ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT DAYOL, INC’S MOTION TO DISMISS
Before the Court is Defendant Davol,
Factual Background
On January 27, 2015, Plaintiff Jesus Ta-pia (“Plaintiff’) filed a complaint against Defendants Davol, Inc., Bard Devices, Inc., and C.R. Bard, Inc. (“Defendants”) for personal injuries suffered as a proximate result of Defendants’ negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling, sale, and/or post-market surveillance and corrective action of the Bard Composix Kugel Hernia Repair Patch (“Kugel Patch” or “Patch”). (Dkt. No. 1.) Defendants manufactured and sold the Ku-gel Patch for use in repairing hernias. (/¿¶2.)
The Kugel Patch at issue was manufactured and sold by Defendants between 2001 and March 2006. (Id. ¶ 22.) The Kugel Patch is a prosthetic device used primarily to repair ventral and inguinal hernias. (Id. ¶23.) The Patch is eomr posed of two sides where one side is constructed of a double layer of monofilament polypropylene (mesh), and the other side is a barrier of expanded polytetrafluoroethy-lene (ePTFE). (Id.) This double layer creates a positioning pocket, in which a polymer “memory recoil ring” is placed. (Id.) During the hernia repair surgery, the Ku-gel Patch is inserted behind the hernia defect through a small incision. (Id.) The memory recoil ring then allows the Kugel Patch to swing open and maintain its shape during placement. (Id.)
In October 2000, Defendants submitted a section 510(d) notification of intent to market the Kugel Patch with the Federal Drug Administration (“FDA”). (Id. ¶ 24.) The FDA approved the Kugel Patch for marketing as a Class II medical device in January 2001. (Id.) Immediately after the Kugel Patch was placed on the market, Defendants became aware and obtained knowledge it was defective and causing serious injury to those persons in whom it had been implanted. (Id. ¶ 25.)
Defendants were required to conduct post market surveys as part of the device validation process. (Id. ¶26.) On or about January 2006, the FDA inspected a Kugel Patch manufacturing facility which resulted in the FDA issuing an Establishment Inspection Report (“2006 EIR”). (Id.) The 2006 EIR found that the post market survéy validation process of the device was incomplete and failed to include all data from physicians surveyed during this time, including those which demonstrated unfavorable or “dissatisfied” results. (Id.) According to Plaintiff, these complaints and concerns of physician surveyors were actively concealed by Defendants from Plaintiff, the healthcare community, and other consumers. (Id.)
No later than September 2004, Defendants became aware of serious problems with the weld process involving the memory recoil ring. (Id. ¶27.) Despite attempts to correct the problem, the corrective measures were ineffective and the process was still not in control. (Id.) Defendants were aware that these weld issues had existed from the time the Kugel Patch was placed on the market and all current sizes and lots suffered from this
According to the 2006 EIR, Davol corporate executives informed the FDA that the spring and summer period of 2006 showed a marked increase in the number of. adverse event complaints regarding the Ku-gel Patch and the memory recoil ring. (Id. ¶ 28.) As of August 2005, Defendants received at least the following. adverse event reports: seventeen (17) instances of ring breaks, at least one of which resulted in death; two (2) unexplained bowel perforations; four (4) ring breaks during implant procedures; five (5) cases of device deformity; and eight (8) instances' of bowel' adhesions to the Patch. (Id.)
Despite the increasing number of complaints and complications arising from the Kugel Patch, Defendants failed to cease distribution or notify Plaintiffs, physicians, hospitals, the FDA, or other consumers of the severity of complications associated with the unreasonably dangerous and defective Kugel Patch until late December 2005. (Id. ¶ 29.)
In December 2005, there was a limited recall of “Extra Large” sized. Kugel Patches , even though Defendant knew that there were similar serious adverse events as to the nonrecalled Kugel Patch sizes. (Id. ¶ 30.) Defendants also violated federal law by not timely notifying the FDA of the December 2005 recall. (Id.)
The FDA classified the December 2005 recall as a Class 1 recall which is the most serious type of recalls and involve situations where the FDA believes there is a reasonable probability that use of the product will cause serious injury or death. (Id. ¶ 31.)
