Kinnee v. TEI Biosciences Inc. et al, No. 3:2022cv00604 - Document 48 (S.D. Cal. 2023)

Court Description: ORDER Granting Defendants' Request for Judicial Notice and Granting in Part and Denying in Part 42 Defendants' Motion to Dismiss. Signed by Judge Janis L. Sammartino on 11/27/23. (aas)

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Kinnee v. TEI Biosciences Inc. et al Doc. 48 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHELLE KINNEE, Case No.: 22-CV-604 JLS (DDL) Plaintiff, 12 13 v. 14 TEI BIOSCIENCES INC.; INTEGRA LIFESCIENCES CORPORATION; LIFESCIENCE SALES LLC; and DOES 1 through 50, inclusive, 15 16 ORDER (1) GRANTING DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS Defendants. 17 (ECF No. 42) 18 19 Presently before the Court is Defendants Integra LifeSciences Sales LLC’s (“Integra 20 Sales”) and Integra LifeSciences Corporation’s (“Integra”) (collectively, “Defendants”) 21 Motion to Dismiss (“Mot.,” ECF No. 42). 22 Memorandum of Points and Authorities (“Mem.,” ECF No 42-1) and Request for Judicial 23 Notice (“RJN,” ECF No. 42-2) in support thereof. Plaintiff Michelle Kinnee filed an 24 Opposition to the Motion (“Opp’n,” ECF No. 43), to which Defendants filed a Reply 25 (“Reply,” ECF No. 46). The Court then took this matter under submission without oral 26 argument. 27 Complaint (“FAC,” ECF No. 41), the Parties’ arguments, and the law, the Court GRANTS 28 Defendants’ RJN and GRANTS IN PART AND DENIES IN PART Defendants’ Motion. See ECF No. 47. Also before the Court is Defendants’ Having carefully reviewed Plaintiff’s First Amended 1 22-CV-604 JLS (DDL) Dockets.Justia.com BACKGROUND1 1 2 The Court incorporates the recitations of this action’s factual and procedural history 3 contained in its October 24, 2022 and May 18, 2023 Orders (ECF Nos. 23 & 40, 4 respectively). The Court thus sets forth only those facts relevant to the instant Motion. 5 At issue in this case is the SurgiMend Collagen Matrix (“SurgiMend”) device. FAC 6 ¶ 2–3, 6, 10. On April 26, 2017, Plaintiff was implanted with SurgiMend during a ventral 7 hernia repair. Id. ¶¶ 10, 31. The SurgiMend device malfunctioned three years later, 8 causing serious complications that necessitated surgery and a week-long hospital stay. Id. 9 ¶ 32. Because the device’s mesh “had become entwined with and eroded into Plaintiff’s 10 bowel,” Plaintiff experienced “bowel injury, bowel blockage, bowel perforation, severe 11 inflammatory response, and pain.” Id. 12 Plaintiff initiated this action on April 28, 2022, by filing her original Complaint 13 (“Compl., ECF No. 1) against Integra, Intregra Sales, and a third defendant—TEI 14 Biosciences, Inc. (“TEI”). See generally Compl. Defendants responded with motions to 15 dismiss, arguing that the Court lacked personal jurisdiction over Defendants and that 16 Plaintiff had failed to state a claim. See generally ECF Nos. 10–12. The Court granted 17 Defendants’ motions and afforded Plaintiff sixty days to conduct jurisdictional discovery 18 and file an amended complaint. See generally ECF No. 23. After some additional back 19 and forth, the Parties dismissed TEI from this case by stipulation. ECF No. 32 at 2. 20 On May 25, 2023, Plaintiff filed her FAC. In it, Plaintiff alleges that Integra was 21 “involved in overseeing the quality system, post-market surveillance and marketing” of 22 SurgiMend, FAC ¶ 15, while Integra Sales “was involved in the [device’s] marketing and 23 sale[],” id. ¶ 16. She also states that Defendants’ internal data and post-market surveillance 24 showed that SurgiMend’s design was not reasonably safe. 25 Defendants continued marketing SurgiMend to physicians, including Plaintiff’s Id. ¶ 19. Nevertheless, 26 27 28 The facts alleged in Plaintiff’s FAC are accepted as true for purposes of Defendants’ Motion. See Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007) (holding that, in ruling on a motion to dismiss, the Court must “accept all material allegations of fact as true”). 1 2 22-CV-604 JLS (DDL) 1 prescribing physician. Id. ¶¶ 17–18. Per Plaintiff, Defendants’ actions in continuing to 2 manufacture, sell, and distribute the device caused her injuries. See generally id. On the 3 basis of those allegations, Plaintiff asserts causes of action for strict products liability, 4 negligence, fraudulent concealment, and breach of express warranty. See generally id. The 5 FAC also includes a prayer for punitive damages. See id. ¶¶ 74–87. 6 The instant Motion followed. 7 REQUEST FOR JUDICIAL NOTICE 8 Defendants request judicial notice of (1) a redlined comparison of the FAC and 9 Plaintiff’s original Complaint (“Ex. A,” ECF No. 42-3); (2) a report on “Hernia Surgical 10 Mesh Implants” posted on the U.S. Food and Drug Administration (“FDA”) website 11 (“Ex. B,” ECF No. 42-4); and (3) a different report on “Hernia Surgical Mesh Implants” 12 posted on the FDA website, generated using the WayBack Machine (“Ex. C,” ECF No. 42- 13 5). See generally RJN. Defendants also ask the Court to consider the “SurgiMend 14 Instructions for Use” (“Ex. D,” ECF No. 42-6), pursuant to Federal Rule of Evidence 201 15 and the incorporation-by-reference doctrine. See generally id. 16 I. Legal Standard 17 “Generally, district courts may not consider material outside the pleadings when 18 assessing the sufficiency of a complaint under Rule 12(b)(6) of the Federal Rules of Civil 19 Procedure.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018) 20 (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)). “There are two 21 exceptions to this rule: the incorporation-by-reference doctrine, and judicial notice under 22 Federal Rule of Evidence 201.” Id. 23 Under the first exception, a document “not attached to a complaint . . . may be 24 incorporated by reference into a complaint” in two ways. United States v. Ritchie, 25 342 F.3d 903, 908 (9th Cir. 2003). First, a document can be incorporated into a complaint 26 if “the plaintiff refers extensively” to the document. Id. “[T]he mere mention of the 27 existence of a document is insufficient . . . .” Khoja, 899 F.3d at 1002 (quoting Coto 28 Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010)). Additionally, a document 3 22-CV-604 JLS (DDL) 1 may be incorporated if it “forms the basis of the plaintiff’s claim.” Ritchie, 342 F.3d at 908. 2 This occurs when “the claim necessarily depend[s] on the [document].” 3 899 F.3d at 1002 (citing Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)). 4 “However, if the document merely creates a defense to the well-pled allegations in the 5 complaint, then that document did not necessarily form the basis of the complaint.” Id. Khoja, 6 When a document is incorporated by reference, “the district court may treat such a 7 document as part of the complaint, and thus may assume that its contents are true for 8 purposes of a motion to dismiss under Rule 12(b)(6).” Ritchie, 342 F.3d at 908. That said, 9 “it is improper to assume the truth of an incorporated document if such assumptions only 10 serve to dispute facts stated in a well-pleaded complaint.” Khoja, 899 F.3d at 1003. 11 Meanwhile, under the second exception, “[t]he court may judicially notice a fact that 12 is not subject to reasonable dispute because it: (1) is generally known within the trial court’s 13 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 14 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). “Accordingly, ‘[a] court 15 may take judicial notice of matters of public record . . . .’” 