Inferior vena cava filters resemble what we used to call "daddy long legs." You know what we mean: the spider-like creatures with small centers, from which long, bent legs emanate in all directions. That is sort of what IVC filters look like, although any resemblance ends there. Manufactured from thin flexible metal, IVC filters can be implanted in the big vein that returns deoxygenated blood to your heart—the vena cava—to trap clots (or anything else) and prevent them from traveling to your heart and lungs, where they can cause serious mischief. They are potentially life-saving devices. They last came to our attention the other day when we received a robotic phone call asking us if we knew anyone with an IVC filter who might want to sue. Ye gods.
An order granting a motion to dismiss in an IVC filter case crossed our desks this week, and its discipline and thoroughness caught our eye. The case is Dunson v. Cordis Corp., No. 16-06-03076, 2016 U.S. Dist. LEXIS 94873 (N.D. Cal. July 20, 2016). The complaint in Dunson included the claims of six different plaintiffs whose claims appear to be unrelated, except that they have the same lawyers and were treated with similar filters made by the same manufacturer. Id. at **3-4. They all alleged complications from filter implantation, and they alleged the full range of product liability claims. Only the express warranty claim survived, and here is why:
Strict liability for design defect: Guess what. The plaintiffs sued in California, and California does not permit strict liability design defect claims in prescription medical device cases. Plaintiffs tried to get around this by asserting in their opposition, for the first time, that some of them had their filters implanted in Arizona and Pennsylvania and that those states' laws therefore should apply. Id. at **9-12. This position raises so many questions: If they were treated outside California, do they also reside outside California? If so, why are Pennsylvania and Arizona residents suing a Florida corporation with an Ohio headquarters in California's courts? If they are from out of state, why did they conceal those facts and wait until opposing a motion to dismiss to admit them? The answers are that these are forum-shopping plaintiffs who are importing their claims along with hundreds of others into California for no legitimate purpose. Their choice-of-law argument did not work this time around. The district court still dismissed their design defect claim, and it admonished the out-of-state plaintiffs to allege facts in their amended complaint to support their choice of law. Id. at **12-13. The court was "skeptical."
Strict liability for inadequate warnings: This claim failed under one of our favorite issues—warnings causation. Sure, the plaintiffs alleged that the manufacturer knew or should have known of the filters' alleged risks at the time of their distribution. But the complaint "fail[ed] to sufficiently plead (1) the [manufacturer] inadequately warned plaintiffs' own treating physicians of the risks; and (2) that each of plaintiffs' physicians would have acted differently upon receipt of proper warnings." Id. at **14-15 (emph. in original). There can be no failure to warn in a vacuum, and if the plaintiffs expected to plead an inadequate warnings claim, they had to allege facts showing that the alleged inadequate warning actually had an adverse impact on them. Maybe they will come up with those facts in their amended complaint. Maybe they won't. Either way, it is nice that the district court set the correct bar at the outset.
Strict liability for manufacturing defect: The plaintiffs supported their manufacturing defect claim with allegations that the filters should have been electropolished. But that's not a manufacturing defect. A manufacturing defect is when the product "is one that differs from the manufacturer's intended result or from other ostensibly identical units of the same product line." Id. at *16. The alleged failure to electropolish would apply to every filter, which is an alleged design defect. Having failed to identify how their filters differed from the manufacturer's intended result, the manufacturing defect claim was polished off.
Fraud-based claims: Plaintiffs alleged their fraud claims against the "defendants" and did not even bother to identify who allegedly committed the fraud. From that starting point, the district court had no difficult applying Rule 9(b) to dismiss the fraud claims. As the court held, "Where multiple defendants are involved in a fraud suit a plaintiff must, at a minimum, 'identify the role of [each] defendant[ ] in the alleged fraudulent scheme.'" Id. at *19 (citing Swartz v. KPMG LLP, 476 F.3d 756, 764-65 (9th Cir. 2007)). Plaintiffs failed to differentiate which defendants were allegedly responsible. They also failed to alleged the "time, place and manner of each act of fraud" and the "who, what, when, where, and how" of the charged misconduct. Id. at *20. Finally, the plaintiffs "fail to plead with sufficient specificity how they or their physicians relied on any alleged misrepresentation." Id. There's that pesky causation issue again, and we are glad to see the court hold the plaintiffs to their pleading burden.
Express warranty: The district court's ruling on fraud makes us wonder how it came out a different way on express warranty, which is the only claim that survived the manufacturer's motion to dismiss. To state a claim for breach of express warranty, a plaintiff must allege "(1) the exact terms of the warranty; (2) reasonable reliance thereon; and (3) a breach of warranty that proximately caused plaintiff's injury." Id. at *21 (citing Baltazar v. Apple, Inc., 2011 WL 588209, at *2 (N.D. Cal. Feb. 10, 2011). The court ruled that the plaintiffs had sufficiently alleged the "exact terms" of the express warranty with allegations that the filters would not come with certain complications. That may be fine as far as it goes, but what about reliance and causation? This court—which held the plaintiffs to their pleading burdens on inadequate warnings and fraud (including reliance and causation)—seems to have let them off the hook on those very same issues when it comes to express warranty. We can't see why. Maybe the manufacturer did not raise those issues in its motion. We don't know.
Breach of implied warranty: We also don't know why plaintiffs in California allege breach of implied warranties in medical device cases, because they can never allege the required element of privity of contract. These plaintiffs could not either, so the court dismissed those claims with prejudice. Id. at **23-24. The sole exception was a plaintiff from Massachusetts (another forum shopper), who can attempt to plead facts supporting the application of Massachusetts law in an amended complaint.
The prayer for punitive damages fell too, but as with many of the other claims, the plaintiffs will try to resurrect it in an amended complaint. On the whole, this is a strong order that applies the law exactingly to the pleadings, and probably signals the intent to apply the law similarly on a going forward basis. On a broader level though, we wonder about the district court's indulgence of the forum-shopping plaintiffs. The district court dismissed their claims, but allowed them to amend and to allege facts supporting the choice of another state's law. Maybe we are reading too much into that, or maybe the choice of forum is being addressed in other motions. This was a CAFA removal, so other motion may be in play where the forum is squarely at issue. Interesting stuff, to say the least, and we will be watching to see how it plays out.
This article is presented for informational purposes only and is not intended to constitute legal advice.