The recall was due to the breakage of the memory recoil ring that opens the Kugel Patch, under stress or pressure, including the stress of implantation. (Id. ¶ 32.) The Kugel Patch is also known to become deformed and migrate within the body. (Id.) These defects are known to cause severe injuries including, inter alia, perforation of the bowel, ring ■ migration through the abdominal wall, abnormal chronic enteric fistulae, infection, abscesses, bowel obstruction, intense abdominal pain, peritonitis, sepsis, and adhesions between the bowel and the Patch. (Id.) The following conditions are symptoms of these injuries: fever, unexplained or persistent abdominal tenderness, vomiting, abnormal bowel movements, tenderness at implant site, abdominal distention, or other unusual symptoms. (Id.)
On March 24, 2006, Defendants expanded the recall to include the following Kugel Patch sizes: 1) “Oval” Patches, 2) “Large Circle” Patches, and 3) “Large Oval” Patches. (Id. ¶ 34.) In January 2007, Defendants expanded the recall for the second time, to include further production lots of the “Large Oval” and “Large Circle” Kugel Patches. (Id. ¶ 35.)
The FDA inspected the Cranston, Rhode Island Kugel Patch manufacturing facility for the second time from January 23, through March 13, 2007. (Id. ¶36.) On April 24, 2007, the FDA issued a “Warning Letter” to Defendants that the inspection again uncovered “serious violations of the law” with regards to the quality assurance -programs used in manufacturing the Kugel Patch. (Id.)
These violations were of such a degree and nature that the FDA determined the Kugel Patch to be “adulterated” under section 501(h)’ of the Federal Food, Drug and Cosmetic Act. (Id.) The warning letter specifically mentions, inter alia, the following violations:
a. Failure to establish and maintain adequate corrective and preventative action procedures which ensure identification of actions needed to correct andprevent the recurrence of nonconforming product and other quality problems;
b. Failure to establish adequate management controls to ensure that an effective quality system has been established and maintained;
c. Failure to document the implementation of corrective and preventative actions;
d. Failure to validate your device’s design to ensure that the device conforms to defined user needs and intended uses;
e. Failure of your firm to establish procedures to completely address the identification, documentation, evaluation, segregation, disposition and investigation of non-conforming product.
(Id.)
Around December 15, 2005, Plaintiff Jesus Tapia underwent a hernia repair procedure during which a Bard Composix Ku-gel Hernia Patch (Ref. #0010202, Lot #43IPD472) was implanted. (Id. ¶37.) On or about January 27, 2013, Plaintiff Jesus Tapia was admitted to the emergency department at Menifee Valley Medical Center. (Id. ¶39.) He presented with redness and pain above his Kugel Patch surgical site. (Id.) He was diagnosed with abdominal wall mesh infection and abscess. (Id.) Around February 3, 2013, Plaintiff underwent emergency surgery to remove the Kugel Patch. (Id. ¶ 40.) During the removal procedure, it was noted that the plastic ring that supported the Kugel Patch broke and caused an enterotomy which led to Kugel Patch infection. (Id.)
As a result, Plaintiff will require continuous monitoring of his Kugel Patch related injuries for the remainder of his life. (Id. ¶42.) His physical injuries, proximately caused by his implantation with a Kugel Patch, are severe, life threatening, and permanent, and have adversely impacted the quality of his life. (Id.)
Plaintiff alleges that Defendants knew, or in the exercise of reasonable care should have known, prior to the recalls of the Kugel Patch and prior to its implantation into Plaintiff, that the Patch was not properly developed, tested, designed, manufactured, inspected, marketed, labeled, promoted, distributed and sold, were not suitable for the purpose they were intended, and were unreasonably likely to injure users of the products. (Id. ¶ 45.) Plaintiff also alleges that Defendants did not timely apprise Plaintiffs, the healthcare industry, the FDA, or other consumers of the defective and unreasonably dangerous condition of the Kugel Patch, despite Defendants’ knowledge of said condition. (Id. ¶46.) Plaintiff further maintains that Defendants misrepresented the known risks inherent in the use of the Kugel Hernia patch. (Id. ¶ 47.)