16 (alteration in original) (quoting Lee, 250 F.3d at 689). “But a court cannot take judicial 17 notice of disputed facts contained in such public records.” Id. 18 II. Khoja, 899 F.3d at 999 Analysis Redlined Comparison of the FAC Against Plaintiff’s Original Complaint 19 A. 20 Defendants argue that Exhibit A is properly subject to judicial notice because 21 Plaintiff’s initial and amended complaints are pleadings that “are part of the record” and 22 the redlined comparison’s accuracy can be “readily determined.” RJN at 2. Plaintiff does 23 not contest judicial notice of Exhibit A. See generally Opp’n. 24 The Court agrees that judicial notice of Exhibit A is appropriate. Generally, courts 25 may take judicial notice of court filings, as such records “are readily verifiable.” Reyn’s 26 Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). This includes 27 documents “already before the Court.” Clifford v. Regents of Univ. of Cal., No. 2:11-CV- 28 02935, 2012 WL 1565702, at *5 (E.D. Cal. Apr. 30, 2012), aff’d, 584 F. App’x 431 4 22-CV-604 JLS (DDL) 1 (9th Cir. 2014). And whether Exhibit A correctly captures the differences and similarities 2 between the original Complaint and the FAC “can be accurately and readily determined 3 from sources whose accuracy cannot reasonably be questioned”—i.e., documents 4 previously filed in this case. Fed. R. Evid. 201(b)(2). 5 The Court also notes that, pursuant to Civil Local Rule 15.1(c), “[a]ny amended 6 pleading filed after the granting of a motion to dismiss . . . with leave to amend, must be 7 accompanied by a version of that pleading that shows—through redlining . . . or similarly 8 effective typographic methods—how that pleading differs from the previously dismissed 9 pleading.” Plaintiff’s failure to provide such a version of the FAC is yet another reason for 10 the Court to accept Exhibit A. See Charter Twp. of Clinton Police & Fire Ret. Sys. v. LPL 11 Fin. Holdings Inc., No. 16-CV-685-BTM-BGS, 2019 WL 13178511, at *2 (S.D. Cal. 12 Mar. 29, 2019). The Court therefore GRANTS Defendants’ RJN as to Exhibit A. Discussions Posted on the FDA’s Website (Exhibits B and C) 13 B. 14 Defendants claim that judicial notice of Exhibits B and C is appropriate because both 15 are available on a governmental agency’s website. RJN at 2. Plaintiff does not appear to 16 contest Defendant’s RJN as to Exhibit B; instead, she argues only that Exhibit B does little 17 to support Defendants’ Motion. See Opp’n at 8–9. Plaintiff does not address Exhibit C. 18 District courts may take judicial notice of information published by government 19 entities when, as here, “neither party disputes the authenticity of the web sites or the 20 accuracy of the information displayed therein.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 21 F.3d 992, 998–99 (9th Cir. 2010). This principle applies to documents found on the FDA’s 22 website. See e.g., In re Amgen Inc. Sec. Litig., 544 F. Supp. 2d 1009, 1023–24 (C.D. Cal. 23 2008). 24 Regarding Exhibit C specifically, “[c]ourts have taken judicial notice of internet 25 archives in the past, including Archive.org’s ‘Wayback Machine,’ finding that Archive.org 26 possesses sufficient indicia of accuracy.” EVO Brands, LLC v. Al Khalifa Grp. LLC, No. 27 2:22-CV-03909-AB-MAR, 2023 WL 2768743, at *4 (C.D. Cal. Feb. 23, 2023); see also 28 United States ex rel. Hong v. Newport Sensors, Inc., No. SACV131164JLSJPRX, 5 22-CV-604 JLS (DDL) 1 2016 WL 8929246, at *3 (C.D. Cal. May 19, 2016) (“[D]istrict courts in this circuit have 2 routinely taken judicial notice of content from the Internet Archive’s Wayback 3 Machine . . . .”), aff’d, 713 F. App’x 724 (9th Cir. 2018). 4 As Plaintiff does not contest the accuracy or authenticity of the reports contained 5 within Exhibits B or C, the Court GRANTS Defendants’ RJN as to both documents. The 6 Court will not, however, take judicial notice of “facts contained therein that may be subject 7 to reasonable dispute.” 8 2013 WL 1501452, at *1 (N.D. Cal. Apr. 10, 2013). 9 C. Mortimer v. Bank of Am., N.A., No. C-12-01959 JCS, SurgiMend Instructions for Use 10 Lastly, Defendants argue that Exhibit D is properly subject to judicial notice because 11 it is available on Integra’s public website and is incorporated by reference into the FAC. 12 RJN at 2. Plaintiff provides no argument to the contrary. See generally Opp’n. 13 The Court agrees with Defendants. Plaintiff references the Instructions for Use 14 (“Instructions”) to establish that Defendants failed to warn prescribing physicians of the 15 risks associated with SurgiMend. See FAC ¶¶ 45–46. Plaintiff’s claims thus necessarily 16 rely on—and thereby incorporate by reference—the Instructions. 17 Bristol-Myers Squibb Co., No. ED CV 21-8590-FWS-AGR, 2022 WL 3012519, at *5 18 (C.D. Cal. June 22, 2022). 19 20 Accordingly, the Court GRANTS Defendants’ request for judicial notice of Exhibit D pursuant to the incorporation-by-reference doctrine. 21 22 See Roshkovan v. MOTION TO DISMISS I. Legal Standard 23 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 24 defense that the complaint “fail[s] to state a claim upon which relief can be granted.” To 25 survive a 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as 26 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 27 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 28 facially plausible when the facts pled “allow[] the court to draw the reasonable inference 6 22-CV-604 JLS (DDL) 1 that the defendant is liable for the misconduct alleged.” Id. That is not to say that the claim 2 must be probable, but there must be “more than a sheer possibility that a defendant has 3 acted unlawfully.” Id. Facts “‘merely consistent with’ a defendant’s liability” fall short of 4 a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). 5 Though this plausibility standard “does not require ‘detailed factual 6 allegations,’ . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully- 7 harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). In other words, a 8 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 9 enhancement.’” Id. (alteration in original) (quoting Twombly, 550 U.S. at 557). Put 10 differently, “a formulaic recitation of the elements of a cause of action will not do.” 11 Twombly, 550 U.S. at 555. 12 Review under Rule 12(b)(6) requires a context-specific analysis involving the 13 Court’s “judicial experience and common sense.” Iqbal, 556 U.S. at 679. In performing 14 that analysis, “a district court must accept as true all facts alleged in the complaint, and 15 draw all reasonable inferences in favor of the plaintiff.” Wi-LAN Inc. v. LG Elecs., Inc., 16 382 F. Supp. 3d 1012, 1020 (S.D. Cal. 2019). “[W]here the well-pleaded facts do not 17 permit the court to infer more than the mere possibility of misconduct, the complaint has 18 alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” 19 556 U.S. at 679 (second alternation in original). If a complaint does not survive Rule 20 12(b)(6), a court grants leave to amend unless it determines that no modified contention 21 “consistent with the challenged pleading could . . . possibly cure the deficiency.” 22 Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). 23 II. Iqbal, Analysis 24 Defendants move to dismiss Plaintiff’s FAC in its entirety, contending that the FAC 25 uses boilerplate language and lacks specificity. See Mem. at 7–9. Defendants also provide 26 arguments for dismissing each of Plaintiff’s individual causes of action, which include 27 claims for strict products liability, negligence, fraudulent concealment, and breach of 28 express warranty, as well as a prayer for punitive damages. See generally FAC; Mem. The 7 22-CV-604 JLS (DDL) 1 Court will address each issue in turn. In so doing, “[b]ecause this is a diversity action,” the 2 Court will “apply California substantive law and federal rules of procedure.” Motus v. 3 Pfizer Inc., 358 F.3d 659, 660 (9th Cir. 2004). 