Judge: William A. Crowfoot, Case: 19STCV21332, Date: 2022-10-21 Tentative Ruling

Case Number: 19STCV21332    Hearing Date: October 21, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On June 19, 2019, plaintiff Richard Salerno (“Plaintiff”) filed this product liability action alleging injuries from a defective total knee replacement system.  On April 13, 2022, after obtaining leave of court, Plaintiff filed the operative Second Amended Complaint (“SAC”) which names Zimmer Biomet Holdings, Inc., Summer US, Inc., Biomet, Inc., Biomet Orthopedics, LLC, Biomet Manufacturing LLC, Biomet U.S. Reconstruction, LLC, Synergy Orthopaedic Systems, Inc., and Zimmer Biomet Feagan, Inc.  Plaintiff asserts the following causes of action: (1) strict products liability, (2) negligence – failure to warn, (3) products liability – failure to warn, (4) products liability – design defect, (5) products liability negligence, (6) breach of express warranty, (7) breach of implied warranty, (8) intentional misrepresentation, (9) negligent misrepresentation, and (10) violation of California Business & Professions Code section 17200 et seq. (“UCL”). 

At a hearing on August 12, 2022, Plaintiff represented that they have been in contact with Zimmer US, Inc. (“Defendant”) and that all other named Defendants may be dismissed. 

On September 8, 2022, Defendant filed this demurrer and motion to strike.  Defendant demurs to each cause of action asserted in the Complaint, with the exception of the sixth cause of action for breach of express warranty.  Defendant also moves to strike Paragraphs 86, 87, and 88 of the SAC, as well as Plaintiff’s prayer for punitive and exemplary damages.

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.  (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.) 

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

Meet and Confer

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).)  

Demurrer

A.   First, Second, Third, Fourth, and Fifth Causes of Action

Defendant argues that the First, Second, Third, Fourth, and Fifth Causes of Action for products liability and negligence are barred by the 2-year statute of limitations set forth in Code of Civil Procedure section 335.1.  Plaintiff filed suit on June 19, 2019, alleging that on December 29, 2010, he underwent surgery to his left knee with the insertion of the NexGen Total Knee Replacement System.  (SAC, ¶ 25.)  Plaintiff alleges that thereafter, on or about February 16, 2016, he experienced a failure of the locking screw from the polyethylene liner of the knee replacement system, and another physician, Erik Zeegen, M.D. (“Dr. Zeegen”) exchanged a replacement screw and liner.  (SAC, ¶ 26.)  Subsequently, on December 17, 2017, the locking screw came out of the polyethylene liner again and appeared to be “stripped”.  (SAC, ¶ 27.)  Plaintiff underwent surgery which showed the liner appeared to be stable within the tibial tray and left in place, while the screw was located in the retro patellar fat pad and removed.  (Ibid.)  Within several months, Plaintiff began suffering pain in his left knee, hips, and other physical manifestations of medical complications, as well as mental fatigue, pain in his muscles of soft tissue, with fluid on the knee, which required aspiration on several occasions.  (Compl., ¶ 28.)  Dr. Zeegen recommended total knee replacement, which took place on or about May 23, 2019. 

In anticipation of Plaintiff’s assertion of the “discovery rule”, which postpones the accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action, Defendant argues that Plaintiff has not met his burden to show a delayed discovery.  “Generally speaking, a cause of action accrues at “the time when the cause of action is complete with all of its elements.”  (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.)  A plaintiff has reason to discover a cause of action when he or she “has reason at least to suspect a factual basis for its elements.”  (Id. at p. 807 [citing Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398.)  “Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.”  (Ibid.)  In Fox, the California Supreme Court examined whether the plaintiffs asserting causes of action for products liability for a medical device used during gastric bypass surgery “ha[d] reason to at least suspect that a type of wrongdoing has injured them.”  (Ibid.)  The Fox court held that the discovery rule did not apply where a plaintiff alleged that she “ ‘did not discover, nor suspect, nor was there any means through which her reasonable diligence would have revealed, or through which she would have suspected the [medical device] as a cause of her injury until the deposition of [the surgeon] was taken’ ” on a particular date, without alleging specific facts supporting her allegations.  The Fox court noted, however, that this defect could have been cured by the plaintiff’s proposed amendment to add allegations that she had no reason to suspect the stapler until after the doctor was deposed and that no reasonable person would have suspected that the medical device had malfunctioned.”  (Id. at pp. 811.) 

