." Fed. R. Civ. P. 12(f). Such matters are those that have "no essential or important relationship to the claim for relief or the defenses being pleaded, or a statement of unnecessary particulars in connection with and descriptive of that which is material." Rivers v. Cty. of Marin, No. C 05-4251, 2006 WL 581096, at *3 (N.D. Cal. Mar. 7, 2006). The Court will analyze in turn whether each reference to manufacturing defects is to be stricken from the FAC.
Defendants first take issue with Reference #1 in Plaintiff's FAC. (Doc. No. 20-1 at 9.) Reference #1 is nestled in the "First Claim for Relief: Strict Products Liability - Failure To Warn" section of the FAC, and states:
At all times relevant hereto, the PROFEMUR® Total Hip System wasdangerous, unsafe, and defective in manufacture. Such defects included but were not limited to an unreasonably high propensity for corrosion, fretting, and fatigue under normal and expected use of the device, leading to fracture of the modular...
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