4 A. 5 Defendants first contend that Plaintiff’s FAC uses “boilerplate” language irrelevant 6 to SurgiMend. Mem. at 7. Defendants claim the FAC resembles pleadings from unrelated 7 cases and suggest that parts of the FAC were “copied and pasted” for reuse in this matter.2 8 Id. Per Defendants, the FAC is thus “devoid of any facts” pertaining to Plaintiff’s own 9 experience with SurgiMend. Reply at 10. And, Defendants argue, as Federal Rule of Civil 10 Procedure 8(a) “does not permit plaintiff to file a boilerplate complaint containing 11 generalized allegations,” the FAC should be dismissed and amended. Mem. at 7 (quoting 12 Heinemann v. Copperhill Apartments, No. 07-cv-00018, 2007 WL 2225790, at *1 13 (E.D. Cal. July 31, 2007)). Boilerplate Language 14 To the extent Defendants are attempting to derive a bright-line rule against borrowed 15 language from the Federal Rules of Civil Procedure, the Court rejects their argument. The 16 question here is not whether the FAC contains borrowed language, but whether the FAC 17 includes sufficiently well-pled factual allegations so as to “allow[] the court to draw the 18 reasonable inference that the defendant is liable.” Iqbal, 556 U.S. at 678. This approach 19 is reinforced by the very cases Defendant cites, both of which suggest only that truly 20 generic complaints are too conclusory and non-specific to pass muster under Iqbal and 21 Twombly. See Heinemann, 2007 WL 2225790, at *1 & n.2 (dismissing “boilerplate 22 complaint containing generalized,” “broad,” and “conclusory allegations”); Woodson v. 23 Countrywide Home Loans, No. 09CV2707-LAB (JMA), 2010 WL 2573479, at *5 24 (S.D. Cal. June 24, 2010) (dismissing complaint that relied on pleading standards pre- 25 dating Iqbal and Twombly). 26 27 28 2 Notably, Defendants neither provide citations to—nor ask the Court to take judicial notice of—any such complaints filed in other cases. 8 22-CV-604 JLS (DDL) 1 The Court therefore declines to dismiss the FAC based on the presence of 2 “boilerplate” language and instead turns to the more pertinent question posed by 3 Defendants’ Motion: whether Plaintiff has pleaded sufficient facts to support her claims. 4 B. 5 To sufficiently state a failure-to-warn claim, a plaintiff must establish that (1) the 6 warning provided was inadequate, and (2) an adequate warning would have altered the 7 prescribing physician’s conduct. See Motus, 358 F.3d at 661. In their Motion, Defendants 8 contend they had no duty to warn physicians of “well-known risks” that may come with 9 the use of SurgiMend. See Mem. at 9. Alternatively, Defendants argue they satisfied any 10 duty they might have owed because the warnings provided were adequate. See id. Finally, 11 Defendants claim Plaintiff failed to plausibly plead causation. None of Defendants’ 12 arguments succeed. 13 Strict Products Liability—Failure to Warn 1. Duty to Warn 14 Defendants claim to fall under an exception to the general rule that, in California, 15 “manufacturers have a duty to warn consumers about the hazards inherent in their 16 products.” Johnson v. Am. Standard, Inc., 179 P.3d 905, 910 (Cal. 2008). Specifically, 17 Defendants argue they had no duty to warn of SurgiMend’s risks under the sophisticated 18 intermediary and learned intermediary doctrines. Mem. at 9–11. 19 Under the sophisticated intermediary doctrine, “a supplier may discharge its duty to 20 warn end users” if the supplier “sells to a sophisticated purchaser that it knows is aware or 21 should be aware of the specific danger” posed by a product. Webb v. Special Elec. Co., 22 370 P.3d 1022, 1034 (Cal. 2016). So, when a “buyer [is] so knowledgeable about the 23 material supplied that it kn[ows] or should [know] about the particular danger,” the buyer’s 24 “sophistication can be a substitute for actual warnings.” Id. at 1035. 25 The related learned intermediary doctrine requires medical manufacturers and 26 suppliers to “warn doctors, not patients, of potential side-effects.” Motus, 358 F.3d at 661 27 (citing Carlin v. Superior Ct., 920 P.2d 1347, 1354 (Cal. 1996)); see also Brown v. 28 Superior Ct., 751 P.2d 470, 477 n.9 (Cal. 1988) (“[A] manufacturer fulfills its duty to warn 9 22-CV-604 JLS (DDL) 1 if it provides adequate warning to the physician.”). 2 Defendants claim they owed no duty to warn Plaintiff or her physicians due to the 3 combined effect of the sophisticated and learned intermediary doctrines. See Mem. at 10– 4 11. Defendants cite the learned intermediary doctrine for the premise that they, as device 5 manufacturers, “do not have a duty to warn patients of risks”; instead, that duty “runs to 6 physicians.” Id. at 10. Defendants then assert that “a physician would be considered a 7 sophisticated user” regarding “the risks of hernia surgeries and mesh products generally.” 8 Id. at 11 (emphasis added). So, per Defendants, Plaintiff’s treating physician was a 9 “sophisticated intermediary” that Defendants were not required to warn. Id. 10 Defendants’ argument, however, conflates two distinct rules. While both doctrines 11 are “related,” they apply in different circumstances. Webb, 370 P.3d at 1034 n.10. Where, 12 as here, “drugs or medical devices are supplied in the context of the doctor-patient 13 relationship,” California courts apply the learned—not the sophisticated—intermediary 14 doctrine. Id. As cases discussing one of the doctrines have little bearing on cases applying 15 the other, Defendants’ attempt to avoid any duty to warn Plaintiff’s physicians under the 16 sophisticated intermediary doctrine fails. See Riera v. Mecta Corp., No. 2:17-CV-06686- 17 RGK-JC, 2021 WL 2024688, at *5 (C.D. Cal. May 14, 2021), aff’d in part sub nom. Himes 18 v. Somatics, LLC, No. 21-55517, 2022 WL 989469 (9th Cir. Apr. 1, 2022). 19 Under the learned intermediary doctrine, medical device manufacturers have a duty 20 to “adequately warn” physicians of risks that are “known or knowable in light of the 21 generally recognized and prevailing best scientific and medical knowledge available at the 22 time of manufacture and distribution.” Carlin, 920 P.2d at 1351 (quoting Anderson v. 23 Owens-Corning Fiberglas Corp., 810 P.2d 549, 559 (Cal. 1991)). 24 requirement’s purpose “is to inform consumers about a product’s hazards and faults of 25 which they are unaware, so that they can refrain from using the product altogether or evade 26 the danger by careful use.” Johnson, 179 P.3d at 910. The warning 27 True, manufacturers need not warn of risks “which [are] readily known and 28 apparent” to the medical community. Plenger v. Alza Corp., 13 Cal. Rptr. 2d 811, 819 10 22-CV-604 JLS (DDL) 1 (Ct. App. 1992). In Plenger, for example, the argument that a manufacturer failed to 2 adequately warn physicians of the “risk of death” from “pelvic infection” was unsuccessful 3 in part because said risk was “universally known in the medical profession.” Id. 4 But Plenger has little relevance here. For one thing, “whether the risks and 5 complications were known to the medical community is a question for the jury.” Hurd v. 6 Bos. Sci. Corp., No. 5:22-CV-00032-JWH-KK, 2023 WL 3564741, at *3 (C.D. Cal. 7 Apr. 10, 2023) (citation omitted). Further, unlike the death-by-infection risk at issue in 8 Plender, the FAC does not discuss the risks associated with SurgiMend in broad terms. 9 Instead, Plaintiff alleges that SurgiMend “posed a significant . . . risk of” complications 10 including “recurrence,” “degradation,” or “disintegration,” and several specific bowel 11 injuries like “blockage,” “perforation,” and “adhesions.” FAC ¶ 38. 12 Nor is the Court persuaded by Defendants’ attempt to use two reports from the 13 FDA’s website as evidence that the risks of mesh hernia surgeries were well known. See id. 14 (citing RJN Exs. B & C). Indeed, courts have refused to make the “tremendous leap in 15 logic” required to conclude that the “publication of FDA warnings” suffices “to establish 16 that a risk is ‘known to the medical community.’” Hurd, 2023 WL 3564741, at *3 (quoting 17 Carlin, 920 P.2d at 1354). 18 Here, the FAC adequately pleads that Defendants owed a duty to warn under the 19 learned intermediary doctrine. The FAC alleges SurgiMend was prescribed to—and 20 implanted in—Plaintiff by her physicians. See FAC ¶ 48. Defendants thus owed the duty 21 to “adequately warn” Plaintiff’s physicians of certain risks associated SurgiMend, which 22 Defendants allegedly failed to do. See id. ¶¶ 45–49. 