Discussion
A. Legal Standard on Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure (“Rule”) 12(b)(6) permits dismissal for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). . Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t,
A complaint may survive a motion to dismiss only if, taking all well-pleaded factual allegations as true, it contains enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
Where a motion to dismiss is granted, “leave to amend should be granted ‘unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.’ ” DeSoto v. Yellow Freight Sys., Inc.,
With the exception of the first count of negligence/products liability, Defendant moves to the dismiss all causes of action which include the following:
Count II: Strict Products Liability — Design Defect H
Count III: Strict Products Liability — Manufacturing Defect to
Count IV: Strict Products Liability — Failure to Warn CO
Count V: Products Liability — Breach of- Implied Warranty of Fitness for a Partictfi. ular Purpose.and Breach of Implied Warranty of Merchantability ular Purpose.and Breach of Implied Warranty of Merchantability
Count VI: Products Liability — Breach of Express Warranty
Count VII: Negligent Misrepresentation
Count VIII: Fraud and Deceit
In opposition, Plaintiff withdraws his causes of action for strict products liability — design defect (Count II); and breach of implied warranty of fitness for a particular purpose (subpart of Count V). Accordingly, the Court GRANTS Defendants’ motion to dismiss these two causes of action as unopposed.
B. Strict Products Liability — Counts III and IV
A “manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” Anderson v. Owens-Corning Fiberglas Corp.,
Defendant argues that Plaintiff does not allege how his Patch deviated from the intended design specifications or how such deviation caused Plaintiffs injuries. Plaintiff asserts that he has sufficiently alleged a manufacturing defect.
A manufacturing defect is “one that differs from the manufacturer’s intended result or from other ostensibly identical units of the same line of products.” Barker v. Lull Eng’g Co.,
Contrary to Defendant’s argument that Plaintiff only alleges a boilerplate allegation that could be inserted into any products liability complaint, the complaint alleges that Defendants became aware of serious problems with the weld process involving the memory recoil ring causing the ring to break during or after implantation. (Dkt. No. l,.Compl. ¶¶27, 32.) Despite corrective measures, the problem persisted. (Id. ¶.¶ 27,. 28.) Plaintiff asserts that numerous failures were reported to Defendants and the device was ultimately subject to a Class I recall due .to the breakage of the memory recoil ring under stress or pressure. (Id. ¶¶ 28, 30-32.) All Kugel Patches were intended for use in a similar fashion to repair hernias. (Id. ¶¶ 23, 30.) Plaintiffs Patch differed from Defendants’ intended result and/or.from other identical units of the same product line. (Id. ¶ 81.) Plaintiff also, alleges that his Kugel .Patch was.used in a reasonably foreseeable manner but. that Plaintiff’s “plastic ring that supported the Kugel Patch broke and caused ari enterotomy which led to Kugel Patch infection.”. (Id. ¶¶ 40, 82.) As a result, Plaintiff suffered severe and pérmanent physical injuries. (Id. ¶ 83.)
The allegations that the memory coil ring differs from the manufacturer’s intended result and that Plaintiffs, injuries were due to breakage of the plastic ring inside his , Kugel Patch causing him an infection sufficiently state a claim for strict products liability for a manufacturing defect. Accordingly, the Court DENIES Defendant’s motion to dismiss the strict products liability for a manufacturing defect.
