Warnshuis v. Bausch Health U.S., LLC

• Decision Date: 18 June 2020
• Docket Number: CASE NO. 1:19-CV-1454 AWI BAM
• Parties: PATRICK WARNSHUIS, Plaintiff v. BAUSCH HEALTH U.S., LLC f/k/a Valeant Pharmaceuticals North America, LLC, et al., Defendants
• Court: U.S. District Court — Eastern District of California

PATRICK WARNSHUIS, Plaintiff v. BAUSCH HEALTH U.S., LLC f/k/a Valeant Pharmaceuticals North America,LLC, et al., Defendants

CASE NO. 1:19-CV-1454 AWI BAM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

June 18, 2020

ORDER ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S MOTION TO AMEND

(Doc. Nos. 21, 26)

This is a products liability case brought by Plaintiff Patrick Warnshuis ("Warnshuis") against the manufacturer, distributor, and seller of "Ocean Saline Nasal Spray." The matter was removed from the Fresno County Superior Court. In the Second Amended Complaint ("SAC"), Warnshuis alleges state law claims for strict products liability, negligent products liability, and breach of warranty. Currently before the Court is Defendant Bausch Health U.S., LLC's ("Bausch") motion to dismiss and Warnshuis's motion to amend. For the reasons that follow, Bausch's motion will be granted in part and denied in part, and Warnshuis's motion will be granted in part.

BACKGROUND

From the Complaint, in August 2018, Warnshuis bought Ocean Saline Nasal Spray through Defendant Amazon.com, LLC and Amazon.com, Inc. (collectively "Amazon"). After using the nasal spray, Warnshuis began suffering chronic and unexplained sinus infections that would not respond to treatment.

In September 2018, Warnshuis received a recall letter that the nasal spray that he had purchased through Amazon could have microbial contamination, namely the bacteria pseudomonas aeruginosa.

Warnshuis continued to suffer sinus infections. Subsequent culture tests returned positive results for pseudomonas aeruginosa bacterial infections. The bacterial infections have caused and continue to cause Warnshuis serious injury and damages.

I. DEFENDANT'S MOTION TO DISMISS

Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "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. See Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). In reviewing a complaint under Rule 12(b)(6), all well-pleaded allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Kwan v. SanMedica, Int'l, 854 F.3d 1088, 1096 (9th Cir. 2017). However, complaints that offer no more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Johnson v. Federal Home Loan Mortg. Corp., 793 F.3d 1005, 1008 (9th Cir. 2015). The Court is "not required to accept as true allegations that contradict exhibits attached to the Complaint or matters properly subject to judicial notice, or allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Seven Arts Filmed Entm't, Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013). To avoid a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678; Mollett, 795 F.3d at 1065. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678; Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). "Plausibility" means "more than a sheer possibility," but less than a probability, and facts that are "merely consistent" with liability fallshort of "plausibility." Iqbal, 556 U.S. at 678; Somers, 729 F.3d at 960. The Ninth Circuit has distilled the following principles for Rule 12(b)(6) motions: (1) to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively; (2) the factual allegations that are taken as true must plausibly suggest entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014). If a motion to dismiss is granted, "[the] district court should grant leave to amend even if no request to amend the pleading was made . . . ." Ebner v. Fresh, Inc., 838 F.3d 958, 962 (9th Cir. 2016). However, leave to amend need not be granted if amendment would be futile or the plaintiff has failed to cure deficiencies despite repeated opportunities. Garmon v. County of L.A., 828 F.3d 837, 842 (9th Cir. 2016).

1. First Cause of Action - Strict Products Liability - Manufacturing Defect Defendant's Argument

Bausch argues that the strict products liability cause of action should be dismissed for three reasons. First, the cause of action contains many allegations that are made on "information and belief," but no underlying facts are identified that support the belief. Second, Bausch argues that the complaint lumps it together with other defendants without adequately differentiating the specific conduct of Bausch that is at issue. Third, the Complaint does not plausibly allege a strict liability claim. The allegations do not identify an actual manufacturing defect, do not identify the required information for a "consumer expectations" or "risk-benefit" design defect theory, and do not explain how any warnings were inadequate.