23 2. Adequacy of Warning 24 Defendants next argue that the FAC must be dismissed because the warning they 25 provided was adequate. See Mem at 12. As a decision on the adequacy of Defendants’ 26 warning would be premature, the Court disagrees. 27 Not surprisingly, the Parties define adequacy differently. Per Defendants, the FAC 28 alleges only that SurgiMend entwined with and eroded Plaintiff’s bowel, thereby causing 11 22-CV-604 JLS (DDL) 1 a severe inflammatory response and pain. See id. As SurgiMend’s Instructions note that 2 “[g]eneral risks” of using the product may include “adhesions,” “pain,” and “acute or 3 chronic inflammatory reactions,” Defendants argue, SurgiMend’s warning was adequate 4 as a matter of law. Id. (alteration in original). Plaintiff counters that Defendants failed to 5 adequately warn of “the true risk” associated with SurgiMend. Opp’n at 5. 6 “Whether a warning is adequate is generally a question of fact, which is usually left 7 to the jury.” Woods v. Davol, Inc., No. 16-CV-02616-KJM-CKD, 2017 WL 3421973, 8 at *5 (E.D. Cal. Aug. 9, 2017) (citations omitted). Courts thus typically do not resolve the 9 issue of a warning’s adequacy at the pleading stage. See id. Only when it addresses “in 10 plain and explicit terms” the “specific risk that has caused injury to the plaintiff” may a 11 warning be deemed adequate as a matter of law. Utts v. Bristol-Myers Squibb Co., 12 251 F. Supp. 3d 644, 673 (S.D.N.Y. 2017) (applying California law), aff’d sub nom. 13 Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699 (2d Cir. 2019). “Where a warning” is 14 “ambiguous,” adequacy remains “a question of fact for the jury.” Miles Lab’ys, Inc. v. 15 Superior Ct., 184 Cal. Rptr. 98, 104 (Ct. App. 1982). 16 Here, the issue of adequacy poses questions of fact that the Court cannot resolve at 17 this stage. Defendants contend that a general warning relating to a plaintiff’s injury is 18 “adequate.” See Mem. at 13. But whether a generalized warning satisfies a manufacturer’s 19 duty depends on the facts and circumstances surrounding each case. See Zetz v. Bos. Sci. 20 Corp., 398 F. Supp. 3d 700, 707 (E.D. Cal. 2019) (denying motion to dismiss where “some 21 of the problems associated with [a medical device] were made known to physicians” but 22 “the magnitude and frequency of these problems were not disclosed”); Woods, 23 2017 WL 3421973, at *5 (“[W]hether defendants’ general ‘adhesions’ warning was 24 adequate [is an] issue[] of fact.”). 25 The cases Defendants rely on do not state otherwise. In Marroquin v. Pfizer, Inc., 26 the court found a warning adequate when (1) it extensively discussed the risk of pulmonary 27 toxicity—the “exact danger” that befell the plaintiff—by disclosing the “[p]ercentages of 28 those who experience[d]” and died from such toxicity; (2) the drug’s label “clearly state[d]” 12 22-CV-604 JLS (DDL) 1 that the product was one “of last resort because of its potentially fatal toxicities”; and (3) 2 the plaintiff did not “explain how or why the warnings provided were inadequate.” 3 367 F. Supp. 3d 1152, 1161–63 (E.D. Cal. 2019). Marroquin thus bears little resemblance 4 to this case, in which SurgiMend’s warning appears to disclose only general risks, and 5 Plaintiff alleges several ways in which said warning was inadequate. 6 The other cases Defendants cite also involved much more detailed warnings than the 7 one presented here. See Kearl v. Lederle Lab'ys, 218 Cal. Rptr. 453, 467 (finding vaccine 8 warning adequate as it described an “alternative vaccine,” noted that the alternative carried 9 less risk, and “specifically invited” consumers to “inquire further”); Utts, 251 F. Supp. 3d 10 at 675 (holding warning adequate where the “risk of excessive bleeding” and “absence of 11 an antidote” were “fully disclosed,” “advice [was] given about” when use of the drug 12 “should be discontinued,” and physicians were told “that standard blood tests” would not 13 be “useful in monitoring” for side effects). 14 15 16 The Court must thus decline Defendants’ invitation to decide, at this stage, whether SurgiMend’s warning was adequate as a matter of law. 3. Causation 17 In their Reply—but not in their Motion—Defendants appear to argue that their 18 alleged failure to warn did not cause Plaintiff’s injury. For support, Defendants cite a case 19 in which the court required a plaintiff to allege “that the inadequacy or absence of the 20 warning caused the plaintiff’s injury.” Motus v. Pfizer Inc., 196 F. Supp. 2d 984, 991 21 (C.D. Cal. 2001). Because Plaintiff did not suffer from the specific injuries about which 22 she alleges Defendants ought to have warned her, Defendants argue, her failure to warn 23 claim must fail. See Reply at 1. 24 Defendants’ argument is, at best, underdeveloped. Defendants fail to apply the 25 causation standard that courts use when evaluating strict liability failure-to-warn claims. 26 In such cases, a plaintiff must show that the failure to warn was “a substantial factor in 27 causing the plaintiff’s harm,” meaning that “the prescribing physician’s conduct would 28 have changed if an adequate warning had been given.” Crawford v. Zimmer Biomet 13 22-CV-604 JLS (DDL) 1 Holdings, Inc., No. 1:21-CV-0988 AWI CDB, 2023 WL 2189425, at *5 (E.D. Cal. 2 Feb. 23, 2023). Defendants make no effort to show how the FAC fails to meet that 3 standard, and the Court declines to develop Defendants’ argument for them. 4 Worse still, Defendants’ argument is built on demonstrably incorrect statements. Per 5 Defendants, Plaintiff failed to “plead that the injury she allegedly sustained was not warned 6 of,” as she did not claim to have suffered from “a ‘bowel blockage[] or perforation,’ a 7 ‘recurrence, degradation, or disintegration,’” or “an ‘inflammatory response.’” Reply at 1 8 (alteration in original and emphasis omitted). Perhaps Defendants are working off a 9 different document, but to the Court it very much appears Plaintiff did make such 10 allegations. See FAC ¶ 32 (stating Plaintiff suffered from such complications as “bowel 11 blockage, bowel perforation,” and a “severe inflammatory response” (emphases added)). 12 13 In light of the above, the Court DENIES Defendants’ Motion to Dismiss as to Plaintiff’s strict liability failure-to-warn claim. 14 C. 15 To state a negligence claim in California, a plaintiff must establish “a legal duty to 16 use due care, a breach of such legal duty, and [that] the breach [is] the proximate or legal 17 cause of the resulting injury.” Kesner v. Superior Ct., 384 P.3d 283, 289 (Cal. 2016) 18 (alterations in original) (quoting Beacon Residential Community Ass’n v. Skidmore, 19 Owings & Merrill LLP, 327 P.3d 850, 853 (Cal. 2014)). Stating a products liability claim 20 grounded in negligence requires the same showing. See, e.g., Rodman v. Otsuka Am. 21 Pharm., Inc., 564 F. Supp. 3d 879, 893 (N.D. Cal. 2020), aff’d, No. 20-16646, 22 2021 WL 5850914 (9th Cir. Dec. 9, 2021). Plaintiffs must be careful to show “both that a 23 defect caused the injury and ‘that the defect in the product was due to negligence of the 24 defendant.’” Hannan v. Bos. Sci. Corp., No. 19-CV-08453-PJH, 2020 WL 2128841, at *8 25 (N.D. Cal. May 5, 2020) (quoting Merrill v. Navegar, Inc., 28 P.3d 116, 124 (Cal. 2001)). 26 That Defendants owed a legal duty is not in question. In California, a manufacturer 27 “owes a duty of care to foreseeable users of its products.” Bettencourt v. Hennessy Indus., 28 Inc., 141 Cal. Rptr. 3d 167, 179 (Cal. Ct. App. 2012). Defendants instead challenge Negligence Claim 14 22-CV-604 JLS (DDL) 1 Plaintiff’s negligence claim on the grounds that the FAC fails to allege (1) “any relevant 2 breach” of a legal duty, and (2) “any causal link between the alleged breach and Plaintiff’s 3 alleged injury.” Mem. at 13. 