2. Count IV — Strict Products Liability — Failure to Warn
Defendant maintains that the strict liability failure to warn cause of action is deficient because the complaint does not adequately allege what Defendant failed to warn about or how any such failure caused Plaintiffs alleged injuries. Plaintiff asserts that he has identified the specific nature of defect of Defendant’s product, that Defendants were aware of the problem and they failed to provide any labeling or instructions for use that warned of this known defect. '
The California Supreme Court has applied strict liability to manufacturers of all products “for failure to warn of known or reasonably scientifically knowable risks_” Carlin v. Superior Court,
California applies the “learned intermediary” doctrine which provides that the duty to warn in the case of medical devices runs to the physician, not the patient. Plenger v. Alza Corp.,
Plaintiff alleges Defendants failed to warn about the faulty weld process on the memory recoil ring, which caused it to break, (Dkt. No. 1, Compl. ¶¶27, 28, 32), and failed to warn that it failed to comply with FDA minimum safety design requirements and that there were safer alternative treatment methods available. (Id. ■ ¶¶ 33(g), 36(d).) Specifically, the complaint asserts that the device was subject to a Class i recall, because the memory recoil rings inside the device were not strong enough to resist pressure or stress from implantation and/or other forces once permanently implanted, and that once broken, the plastic ring could cause perforations of the bowel and other serious injuries. (Id. ¶¶ 28, 31, 32). Plaintiff further alleges that by September 2004, Defendants were aware of “serious problems with the weld process involving the memory recoil ring” and that despite efforts to correct the problem, Defendants knew “the process was still not in 'control.” (Id. ¶ 27). Plaintiff further asserts that Defendant violated FDA minimum safety regulations by failing to perform strength testing on the memory recoil rings and by failing to 'establish that the device met user needs. (Id. ¶¶ 33(g), 36(d).) In the 2006 EIR, the FDA determined that Defendants failed to report adverse events associated with the memory recoil ring breaks and had understated the severity of injuries in other device failure reports, including one possibly related to a patient death. (Id. ¶¶ 33(a), (f).) Based on these allegations, the Court concludes that Plaintiff has sufficiently alleged what Defendant failed to warn about.
As to Defendant’s second argument regarding causation, while Plaintiff alleges the specific defect in Defendants’ product and specific warnings they failed to provide, he does not allege that Defendants failed to warn his own prescribing physician and that his mm physician would not have used the Patch if warnings had been given. Instead, Plaintiff makes allegations as to “physicians” in' general, and the “healthcare community” and does not allege any facts as to his own prescribing physician. (See Dkt. No. 1, Compl. ¶¶ 27, 29, 87, 89.)
Based on the fact that Plaintiff has failed to allege that Defendants -failed to warn his prescribing physician
C. Breach of Warranty (Count V & VI)
In general, privity of contract is required in an action for breach of express warranty and breach of implied warranty. Burr v. Sherwin Williams Co., 42 Cal.2d 682, 695,
As to the implied warranty, California courts have recognized an exception to the privity requirement in cases involving foodstuff “where it is held that an implied warranty of fitness for human consumption runs from the manufacturer to the ultimate consumer regardless of privity of contract.” Burr,
In the motion, the parties dispute whether privity of contract is required for the causes of action for breach of the implied warranty of merchantability and breach of express warranty.
1. Breach of the Implied Warranty of Merchantability
Defendant argues privity is a requirement for breach of the implied warranty of merchantability. In opposition, Plaintiff argues that the rationale behind the cases that address the exception to the privity requirement in foodstuff and prescription drug cases should apply to implanted medical devices. Second, he argues there is a distinction between breach of the implied warranty of fitness for a particular purpose, which he concedes requires privity, and breach of implied warranty of merchantability which he argues does not require privity. In reply, Defendant argues that Plaintiff fails to cite and it has not found any authority that distinguishes between the implied warranty of fitness and implied warranty of merchantability in applying the privity requirement.
Plaintiff does not provide any legal support for his argument that the exception to the privity requirement in food stuff and prescription drug cases should apply to the Patch, a medical implant device. Recent cases concerning medical implant devices have held that the implied warranty of merchantability requires privity. Quatela v. Stryker Corp.,
Moreover, Plaintiff has not provided, and the Court has not found cases that distinguish the privity requirement for the implied warranty of fitness and implied warranty of merchantability. The Court agrees with Defendant that courts have applied the privity requirement to both breach of the implied warranty of fitness, and breach of the implied warranty of merchantability. See Blanco,
Accordingly, the Court GRANTS Defendant’s motion .to dismiss the breach of the implied warranty of merchantability claim with prejudice for lack of privity.
