Judge: Lee W. Tsao, Case: 22NWCV01458, Date: 2023-09-26 Tentative Ruling

Case Number: 22NWCV01458    Hearing Date: September 26, 2023    Dept: C

LUNNEY v. ZIMMER US, INC., et al.

CASE NO.:  22NWCV01458

HEARING:   9/26/23

#6

TENTATIVE RULING

Defendants Zimmer US, Inc., Zimmer, Inc., Zimmer Biomet, and Biomet, Inc.’s motion to strike is GRANTED with 10 days leave to amend.

Moving Parties to give NOTICE.

Defendants Zimmer US, Inc., Zimmer, Inc., Zimmer Biomet, and Biomet, Inc. move to strike punitive damages pursuant to CCP § 436.

The operative First Amended Complaint (“FAC”) alleges that on July 28, 2020, Plaintiff Lunney had surgery to implant artificial materials to correct one leg being shorter than the other.  (FAC, ¶¶ 16-23.)  Revision surgery was performed on January 28, 2022.  (Id., ¶ 31.)  “However, KUMAR was unable to install the spacer due to a fault in the previously installed Implant device… the Implants, specifically the Arcos device, could not be disassembled in order to add the custom spacer device because essentially the connection between the stem and the proximal body was stripped, resulting in them being unable to be separated.”  (Id., ¶ 32.)  The revision surgery failed.  (Id., ¶ 33.)    .  Based thereon, the FAC asserts causes of action for:

1.    Negligence (Count I) (v. Zimmer)

2.    Breach of Express Warranty (v. Zimmer)

3.    Breach of Implied Warranty (v. Zimmer)

4.    Strict Products Liability (v. Zimmer)

5.    Negligence (Count II) (v. Kumar)

6.    Negligence (Count III) (v. Kaiser)

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper, strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  (CCP § 436.)  The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court's own files or records).  (CCP § 437.)

In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.  (1) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  (2) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.  (CC § 3294(a).)  

The court finds Plaintiff’s punitive damages allegations do not rise to the level of despicable or malicious conduct.  Plaintiff alleges that Zimmer “knew or should have known that the Implants could not be removed, adjusted and/or modified after implantation,” and failed to warn Plaintiff’s physician.  (FAC, ¶¶ 88, 90.)  Plaintiff further alleges that “despite its knowledge that the Implants were prone to failure, ZIMMER continued to market and sell the Implants in order to increase its profits without regard for the risks to Plaintiff.”  (Id., ¶ 96.)  As such, Plaintiff alleges that Zimmer engaged in despicable conduct with a conscious disregard for the rights or safety of others.  (Id, ¶ 97.)

At this early pleading stage, the court finds that the allegations of Defendants’ knowledge that the implants “were prone to failure” is sufficient to allege malicious conduct.  However, the FAC fails to allege corporate ratification.

Accordingly, the motion is GRANTED with 10 days leave to amend.