4 Products liability claims sounding in negligence can be premised on three theories: 5 “design defect, manufacturing defect, or failure to warn.” Trejo v. Johnson & Johnson, 6 220 Cal. Rptr. 3d 127, 139 (Ct. App. 2017). The causation inquiry remains the same under 7 each theory: a plaintiff must show “that a defect caused the injury.” 8 367 F. Supp. 3d at 1164. Specifically, Plaintiff must show that a SurgiMend defect “was 9 a substantial factor in producing [her] injury.” Soule v. Gen. Motors Corp., 882 P.2d 298, 10 312 (Cal. 1994). Each theory, however, comes with its own method for defining breach. 11 See Marroquin, 367 F. Supp. 3d at 1164. As Plaintiff appears to invoke all three theories, 12 see generally FAC at 12–14, the Court will apply Defendants’ arguments to each one. 13 1. Marroquin, Design Defect 14 There are two tests for negligent design. The risk-benefit test “involves a balancing 15 of the likelihood of harm to be expected from . . . a given design and the gravity of harm if 16 it happens against the burden of the precaution which would . . . avoid the harm.” Merrill, 17 28 P.3d at 125 (quoting Pike v. Frank G. Hough Co., 467 P.2d 229, 232 (Cal. 1970)). 18 Meanwhile, the consumer expectations test asks whether “the product has failed to perform 19 as safely as an ordinary consumer would expect when used in an intended or reasonably 20 foreseeable manner.” Barker v. Lull Eng’g Co., 573 P.2d 443, 446 (Cal. 1978). 21 To survive a motion to dismiss, plaintiffs must identify what aspects of a product 22 make it defective. Marroquin, 367 F. Supp. 3d at 1164. A plaintiff should also “identify 23 which design defect theory is being utilized and allege facts to support that theory.” In re 24 Toyota Motor Corp., 754 F. Supp. 2d 1208, 1220 (C.D. Cal. 2010). A “bare allegation” 25 that the product “suffered from a ‘design defect’” will not suffice. Lucas v. City of Visalia, 26 726 F. Supp. 2d 1149, 1155 (E.D. Cal. 2010) (citing Iqbal, 556 U.S. at 680–81). 27 Plaintiff meets these requirements. The FAC alleges a variety of ways in which 28 SurgiMend is defective. For example, Plaintiff alleges that SurgiMend lacked “any design 15 22-CV-604 JLS (DDL) 1 feature to prevent the mesh from becoming entwined with and eroding into the bowel.” 2 FAC ¶ 41. Plaintiff further claims that the “small pore size of [SurgiMend] rendered it 3 more likely to cause and/or harbor infection and negative inflammatory response.” 4 Id. ¶ 54(g). Plaintiff thus also sufficiently pleads causation, as she alleges that—after being 5 implanted with SurgiMend—she suffered from those same complications. See id. ¶ 32. 6 Plaintiff also invokes the risk-benefit test, claiming that SurgiMend’s defects posed 7 a risk of harm that outweighed the burden of taking additional safety measures. See id. 8 ¶ 56(i). She supports this theory by alleging that “other available devices” were not 9 similarly defective. Id. ¶ 54(b). The Court can thus reasonably infer that the risk and 10 magnitude of harm associated with SurgiMend’s design outweighed the potential burden 11 that Defendants would have incurred by attempting to prevent such harm. 12 Further, Plaintiff sufficiently pleads that SurgiMend’s alleged defects were caused 13 by Defendants’ negligence. The FAC states that Defendants “designed, manufactured, 14 distributed or conducted post-market surveillance of” SurgiMend.” Id. ¶ 51. Plaintiff also 15 alleges that medical studies showed SurgiMend was “substantially weaker” than other 16 “hernia mesh devices,” and that SurgiMend could “disintegrate in a matter of weeks.” 17 Id. ¶ 20. Plaintiff thus claims Defendants knew or should have known about SurgiMends 18 design defects but failed to correct them. See id. ¶¶ 54–55. 19 Allegations like those described above are sufficient to state a negligent design 20 claim. See Hannan, 2020 WL 2128841, at *10; Smith v. Medtronic, Inc., No. 22-CV- 21 09179-JSW, 2023 WL 4849432, at *3–4 (N.D. Cal. July 28, 2023); Hammarlund v. C.R. 22 Bard, Inc., No. 215CV05506SVWJEM, 2015 WL 5826780, at *3 (C.D. Cal. Oct. 2, 2015). 23 2. Manufacturing Defect 24 “Under a ‘manufacturing defect’ theory, ‘a defective product is one that differs from 25 the manufacturer’s intended result or from other ostensibly identical units of the same 26 product line.’” In re Toyota, 754 F. Supp. 2d at 1222 (quoting Lucas, 726 F. Supp. 2d 27 at 1154). The “traditional definition[]” of a manufacturing defect in California thus 28 “presuppose[s] that a suitable design is in place, but that the manufacturing process has in 16 22-CV-604 JLS (DDL) 1 some way deviated from that design.” 2 121 Cal. Rptr. 2d 301, 315 (Ct. App. 2002), as modified on denial of reh’g (July 15, 2002). 3 To comply with federal pleading standards, “plaintiffs should ‘identify/explain how the 4 [product] either deviated from [defendant’s] intended result/design or how the [product] 5 deviated from other seemingly identical [product] models.’” In re Toyota, 754 F. Supp. 2d 6 at 1222 (alterations in original) (quoting Lucas, 726 F. Supp. 2d at 1155). In re Coordinated Latex Glove Litig., 7 Plaintiff has not adequately alleged breach under a manufacturing defect theory. The 8 FAC states that Defendants failed “to use reasonable care in manufacturing [SurgiMend] 9 and producing a product that differed from their design . . . or from other typical units from 10 the same product line.” FAC ¶ 56(iv). But restating the claim’s elements does not suffice 11 under Iqbal and Twombly. True, the FAC could be read to imply that Defendants 12 manufactured SurgiMend in unsafe conditions. See id. ¶ 21. But the FAC fails to discuss 13 how any SurgiMend units ultimately differed from Defendants’ designs. And even if 14 Plaintiff had sufficiently pleaded breach, she fails to establish causation. The FAC 15 discusses only how SurgiMend’s defective design and inadequate warning—and not the 16 alleged unsafe manufacturing conditions—led to her injury. See generally id. 17 Plaintiff has thus failed to state a negligence claim under a manufacturing defect 18 theory. Notably, Plaintiff does not argue otherwise. See Opp’n at 9–12 (discussing 19 Plaintiff’s negligence claim only in the context of design and warning defects). 20 3. Failure to Warn 21 In a negligent failure-to-warn case, a plaintiff must establish that a manufacturer did 22 not adequately warn of a risk that “a reasonably prudent manufacturer would have known 23 and warned about.” Carlin, 920 P.2d at 1351 (quoting Anderson, 810 P.2d at 558). The 24 negligence form of a warning claim thus differs from its strict-liability counterpart in that 25 Plaintiff must show that Defendants’ failure to warn fell below the acceptable standard of 26 case. See id. Under either theory, the duty to warn “runs to the physician.” Marroquin, 27 367 F. Supp. 3d at 1164. 28 /// 17 22-CV-604 JLS (DDL) 1 Here, Plaintiff adequately alleges a breach of Defendants’ duty to warn. For the 2 same reasons stated in Section II.B.2, supra, the FAC contains factual allegations sufficient 3 to show that SurgiMend’s warning was inadequate. Furthermore, Plaintiff alleges that 4 medical studies revealed risks inherent to the use of SurgiMend, see FAC ¶ 20, and that 5 “Defendants knew from internal testing and their post-market investigations” that 6 SurgiMend “creates a high risk of injury to the bowel” and is “more likely to 7 cause . . . negative inflammatory response,” id. ¶ 40. 8 inference that a reasonably prudent manufacturer would have known and warned of the 9 risks associated with SurgiMend, but Defendants did not. These allegations support the 10 As to causation, the Court again notes that—as in a strict liability case—Plaintiff 11 must show that “the prescribing physician’s conduct would have changed if an adequate 12 warning had been given.” Crawford, 2023 WL 2189425, at *5. Defendants once more 13 make no effort to show how the FAC fails to meet that standard, and the Court remains 14 disinclined to develop Defendants’ argument for them. The Court notes, however, that 15 Plaintiff alleges that her physicians “would not have prescribed and used” SurgiMend “had 16 Defendants not failed to provide adequate warnings.” FAC ¶ 49. 