Judge: James A. Mangione, Case: 37-2022-00023274-CU-PL-CTL, Date: 2024-05-31 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 31, 2024

05/31/2024  09:00:00 AM  C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

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Civil - Unlimited  Product Liability Motion Hearing (Civil) 37-2022-00023274-CU-PL-CTL BUTTAZZONI VS NUVASIVE INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants' Demurrer to the Fourth Cause of Action in Plaintiff's First Amended Complaint is overruled.

Defendants' Motion to Strike is denied.

'The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance [i.e. defraud], (4) actual and justifiable reliance, and (5) resulting damage.' (Chapman v. Skype Inc. (2013) 220 Cal. App. 4th 217, 230-31.) Here, the First Amended Complaint ('FAC') contains factual allegations related to purported misrepresentations made by Defendants, as well as statements made by Dr. Dror Paley, the co-inventor of the STRYDE Nails ('Nail'), which Defendants endorsed to the FDA and to the public generally. (FAC ¶¶ 15, 19-21.) There is no dispute that a fraud claim, which relies on an allegation that 'but for' false representations made to the FDA, 'the FDA would not have approved the devices, and plaintiffs would not have been injured' is preempted by federal law. (Buckman Co. v. Plaintiffs' Legal Committee (2001) 531 U.S. 341, 343–344.) As such, to the extent that Plaintiff is relying on misrepresentations made to the FDA in order to receive approval for the Nail, this claim is preempted.

However, the FAC also alleges independent factual misrepresentation made by Defendants and Dr.

Paley as to the weight bearing capacity of the Nails despite knowing of existing issues with the structure and strength of the Nails. (FAC ¶¶ 15, 49-53, 55.) These statements were made in the second half of 2018 and continued through October 2020. (Id. ¶ 6, 15-16.) Plaintiff claimed that the 'false marketing 'intentionally misled consumers, including the Plaintiff, into choosing their Newly Marketed Intramedullary Nail.' (Id. ¶ 55.) Additionally, Plaintiff alleges that Defendants 'concealed critical information about the unknown risks associated with the seal breaks and the rare metal coming into contact with human fluids.' (Id. ¶ 53.) These allegations are sufficient to satisfy the particularity pleading requirements for fraud claims. Therefore, the demurrer is overruled.

Finally, because the demurrer has been overruled, the claim for punitive damages based on fraud is sufficiently alleged.

The minute order is the order of the Court.

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