2018-00232770-CU-PL

Mark Montgomery vs. Wright Medical Technology, Inc.

Nature of Proceeding: Demurrer to Complaint (Microport Orthopedics, Inc.)

Filed By: Renner, J. Robert

Defendant MicroPort Orthopedics, Inc.’s (MicroPort) demurrer to the first amended complaint (FAC) is SUSTAINED with leave to amend.

Plaintiffs’ request for judicial notice is GRANTED.

Overview

This is a products liability case involving a hip replacement device (Device). The plaintiffs are Mark Montgomery (Mark) and Ann Montgomery (Ann) (collectively “Plaintiffs”.) Plaintiffs allege that Mark received the Device in 2008 as a surgical implant and suffered pain, decreased mobility and emotional distress as a result. He eventually required revision surgery to remove and replace the Device. According to Plaintiffs, the Device was defective and was likely to fail after implantation. They also allege that this information was concealed from surgeons and patients.

With respect to MicroPort, Plaintiffs allege that co-defendants that developed the Device sold their “OrthoRecon division” to MicroPort in 2013. Plaintiffs allege that the FDA notified MicroPort in 2014 that regulatory obligations affecting the Device were MicroPort’s responsibility going forward. Among other things, Plaintiffs allege that MicroPort inherited an ongoing duty to advise doctors who had implanted any Device about problems and complaints with the Device. (See FAC, ¶ 77.) They also allege an ongoing duty to recall the Device if the risks outweighed the benefits. (Id.) And they allege that MicroPort succeeded to its predecessors’ liability for the Device.

The FAC contains causes of action against MicroPort negligence and Ann’s cause of action for loss of consortium. MicroPort demurs on grounds the allegations fail to state any valid cause of action. Plaintiffs oppose.

The demurrer is sustained for two reasons. First, Plaintiffs have not alleged facts taking MicroPort outside the general rule against imposing liability on a successor for defects in the predecessor’s products:

Liability will be imposed on the successor where: “(1) there is an express or implied agreement of assumption, (2) the transaction amounts to a consolidation or merger of the two corporations, (3) the purchasing corporation is a mere continuation of the seller, or (4) the transfer of assets to the purchaser is for the fraudulent purpose of escaping liability for the seller’s debts. [Citations.]”

(Monarch Bay II v. Prof’l Serv. Indus. (1999) 75 Cal.App.4th 1213, 1216.) Granted, there is also an exception specifically directed at successors to products manufacturers. This exception, however, only applies to strict liability causes of action, not ordinary negligence. (See id., pp. 1217-1218.) As a result, the allegations do not establish a theory of successor liability that saves the subject causes of action from demurrer.

Second, California has not adopted the “independent duty” theory that other jurisdictions have applied to successors of products manufacturers. (See Burroughs v. Precision Airmotive Corp. (2000) 78 Cal.App.4th 681, 695, 698.) Imposing a duty on MicroPort to warn of defects in products or recall products that its predecessor manufactured would be an extension of the law, and this court declines to chart new territory.

In reaching it conclusion, the court is aware that MicroPort, as a successor to a products manufacturer, must comply with FDA regulations that require “postmarket surveillance” of those products. (See RJN, Exh. 1; FAC, ¶ 77.) But the regulations do not expressly impose a duty to warn or recall. Absent an authority holding that the regulations in question somehow yield a duty to warn or recall, the court will not recognize any such duty.

Because this is the court’s first ruling on MicroPort’s objections to the allegations, leave to amend is granted.

No later than 11/14/18, Plaintiffs may file and serve a second amended complaint (SAC) in an attempt to state valid causes of action against MicroPort for negligence and loss of consortium; response(s) due within 30 days thereafter, 35 days if the SAC is served by mail.

Although not required by any statute or rule of court, MicroPort is requested to attach a copy of the instant minute order to the SAC to facilitate the filing of the pleading.

If any defendant intends to demur to the SAC or move to strike, it shall determine if any other defendant who has appeared in this action also intends to demur or move to strike. If so, all such defendants shall coordinate a single hearing date for the demurrers and motions to strike. Additionally, a copy of the SAC shall be included with the moving papers.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is required.