2. Breach of Express Warranty
Defendant argues that the breach of express warranty claim fails because there is no privity alleged. Second, it maintains that Plaintiff fails to allege the elements of a breach of express warranty claim with sufficient facts to assert the exact terns of the warranties, and fails to allege facts to plausibly infer justifiable reliance. Plaintiff argues that the court of appeal in Evraets v. Intermedics Intraocular, Inc.,
An express warranty “is a contractual promise from the seller that the goods conform to the promise.” Daugherty v. American Honda Motor Co., Inc.,
In general, privity is a required element of a breach of express warranty cause of action. Burr,
Since Burr, the California Supreme Court has made statements stating:that privity is no longer required in an express warranty claim. Seely v. White Motor Co.,
Since these cases, California courts of appeal have asserted the continuing viability of privity in a express warranty claim but also assert all the exceptions to the general rule. See Jones v. ConocoPhillips,
Defendant argues that the footnote in the Evraets case where the court stated “privity is not a requirement for actions based upon ah express warranty” is not binding and cites to post -Evraets cases that still require privity in a claim for breach of express warranty claim.
After a review of the caselaw, the Court concludes that Plaintiffs argument that Evraets abolishes the privity requirement is too simplistic and does not consider the development of the exceptions to the privity requirements for express warranty cases due to the development of the doctrine of strict liability. See Jones,
Whether privity has been abolished for express warranty claims is not dispositive in this case because the complaint alleges an exception to the general rule that privity is required. Here, Plaintiff alleges an express warranty based on the manufacturer’s written representations in labels and written advertising materials. (Dkt. No. 1, Compl. ¶ 109.) Therefore, Plaintiffs express warranty claim, as alleged, does not require privity of contract. See Fundin,
The Court further concludes that the “learned intermediary” rule applies to a breach of express warranty claim predicated on a failure to warn claim. See Carlin,
As to whether the complaint alleges the terms of the express warranty, the complaint alleges that “Defendants expressly warranted that the Kugel Patch was safe and fit for use by consumers, was of merchantable quality, did not produce dangerous side effects, and was adequately tested and fit for its intended use.” (Dkt. No. 1, Compl. ¶ 109.) It also alleges that Defendants expressly warranted that the side effects it did produce were accurately reflected in the warnings and did not pose dangerous health risks greater than those risk associated with other similar hernia repair devices. (Id. ¶ 114.) The Court concludes that these allegations sufficiently allege the terms of the express warranty.
Thus, the Court GRANTS Defendant’s motion to dismiss breach of express warranty claim with leave to amend.
D. Fraud Based Claims — Negligent Misrepresentation and Fraud/Deceit
Plaintiff alleges causes of action for negligent misrepresentation (Count VII) and fraud and deceit which Plaintiff construes as “fraudulent concealment” and “fraudulent misrepresentation” (Count VIII).
Defendant asserts that Plaintiff has failed to satisfy the heightened pleading requirement under Federal Rule of Civil
Where a plaintiff alleges fraud in the complaint, Rule 9(b) requires a plaintiff to “state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed.R.Civ.P. 9(b). A party must set forth “the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation.” Odom v. Microsoft Corp.,
As to multiple fraud defendants, a plaintiff “must provide each and every defendant .with enough information to enable them ‘to know what misrepresentations are attributable to them and what fraudulent conduct they are charged with.’ ” Vega v. JPMorgan Chase Bank, N.A.,
First, Plaintiff improperly lump the three corporate defendants together as “Defendants” without specifying which Defendant did what. Moreover, as to each Defendant corporation, a plaintiff must allege the names of people who made the fraudulent misrepresentations and the content of the misrepresentation. See id. Plaintiffs failure to allege facts as to each of the three corporate Defendants requires dismissal of these causes of action.
“The required elements for fraudulent concealment are (1) concealment' or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage' as a result of the concealment or suppression of the fact.” Graham v. Bank of America, N.A.,
The Ninth Circuit has held that claims of nondisclosure and omissions are subject to the pleading standard of Rule 9(b). Kearns v. Ford Motor Co.,
As to the claim for fraudulent concealment, the Court concludes that Plaintiff has sufficiently alleged “what” was concealed, “when” it was concealed and “why” it was concealed. Specifically, Plaintiff alleges that Defendants concealed that there was a problem with the welds on the memory recoil rings that were causing them to break, (id. ¶¶ 25, 27, 32), that these failures caused bowel perforations and other serious injuries,' (id. ¶ 32), that 'in violation of federal law, Defendants failed .to test the strength, of the welds on the memory recoil rings before marketing the. product and failed to ensure the-device would be safe, (id. ¶¶ 33(g),. 59(c)), and that there .were safer alternative devices, (id. ¶ 59(e)). This information was not disclosed on their labeling materials and instructions for use distributed with the device. (Id. ¶¶94, 130, 131.) The complaint alleges that Defendants knew about the defect and concealed it prior.to the device being implanted in Plaintiff on December 15, 2005, (id. ¶¶ 5, 27, 28, 29), and concealed the information in order to induce health care providers to continue to purchase and use the device. (Id. ¶ 135.)