17 Given the foregoing, the Court GRANTS Defendants’ Motion to dismiss Plaintiff’s 18 negligence claim to the extent the FAC relies on a manufacturing defect theory. 19 Defendants’ Motion is otherwise DENIED. 20 D. 21 Defendants next contend that Plaintiff’s fraudulent concealment claim should be 22 dismissed because it fails to satisfy the heightened pleading standard of Federal Rule of 23 Civil Procedure 9(b). Mem. at 15. To that end, Defendants argue that (1) Plaintiff’s 24 allegations are conclusory and lack facts to support them, id. at 16; and (2) Plaintiff 25 impermissibly lumps Defendants together, failing to allege specific facts pertaining to each 26 defendant’s conduct, id. at 17. The Court agrees. 27 /// 28 /// Fraudulent Concealment Claim 18 22-CV-604 JLS (DDL) 1 1. Rule 9(b) and Fraudulent Concealment Claims Defendants are correct that Rule 9(b) applies to Plaintiff’s fraudulent concealment 2 Under Rule 9(b), a party alleging fraud must “state with particularity the 3 claim. 4 circumstances constituting fraud.” Fed. R. Civ. P. 9(b). That “particularity requirement 5 applies to state-law causes of action” based on fraud, Vess v. Ciba-Geigy Corp. USA, 317 6 F.3d 1097, 1103 (9th Cir. 2003), including fraudulent concealment claims brought under 7 California law, see Engalla v. Permanente Med. Grp., Inc., 938 P.2d 903, 917 (Cal. 1997); 8 Kearns v. Ford Motor Co., 567 F.3d 1120, 1125–26 (9th Cir. 2009). Plaintiff does not 9 dispute that Rule 9(b) applies. See generally Opp’n. 10 To satisfy Rule 9(b), “allegations of fraud must be ‘specific enough to give 11 defendants notice of the particular misconduct . . . so that they can defend against the 12 charge.” 13 Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993)). Such allegations must thus be 14 “accompanied by ‘the who, what, when, where, and how’ of the misconduct charged.” 15 Kearns, 567 F.3d at 1124 (quoting Vess, 317 F.3d at 1106). “[N]eutral facts necessary to 16 identify the transaction” are not enough; a plaintiff “must set forth what is false or 17 misleading about a statement, and why it is false.” In re GlenFed, Inc. Sec. Litig., 18 42 F.3d 1541, 1548 (9th Cir. 1994), superseded by statute on other grounds. Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (quoting 19 As fraudulent concealment alleges “a failure to act instead of an affirmative act,” 20 district courts in the Ninth Circuit have found that such claims “can succeed without the 21 same level of specificity required by a normal fraud claim.” Baggett v. Hewlett-Packard 22 Co., 582 F. Supp. 2d 1261, 1267 (C.D. Cal. 2007) (quoting Falk v. Gen. Motors Corp., 496 23 F. Supp. 2d 1088, 1098–99 (N.D. Cal. 2007)). That said, “[w]here a fraudulent omission 24 is at issue, the requirements of Rule 9(b) are relaxed, but not eliminated.” 25 Recordings, Inc. v. Glob. Eagle Ent., Inc., 117 F. Supp. 3d 1092, 1107 (C.D. Cal. 2015). 26 2. UMG Sufficiency of Plaintiff’s Allegations 27 To state a claim for fraudulent concealment, a plaintiff must show: “(1) concealment 28 or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the 19 22-CV-604 JLS (DDL) 1 plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or 2 suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as 3 he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff 4 sustained damage as a result of the concealment or suppression of the fact.” Graham v. 5 Bank of Am., 172 Cal. Rptr. 3d 218, 228 (Ct. App. 2014). 6 Defendants’ challenge appears to focus mostly on fraudulent concealment’s first 7 element. Defendants argue that the FAC does not identify the “what” of the alleged fraud— 8 i.e., what specific material fact should have been disclosed—nor “provide factual 9 allegations as to when material information was . . . concealed, how it was concealed, or 10 where it was concealed.” Mem. at 16 (emphases added). 11 The Court first turns to the question of what material facts Defendants allegedly 12 concealed. “To plead the existence of an omission sufficient to support a fraudulent 13 concealment claim, a plaintiff ‘must describe the content of the omission . . . .’” Tapia v. 14 Davol, Inc., 116 F. Supp. 3d 1149, 1163 (S.D. Cal. 2015) (quoting Erickson v. Boston Sci. 15 Corp., 846 F. Supp. 2d 1085, 1092 (C.D. Cal. 2011)). An omitted fact is deemed material 16 if “a reasonable man would attach importance to its existence or nonexistence in 17 determining his choice of action in the transaction in question.” Engalla, 938 P.2d at 919 18 (quoting Restatement (Second) Torts § 538(2)(a)). 19 Defendants argue that Plaintiff failed to identify “a specific safety hazard or defect 20 that should have been warned against,” Mem. at 16, but the Court disagrees. Per the FAC, 21 Defendants knew that SurgiMend “did not contain any design feature to prevent the mesh 22 from” damaging a patient’s bowel, FAC ¶ 41; that absent such a safety mechanism, 23 SurgiMend posed a higher risk of complications than similar devices, see id. ¶¶ 41, 60; and 24 that SurgiMend often led to bowel injuries, see id. The foregoing allegations sufficiently 25 identify an omitted material fact. See, e.g., Shimy v. Wright Med. Tech., Inc., No. 2:14- 26 CV-04541-CAS, 2014 WL 3694140, at *3 (C.D. Cal. July 23, 2014). 27 On the other hand, the FAC provides fewer details regarding the where and how of 28 Defendants’ alleged omission. Beyond the omission’s content, Plaintiff must describe 20 22-CV-604 JLS (DDL) 1 “where the omitted information should or could have been revealed.” 2 116 F. Supp. 3d at 1163 (quoting Erickson, 846 F. Supp. 2d at 1092). The FAC states that 3 Plaintiff and her health care providers “reviewed and relied on” the “product inserts 4 Defendants distributed with” SurgiMend. FAC ¶¶ 64–65. But Plaintiff does not state what 5 specific information Defendants omitted from said inserts. Nor does she describe the actual 6 contents of the inserts, thereby failing to explain how Defendants allegedly concealed or 7 miscommunicated the dangers of SurgiMend. Tapia, 8 The FAC’s bare allegations thus do not satisfy Rule 9(b)’s particularity requirement. 9 See Hill v. Davol Inc., No. 516CV01759ODWKK, 2016 WL 10988657, at *8 (C.D. Cal. 10 Nov. 16, 2016) (dismissing claim where the plaintiff “neither identified a specific 11 advertisement that either he or his physician viewed nor provided even a vague outline of 12 the specific language used to make these representations”); Sukonik v. Wright Med. Tech., 13 Inc., No. CV1408278BROMRWX, 2015 WL 10682986, at *16 (C.D. Cal. Jan. 26, 2015) 14 (finding insufficient the allegation “that Plaintiff and his healthcare providers ‘relied on 15 [defendant’s] incomplete and inaccurate representations as to the safety and performance 16 of the device’”); Jager v. Davol Inc., No. EDCV161424GBKKX, 2016 WL 6157942, at *6 17 (C.D. Cal. Oct. 20, 2016) (dismissing claim where “[n]othing in the Complaint point[ed] 18 to specific content in [d]efendants’ marketing materials . . . that were allegedly false”). 19 3. Rule 9(b) and Multiple Defendants 20 Defendants also argue that the FAC improperly lumps Defendants together without 21 specifying each defendant’s specific role in the alleged fraudulent concealment. Mem. 22 at 17–18. Defendants are correct. 23 Rule 9(b) “require[s] plaintiffs to differentiate their allegations when suing more 24 than one defendant.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (alteration 25 in original) (quoting Haskin v. R.J. Reynolds Tobacco Co., 995 F. Supp. 1437, 1439 26 (M.D. Fla. 1998)). A complaint must provide each defendant with information sufficient 27 to allow them “to know what misrepresentations are attributable to them and what 28 fraudulent conduct they are charged with.” Tapia, 116 F. Supp. 3d at 1163 (quoting Vega 21 22-CV-604 JLS (DDL) 1 v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1115 (E.D. Cal. 2009)). 