Plaintiff's Opposition

Warnshuis argues that Bausch is attempting to require the pleading of evidentiary facts, which is not necessary. The allegations are based on his experience with the nasal spray and his medical experiences, and those experiences serve as the foundation for the allegations made. For example, Warnshuis states that he received a recall notice, so it can reasonably be implied that Bausch was required to send a recall notice by the FDA.

Warnshuis also argues that the allegations do not improperly lump Bausch with other defendants. In fact, the SAC properly alleges which claims are alleged against which defendants, including Bausch.

Finally, Warnshuis argues that a manufacturing defect has been properly pled. There is a specific allegation that the nasal spray was contaminated with microbial contamination.

Discussion

a. Plausible Strict Liability Claim¹

Generally, a "manufacturing or production defect is readily identifiable because a defective product is one that differs from the manufacturer's intended result or from other ostensibly identical units of the same product line." Barker v. Lull Engineering Co., 20 Cal.3d 413, 429 (1978); In re Coordinated Latex Glove Litigation, 99 Cal. App. 4th 594, 605 (2002). The "manufacturing defect" theory posits that "a suitable design is in place, but that the manufacturing process has in some way deviated from that design." In re Coordinated Latex, 99 Cal.App.4th at 613. That is, "the product does not conform to the manufacturer's design." Garrett v. Howmedica Osteonics Corp., 214 Cal.App.4th 173, 190 (2013). The elements of a manufacturing defect claim are: (1) a product was manufactured, distributed, or sold by the defendant; (2) the product contained a manufacturing defect when it left the defendant's possession; (3) the plaintiff was harmed; and (4) the product's defect was a substantial factor in causing the harm. Crayton v. Rochester Med. Corp., 2011 U.S. Dist. LEXIS 11112, *35 (E.D. Cal. Feb. 4, 2011) (citing Cal. Civ. Jury Inst. ("CACI") § 1201); see also Marroquin v. Pfizer, Inc., 367 F. Supp. 3d 1152, 1159 (E.D. Cal. 2019) (recognizing that CACI § 1201 sets the elements for a manufacturing defectclaim). A plaintiff need not show a duty or breach of duty to recover under a strict products liability theory. Gonzales v. Autoliv ASP, Inc., 154 Cal.App.4th 780, 793 (2007). To properly plead a manufacturing defect claim, a plaintiff must inter alia identify/explain how the product either deviated from the manufacturer's intended result/design or how the product deviated from other seemingly identical models; a bare allegation that the product had "a manufacturing defect" is an insufficient legal conclusion. Marroquin, 367 F.Supp.3d at 1160; Lucas v. City of Visalia, 726 F.Supp.2d 1149, 1155 (E.D. Cal. 2010).

Here, the SAC contains allegations that touch on each of the elements of a manufacturing defect claim. First, the SAC alleges that Bausch occupies one or a combination of various links in the manufacturing and distribution chain for Ocean Saline Nasal Spray.² See SAC ¶ 11. Included in this list of links are manufacturer, distributor, and seller. See id.; cf. CACI § 1201 (setting the elements of a manufacturing defect claim and identifying the defendant as a manufacturer, distributor, or seller); cf. also Petitpas v. Ford Motor Co., 13 Cal.App.5th 261, 270 (2017) (describing limits and criteria for determining whether a defendant is sufficiently within the chain of distribution). Therefore, the allegations indicate that Bausch is within the class of defendants that can be held liable for a manufacturing defect.³ See CACI § 1201; see also Petitpas, 13 Cal.App.5th at 270. Second, the SAC lists several different types of defects with the nasal spray.⁴ See SAC ¶ 12. Included in this list of defects is a "manufacturing defect." See id.; cf. CACI § 1201; cf. also In re Coordinated Latex, 99 Cal.App.4th at 613 (discussing the nature of a manufacturing defect). The SAC alleges that the nasal spray was contaminated when placed onthe market by Bausch and that Warnshuis did not modify the product. See SAC ¶¶ 13, 14. It is reasonable to read this allegation as meaning that Warnshuis just opened and used the nasal spray and the nasal spray was defective/contaminated when it left Bausch's control. Prior allegations that were...