While Plaintiff has alleged what, when and why as to the concealment, Plaintiff fails to- assert facts as to causation alleging that his own prescribing physician would not have used the device had Defendants not concealed these facts. See Jones v. Medtronic,
On the fraudulent concealment count, Plaintiff argues he should be subject to a relaxed Rule 9(b) standard where facts constituting fraud-are particularly within the defendant’s knowledge and are otherwise inaccessible to the plaintiff. See United States v. SmithKline Beecham Clinical Labs.,
The lenient standard applies to securities fraud cases. Deutsch,
It is not clear whether a relaxed Rule 9(b) standard would.apply in this products liability case and Plaintiff has not provided legal authority to support his position. However, the Court need not determine whether a lenient Rule 9(b) standard should apply since the Court has concluded that Plaintiff has sufficiently alleged facts to support-the specific facts of what information was concealed. Plaintiff has only failed to assert causation and the role of each Defendant in the concealment. Ac
Fraudulent misrepresentation requires “(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for-its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) .the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiffs reliance on the defendant’s representation was a substantial factor in causing that harm to the plaintiff.” Graham,
As to the affirmative misrepresentation claims, Defendant argues that the complaint fails to allege the specific contents of the misrepresentations, when and where Defendants allegedly made them, and to whom they were made and why they are false, and do not specify which Defendant made which misrepresentation. Plaintiff appears to concede that his affirmative misrepresentation claim does not meet the heightened Rule 9(b) pleading requirement because he' seeks leavé to supplement this claim once he has the opportunity to depose the prescribing physician. The Court agrees with Defendant that Plaintiff has failed to allege facts with sufficient particularity under Rule 9(b) where the complaint does- not allege the specific content of the misrepresentations, where. they are located, .and when and where the misrepresentations were made and who made them.
Accordingly, the Court GRANTS Defendant’s motion to dismiss the fraudulent concealment, fraudulent misrepresentation and negligent misrepresentation counts with leave to amend.
E. Leave to Amend
In his opposition, Plaintiff seeks leave to amend if the Court dismisses any of his claims. Leave to amend, whether or not requested by the plaintiff, should be granted unless amendment would be futile. Schreiber Distrib. Co.,
Conclusion
Based on the above, the Court GRANTS in part and DENIES- in part Defendant Davol, Inc.’s motion to dismiss. Specifically:
1. The Court GRANTS Defendant’s motion to dismiss the claims for strict products liability — design - defect (Count II); and breach of the implied warranty of fitness for a particular purpose (Count V) as unopposed. •
2. The Court GRANTS Defendant’s motion to dismiss the breach of the implied warranty of merchantability (Count V) without leave to amend.
3. The Court GRANTS Defendant’s motion to dismiss strict products liability— failure to warn (Count IV); breach of ex
4.The Court DENIES Defendant’s motion to dismiss the cause -of action for strict products liability — manufacturing defect (Count III).
Plaintiff shall file an' amended complaint no later than August 14, 2015. . The hearing set for July 31, 2015 shall be vacated.
IT IS SO ORDERED.
. Plaintiff’s argument that the Court can infer, based on all the facts alleged, that Plaintiff's prescribing physician was never made
. While Evraets concerned only a breach of the implied warranty of fitness for a particuto assert different standards on the issue of lar purpose, no subsequent case has distin
. However, the cases cited by Defendant are consistent with the California caselaw on express warranties and do not support Defendant’s argument. For example, in Cellars v. Pacific Coast Packaging, Inc.,