2 That said, a plaintiff need not provide “every detail” of each defendant’s 3 participation in a fraudulent scheme. Swartz, 476 F.3d at 764. Rather, “a plaintiff must, at 4 a minimum, ‘identif[y] the role of [each] defendant[].’” Id. at 765 (alterations in original) 5 (quoting Moore v. Kayport Package Express, Inc., 885 F.2d 531, 541 (9th Cir.1989)). 6 Conversely, “a complaint need not distinguish between defendants that had the exact same 7 role in a fraud.” United States ex rel. Silingo v. WellPoint, Inc., 904 F.3d 667, 677 (9th Cir. 8 2018). 9 Here, Plaintiff has not adequately delineated the roles played by each defendant. The 10 FAC alleges that Integra oversaw “the post-market surveillance and marketing” of 11 SurgiMend, FAC ¶ 2, while Integra Sales was “involved in the marketing and sale of 12 Plaintiff’s [SurgiMend] device,” id. ¶ 3. But the rest of the FAC suggests Defendants 13 played identical roles. Each of the FAC’s remaining allegations refer generically to 14 “Defendants”—even when discussing an activity that allegedly falls within a specific 15 defendant’s remit. See, e.g., id. ¶ 37 (“Defendants, including DOES 1 through 50, and each 16 of them, also engaged in post-market surveillance, quality control, marketing, and 17 distribution . . . .” (emphasis added)). 18 fraudulent concealment section refer to “Defendants.” See, e.g., id. ¶ 60 (“In marketing 19 and selling the device, Defendants concealed material facts from Plaintiff . . . .”). Similarly, all allegations listed in the FAC’s 20 As Plaintiff neither “differentiate[s] which facts pertain to which defendant” nor 21 “note[s] each defendant’s role,” Sivilli v. Wright Med. Tech., Inc., No. 18-CV-2162-AJB- 22 JLB, 2019 WL 3803808, at *4 (S.D. Cal. Aug. 13, 2019), the FAC fails to plead a 23 fraudulent concealment claim with the particularity required by Rule 9(b). The Court thus 24 GRANTS Defendants’ Motion to dismiss Plaintiff’s fraudulent concealment claim. 25 E. 26 Plaintiff’s fourth cause of action is for breach of express warranty. FAC ¶¶ 68–73. 27 To plead an express warranty claim under California law, a plaintiff must allege that the 28 seller “(1) made an affirmation of fact or promise or provided a description of its goods; Express Warranty Claim 22 22-CV-604 JLS (DDL) 1 (2) the promise or description formed part of the basis of the bargain; (3) the express 2 warranty was breached; and (4) the breach caused injury to the plaintiff.” Loomis v. 3 Slendertone Distrib., Inc., 420 F. Supp. 3d 1046, 1087 (S.D. Cal. 2019) (quoting Viggiano 4 v. Hansen Nat. Corp., 944 F. Supp. 2d 877, 893 (C.D. Cal. 2013)). Defendants mount two attacks on the FAC’s warranty claim. Neither succeeds. 5 6 1. Contents and Location of the Warranties 7 Defendants first attack Plaintiff’s warranty claim by arguing that Plaintiff did not 8 “allege the exact terms of the alleged warranties” or “identify the specific materials, 9 packaging inserts, or advertisements that contain[ed]” the warranties. Mem. at 19. 10 As to the terms of the alleged warranties, the Court finds Plaintiff’s pleadings 11 sufficient. Per the FAC, Defendants represented that SurgiMend “was safe for its intended 12 use; did not pose serious health hazards when used appropriately; was safer and more 13 effective than alternative mesh devices; had been adequately tested for its intended use; 14 and would not cause injury after implantation.” FAC ¶ 70. Other courts have found similar 15 statements adequate. See, e.g., Tapia, 116 F. Supp. 3d at 1162 (holding warranty terms 16 sufficiently plead where complaint alleged that “[d]efendants expressly warranted that the 17 [product] was safe and fit for use by consumers, was of merchantable quality, did not 18 produce dangerous side effects, and was adequately tested”); Kent v. Pfizer Inc., No. 17- 19 CV-0604 DMS (MDD), 2017 WL 11672334, at *4 (S.D. Cal. Aug. 16, 2017) (finding 20 alleged representation that a product “was effective proper [sic] and safe for its intended 21 use” sufficient to plead warranty terms). 22 Defendants’ argument regarding the “location” of the warranties also fails. 23 Defendants cite no case law to support the contention that Plaintiff must describe the 24 materials through which Defendants’ representations were allegedly made in greater detail 25 than does the FAC.3 See FAC ¶ 70 (explaining that Defendants’ representations were made 26 27 28 Defendants also do not argue that Rule 9(b)’s particularity requirement applies to Plaintiff’s express warranty claim. 3 23 22-CV-604 JLS (DDL) 1 through SurgiMend’s “packaging inserts and media advertisements”). And indeed, several 2 courts have found that representations made on a product’s label or packaging can 3 constitute an express warranty. 4 No. 321CV01794RBMNLS, 2023 WL 419268, at *7 (S.D. Cal. Jan. 26, 2023); Thurston 5 v. Bear Naked, Inc., No. 11-CV-02890-H-BGS, 2012 WL 12845621, at *8 (S.D. Cal. 6 July 16, 2012). The only case Defendants provide has little relevance here, as it focuses 7 on a complaint’s failure to plead other elements—like breach and causation—of an express 8 warranty claim, rather than on the terms or location of the warranties themselves. See 9 Bogart v. Glenmark Generics, Inc., USA, No. 14-CV-778 LAB DHB, 2014 WL 5800577, 10 See Anderberg v. Hain Celestial Grp., Inc., at *6 (S.D. Cal. Nov. 7, 2014). 11 2. Reliance 12 Defendants next make two reliance-based arguments. 13 First, Defendants contend that “the warranties Plaintiff alleges were breached are 14 neither specific nor measurable as required under California law.” Mem. at 19. In support, 15 Defendants cite Southland Sod Farms v. Stover Seed Co., which, the Court notes, discusses 16 the idea that mere puffery is not actionable under the Lanham Act—not California law. 17 See 108 F.3d 1134, 1145 (9th Cir. 1997). Specifically, the Ninth Circuit explained in 18 Southland that “exaggerated advertising . . . is not actionable” because “no reasonable 19 buyer would rely” on it. Id. Defendants’ remaining cases make similar points, albeit in 20 the context of express warranty claims. See Azoulai v. BMW of N. Am. LLC, No. 16-CV- 21 00589-BLF, 2017 WL 1354781, at *8 (N.D. Cal. Apr. 13, 2017); Marrujo v. Coloplast 22 Corp., No. 319CV01588AJBNLS, 2020 WL 3791637, at *3 (S.D. Cal. July 7, 2020). 23 Presuming Plaintiff must plead reliance,4 the Court rejects Defendants’ first 24 argument. Defendants’ proffered caselaw does them few favors. As Southland explained, 25 26 27 28 4 Whether a plaintiff must sometimes—or ever—establish reliance to state an express warranty claim is unsettled under California law. See, e.g., Watkins v. MGA Ent., Inc., 574 F. Supp. 3d 747, 757–58 (N.D. Cal. 2021) (summarizing three-way split in authority). However, Plaintiff herself states that she must plead reliance, see Opp’n at 16, and Defendants do not disagree, see generally Mem.; Reply. The Court will thus proceed under the assumption that reliance remains an element of Plaintiff’s claim. 24 22-CV-604 JLS (DDL) 1 “[a] specific and measurable advertisement claim of product superiority based on product 2 testing is not puffery.” 108 F.3d at 1145. Such a statement can be actionable even where 3 no “direct comparison to a competitor” is made. Id. (quoting Castrol Inc. v. Pennzoil Co., 4 987 F.2d 939, 946 (3d Cir. 1993)). 