Item 17 2018-00232770-CU-PL

Mark Montgomery vs. Wright Medical Technology, Inc.

Nature of Proceeding: Demurrer to Complaint (Wright Medical Technology, Inc.)

Filed By: Renner, J. Robert

** If any party requests oral argument, then at the time the request is made, the requesting party shall inform the court and opposing counsel of the specific cause(s) of action or issue(s) on which oral argument is sought. **

Defendant Wright Medical Technology, Inc.’s (Wright) demurrer to the first amended complaint (FAC) is SUSTAINED in part and OVERRULED in part.

This is a products liability case involving a hip replacement device (Device). The plaintiffs are Mark Montgomery (Mark) and Ann Montgomery (Ann) (collectively “Plaintiffs”.) Plaintiffs allege that Mark received the Device as a surgical implant and suffered pain, decreased mobility and emotional distress as a result. He eventually required revision surgery to remove and replace the Device. According to Plaintiffs, Wright and other defendants knew or should of have known that Device was defective and was likely to fail after implantation. They also allege that Wright and others concealed from surgeons and patients the many complaints about the Device that were accumulating.

The FAC contains causes of action for strict products liability (manufacturing defect), strict products liability (failure to warn), negligence, negligence (failure to recall/retrofit), negligent misrepresentation and Ann’s cause of action for loss of consortium. Wright demurs to two of these causes of action on grounds the allegations fail to state a valid cause of action. Plaintiffs oppose.

Discussion

The First Cause of Action for Strict Products Liability (Manufacturing Defect)

The demurrer is OVERRULED.

Plaintiffs allege that the Device suffered from a manufacturing defect in that it was dangerous because not manufactured according to specifications. (FAC, ¶ 44.) In the alternative, they allege that the Device was defective because it differed from “typical units of the same product line.” (Id., ¶ 45.) Plaintiffs also allege that the manufacturing defect caused specific results, e.g., generating metal debris in the patient’s body or detachment, disconnection or loosening from the acetabulum. (Id., ¶ 44.) Citing mostly federal cases, Wright argues that the allegations are mere conclusions that do not withstand demurrer. The court disagrees.

The cases cited do not require specific pleading in products liability cases filed in California courts. Furthermore, Plaintiffs are unlikely to possess technical information about Wright’s manufacturing processes at this stage of the case. In Coleman v. Medtronic, Inc. (2014) 223 Cal.App.4th 413, 435-436, the Court of Appeal decided that allegations an implant device was defective because it did not comply with unidentified manufacturing specifications from various sources was enough to state a defective manufacturing cause of action. Following Coleman, the court overrules Wright’s demurrer to the first cause of action.

The Fifth Cause Action for Negligent Misrepresentation

The demurrer is SUSTAINED with leave to amend.

Plaintiffs have not alleged any affirmative misrepresentations with the requisite factual specificity needed to proceed against a corporate defendant. (See, e.g., Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 [“The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written”].) Plaintiffs argue that the specificity requirements governing misrepresentation causes of action should be relaxed in this case because Wright possesses full knowledge of the misrepresentations. The court is not persuaded. If Mark allowed the Device to be implanted in reliance on Wright’s misrepresentations, then he ought to know at least some of the specifics.

The court grants leave to amend.

In sustaining the demurrer to the fifth cause of action, the court notes Plaintiffs’ allegations of concealment and nondisclosure. Because Plaintiffs do not ask for leave to add a cause of action for fraudulent concealment, the court does not address the viability of such a legal theory.

Disposition

The demurrer to the first cause of action is overruled.

The demurrer to the fifth cause of action is sustained with leave to amend.

No later than 11/14/18, Plaintiffs may file and serve a second amended complaint (SAC) in an attempt to state a valid cause of action for negligent misrepresentation; response(s) due within 30 days thereafter, 35 days if the SAC is served by mail.

Although not required by any statute or rule of court, Wright is requested to attach a copy of the instant minute order to the SAC to facilitate the filing of the pleading.

If any defendant intends to demur to the SAC or move to strike, it shall determine if any other defendant who has appeared in this action also intends to demur or move to strike. If so, all such defendants shall coordinate a single hearing date for the demurrers and motions to strike. Additionally, a copy of the SAC shall be included with the moving papers.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is required.