820 F. Supp. 2d 1045
N.D. Cal.2010Background
- Quatela underwent left shoulder arthroscopy in 2002 and had a PainPump 2 Day Infusion Set implanted by her surgeon.
- The pump delivered Marcaine into the glenohumeral joint for about 72 hours post-surgery.
- Quatela alleges the pump caused glenohumeral chondrolysis, a progressive joint cartilage destruction.
- Quatela asserts six claims: negligence, strict product liability, breach of express and implied warranties, negligent misrepresentation, and fraudulent concealment.
- Stryker moved to dismiss four claims and to strike certain allegations; the parties later amended the complaint and the court treated the motion as directed at the amended complaint.
- The court granted in part and denied in part the motion, granting leave to amend some claims and denying the motion to strike.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Privity and breach of warranty | Quatela seeks breach of express and implied warranties despite lack of privity. | Stryker contends privity is required for implied warranty and generally not for express warranty; privity may bar both claims. | Implied warranty claim dismissed for lack of privity; express warranty claim survives with leave to amend. |
| Express vs. implied warranty pleading | Express warranty may be pled without privity; Evraets allows forward progress. | Implied warranty requires privity; express warranty allegations are too general. | Express warranty claim survives with leave to amend; implied warranty claim dismissed without leave to amend. |
| Negligent misrepresentation and fraudulent concealment pleading | Claims are supported by time, place, and manner of interactions inferred from the complaint. | Claims must meet Rule 9(b) specificity separating each defendant's conduct. | Dismissed with leave to amend for failure to meet Rule 9(b) specificity. |
| Motion to strike warning-related allegations | Allegations provide background/context on duty to warn. | Allegations are improper conclusory statements about duty to warn. | Motion to strike denied; insufficient to warrant striking as impertinent or scandalous. |
| Preemption and FDA-related misrepresentation allegations | Allegations about warnings/communications are background and not preempted. | Federal law preempts state-law claims about misrepresentations to FDA. | Not expressly resolved beyond ruling on pleading; strike denied for mischaracterizations as background. |
Key Cases Cited
- Burr v. Sherwin Williams Co., 42 Cal.2d 682 (1954) (privity generally required for warranty actions; exceptions exist)
- Evraets v. Intermedics Intraocular, Inc., 29 Cal. App. 4th 779 (1994) (express warranty privity and reliance; pleading allows express warranty claim to go forward)
- Seely v. White Motor Co., 63 Cal.2d 9 (1965) (abolished privity for some express warranty; consumer reliance on manufacturer representations)
- Rodrigues v. Campbell Industries, 87 Cal. App.3d 494 (1979) (recognizes express warranty considerations in California)
- Gottsdanker v. Cutter Laboratories, 182 Cal. App. 2d 602 (1960) (expands privity exceptions to include certain drugs/foodstuffs)
- Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) (California privity rules limit federal diversity-based reinterpretations)
- Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) (Rule 9(b) pleading requires specificity against each defendant)
- Lancaster Community Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397 (9th Cir. 1991) (RICO pleading requires defendant-specific allegations)
- Carlin v. Superior Court, 13 Cal.4th 1104 (1996) (duty to warn in prescription drug cases addressed to physicians)
- Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341 (2001) (federal misrepresentation to FDA preemption concerns)