          Defendant argues that Plaintiff fails to allege how he discovered his causes of action or identify when he discovered the connection between his alleged injuries and his claims against Defendant.  Defendant also argues that Plaintiff cannot avail himself of the discovery rule because Plaintiff does not provide any details at all as to whether he was reasonably diligent.  The Court disagrees.  Plaintiff alleges that he had no reason to know, believe, or suspect that the problems he experienced with his knee leading up to his surgery in 2016 were the result of any wrongful act or wrongdoing because of the acknowledged potential risk that hardware might “wear out, break, or otherwise fail through normal use.”  (SAC, ¶ 29.)  He also alleges that no other person advised him at any point prior to the surgery in December 2017 that his surgery in 2016 was necessitated by any defect or negligence related to the hardware implanted in him.  (Ibid.)  Plaintiff argues that the statute of limitations began running around December 17, 2017, when the locking screw failed once again and appeared to be stripped.  (Opp., 3:25-4:2.)  These allegations are sufficient at this stage in the pleadings to show that Plaintiff did not suspect a problem with the knee replacement system or put him on notice of an obligation to investigate the cause of the failure of the locking screw. 

          Defendant’s demurrers to the First, Second, Third, Fourth, and Fifth Causes of Action are OVERRULED.

B.   Seventh Cause of Action

Defendant argues that Plaintiff’s Seventh Cause of Action for Breach of Implied Warranty fails because Plaintiff lacks the requisite contractual privity and Plaintiff’s reliance on his physician cannot form the basis of a warranty claim.  Defendant cites to Evraets v. Intermedics Intraocular, Inc. (1994) 29 Cal.App.4th 779, 778 and argues that Plaintiff, as a patient, cannot sue on a manufacturer, supplier, or distributor of a medical device on an implied warranty theory if he relied upon his physician’s skill or judgment to select or furnish the device.  (Demurrer, 6:2-6.)  “The implied warranty of fitness requires that a buyer of goods rely upon the seller's skill or judgment to select or furnish a suitable product.”  (Evraets, supra, 29 Cal.App.4th at p. 788.)  The Evraets court concluded that the plaintiff patient could not sue on an implied warranty of fitness theory because he did not rely on the judgment of the manufacturer and distributor of the medical device.   

Here, Plaintiff argues that he alleges privity in the SAC because he alleges that he “purchased the NexGen Knee Replacement System from Defendants, through his orthopedic surgeon.”  (SAC, ¶ 77; Opp., 5:5-7.)  This allegation is insufficient to establish the privity needed for an implied warranty theory because he fails to allege that he relied on Defendant’s judgment.  In fact, Plaintiff actually alleges that his orthopedic surgeon, Michael J. Harris, M.D. (“Dr. Harris”), recommended knee replacement surgeon to him, and his surgeon believed and relied on Defendant’s representations regarding the NexGen Knee Replacement System, and that the representations were not made directly to Plaintiff.  (SAC., ¶¶ 24-25.)  Therefore, it is unclear how Plaintiff can successfully amend the SAC to state a claim for breach of implied warranty. 

Accordingly, Defendant’s demurrer to the Seventh Cause of Action is SUSTAINED. 

C.   Eighth, Ninth, and Tenth Causes of Action

Next, Defendant argues that Plaintiff’s Eighth, Ninth, and Tenth Causes of Action for intentional representation, negligent representation, and violation of the UCL fail to state sufficient facts. 

Plaintiff does not oppose Defendant’s demurrer to these three causes of action.  However, Plaintiff does request that the demurrer be sustained with leave to amend in the event that discovery later provides the necessary factual support needed to state these causes of action.  Defendant opposes Plaintiff’s request to dismiss without prejudice and argues that Plaintiff has had 3 opportunities to plead a proper claim.  Given that the litigation is still in its early stages and discovery has not yet commenced, the Court is in favor of allowing Plaintiff to file a motion for leave to file an amended complaint if discovery later yields information that would state a sufficient claim for intentional representation, negligent misrepresentation, and a violation of the UCL. 

Motion to Strike

Defendant’s motion to strike is denied as moot because the Court sustained Defendant’s demurrer to the Eighth Cause of Action and the motion to strike only addresses paragraphs of the complaint that are part of the Eighth Cause of Action.  Also, Plaintiff only requests punitive damages in connection with the Eighth Cause of Action. 

IV.     CONCLUSION

Defendant’s demurrer to the First, Second, Third, Fourth, and Fifth Causes of Action is OVERRULED.

Defendant’s demurrer to the Seventh Cause of Action is SUSTAINED without leave to amend.

Defendant’s demurrer to the Eighth, Ninth, and Tenth Causes of Action is SUSTAINED.  Leave to amend is not granted at this time but Plaintiff may make a motion for leave to file an amended complaint if, during the course of discovery, he determines that there is evidence to support those claims. 

Defendant’s motion to strike is DENIED as moot.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.