5 Defendant’s representation that SurgiMend was “safer and more effective than alternative 6 mesh devices” and “had been adequately tested.” FAC ¶ 70. This representation, in the 7 Court’s view, is sufficiently specific such that Plaintiff and her physicians could rely on it. 8 More broadly, Plaintiff alleges that she and her physicians relied on Defendants’ 9 representations regarding SurgiMend’s safety and effectiveness in deciding whether to use 10 the device. FAC ¶ 69. Similarly worded allegations have been held sufficient to establish 11 reliance at the 12(b)(6) stage. See Kent, 2017 WL 11672334, at *4; Kanfer v. Pharmacare 12 US, Inc., 142 F. Supp. 3d 1091, 1104 (S.D. Cal. 2015) (finding reliance adequately stated 13 where plaintiff allegedly relied on “specific statements made on [a product’s] packaging”). 14 The Court thus concludes that Plaintiff’s allegations of reliance are sufficient. And here, Plaintiff alleges that she relied on 15 Defendants’ final argument fares no better. Defendants point out that the learned 16 intermediary rule applies in express warranty claims, meaning Plaintiff must “allege that 17 [her] prescribing physician read and relied on the purported warranties.” Reply. at 9 (citing 18 Tapia, 116 F. Supp. 3d at 1162). Plaintiff failed to do so here, per Defendants, as the FAC 19 “alleges only that her ‘treating physicians’ relied on the purported warranties.” Id. 20 (emphasis added) (quoting FAC ¶ 69). Defendants do not explain, however, why such a 21 deviation in language—particularly between two words that could be used synonymously 22 in this context—should prove dispositive against Plaintiff. Defendants’ argument is 23 particularly unpersuasive given that the Court must draw all reasonable inferences in 24 Plaintiff’s favor at this stage of the litigation. Consequently, the Court DENIES Defendants’ Motion to dismiss Plaintiff’s breach 25 26 of express warranty claim. 27 /// 28 /// 25 22-CV-604 JLS (DDL) 1 F. 2 Defendants’ final challenge is to Plaintiff’s prayer for punitive damages. California 3 law permits a plaintiff to recover punitive damages when there is “clear and convincing 4 evidence that the defendant has been guilty of oppression, fraud, or malice.” Cal. Civ. 5 Code § 3294(a). Punitive Damages 6 Before addressing the merits of Defendants’ argument, the Court must clarify the 7 applicable standard. Defendants seem to suggest that California’s “clear and convincing 8 evidence” requirement creates a heightened pleading standard. See Mem. at 19–20; Reply 9 at 9. However, “federal courts sitting in diversity jurisdiction apply state substantive law 10 and federal procedural law.” Gasperini v. Center for Humans., Inc., 518 U.S. 415, 427 11 (1996). So, Plaintiff need only plead facts sufficient to state a plausible claim for punitive 12 damages, as required by Iqbal and Twombly.5 See Omni King, Inc. v. Accelerant Speciality 13 Ins. Co., No. 523CV00048SSSKKX, 2023 WL 6881824, at *3 (C.D. Cal. Apr. 19, 2023). 14 Defendants contend that Plaintiff has failed to allege any facts to support a claim for 15 punitive damages. Mem. at 20. Defendants repeat many of the same arguments made 16 regarding Plaintiff’s fraud claim, asserting that because “Plaintiff has failed to adequately 17 allege fraudulent concealment,” her “prayer for punitive damages should also be 18 dismissed.” Id. Defendants do not, however, argue that Rule 9(b) applies here. 19 The Court is not convinced that Plaintiff’s prayer for punitive damages must rise or 20 fall with her fraudulent concealment claim. The Court dismisses the latter claim, supra, 21 for its failure to sufficiently plead the “where” and “how” of the alleged fraudulent scheme, 22 not for any failure to plead facts relating to Defendants’ mental states. And even if Rule 23 24 25 26 27 28 5 There is some disagreement in the caselaw as to whether—post-Iqbal and Twombly—a plaintiff must plead facts to support an allegation of a defendant’s mental state in establishing a § 3294 claim. See Omni King, 2023 WL 6881824, at *3 (describing the different conclusions reached by district courts). However, an emerging majority of courts appear to require complaints to include such facts. See, e.g., id.; Kelley v. Corr. Corp. of Am., 750 F. Supp. 2d 1132, 1147 (E.D. Cal. 2010); Ducre v. Veolia Transp., No. CV1002358MMMAJWX, 2010 WL 11549862, at *4–5 (C.D. Cal. June 14, 2010). The Parties do not address this issue in their briefs. As the Court finds that the FAC survives Defendant’s Motion even under the standard set by Iqbal and Twombly, the Court adopts the majority’s approach here. 26 22-CV-604 JLS (DDL) 1 9(b) applied, said rule treats the circumstances surrounding fraud differently from 2 conditions of a defendant’s mind. The former must be stated “with particularity,” but 3 “[m]alice, intent,” and “knowledge . . . may be alleged generally.” Fed. R. Civ. P. 9(b). 4 So, while plaintiffs must allege facts to support an allegation relating to a defendant’s state 5 of mind, they need not clear the “elevated” bar set by Rule 9’s particularity requirement. 6 Iqbal, 556 U.S. at 686–87. 7 The Court thus turns to § 3294’s mental state requirements. Allegations of malice 8 support a § 3294(a) claim. Malice can be shown through “despicable conduct,” or conduct 9 that is “carried on by the defendant with a willful and conscious disregard of the rights or 10 safety of others.” Cal. Civ. Code § 3294(c)(1). Despicable conduct “is conduct ‘so vile, 11 base, contemptible, miserable, wretched or loathsome that it would be looked down upon 12 and despised by most ordinary decent people.’” 13 997 F.3d 941, 971 (9th Cir. 2021) (quoting Pac. Gas & Elec. Co. v. Super. Ct., 14 235 Cal Rptr. 3d 228, 236 (Ct. App. 2018)). Meanwhile, conscious disregard “requires 15 that the defendant ‘have actual knowledge of the risk of harm it is creating and, in the face 16 of that knowledge, fail to take steps it knows will reduce or eliminate the risk of harm.’” 17 Id. (quoting Pac. Gas, 235 Cal. Rptr. 3d at 228). Hardeman v. Monsanto Co., 18 Here, Plaintiff sufficiently pleads malice. Plaintiff alleges that Defendants, through 19 reports from patients and healthcare providers, knew SurgiMend had higher reported rates 20 of recurrence, patient injury, and other complications compared to alternative hernia repair 21 devices. See FAC ¶¶ 76, 79. She also alleges that despite knowing that SurgiMend “was 22 not safe for intrabdominal placement,” id. ¶ 78, Defendants continued advertising, selling, 23 and distributing SurgiMend without performing further testing or notifying users of these 24 risks, id. ¶¶ 82, 84–86. As the FAC’s factual allegations allow the Court to reasonably 25 infer malice, Plaintiff has sufficiently stated her punitive damages claim. See, e.g., Omni 26 King, 27 No. CV2005554RSWLAGRX, 2021 WL 4595766, at *6 (C.D. Cal. Apr. 22, 2021). 28 /// 2023 WL 6881824, at *4; Doe 1 v. United Airlines, Inc., 27 22-CV-604 JLS (DDL) 1 2 The Court thus DENIES Defendants’ Motion to dismiss Plaintiff’s prayer for punitive damages. 3 CONCLUSION 4 For the reasons stated above, the Court GRANTS Defendants’ Request for Judicial 5 Notice and GRANTS IN PART AND DENIES IN PART Defendants’ Motion to Dismiss 6 (ECF No. 42). Specifically, the Court GRANTS Defendants’ Motion as to the FAC’s 7 negligence claim—but only to the extent it is based on a manufacturing defect theory— 8 and fraudulent concealment claim; these two claims are DISMISSED WITHOUT 9 PREJUDICE. The Court otherwise DENIES Defendant’s Motion. 10 Plaintiff MAY FILE a second amended complaint within thirty (30) days of the date 11 of this Order. Should Plaintiff elect to file a second amended complaint, it must cure the 12 deficiencies noted herein and be complete in itself without reference to Plaintiff’s prior 13 complaints. See S.D. Cal. CivLR 15.1. Any claims not realleged in the second amended 14 complaint will be considered waived. See Lacey v. Maricopa Cty., 693 F.3d 896, 925, 928 15 (9th Cir. 2012). If Plaintiff fails to file an amended complaint, this action will proceed with 16 Plaintiff’s remaining claims. 17 18 IT IS SO ORDERED. Dated: November 27, 2023 19 20 21 22 23 24 25 26 27 28 28 22-CV-604 JLS (DDL)

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