PAPAK, United States Magistrate Judge:
Plaintiff Richard D. Alton filed this action against defendants Medtronic, Inc., and Medtronic Sofamor Danek USA, Inc. (collectively, "Medtronic") on March 11, 2013, alleging claims of fraudulent misrepresentation and fraud in the inducement, strict products liability for failure to warn, strict products liability for defective design, strict products liability for misrepresentation, products liability for negligence, and breach of express warranty. Each of Alton's claims arises out of complications he suffered following spine surgery in which a medical device designed, produced, and marketed by Medtronic was implanted in his cervical spine. This court has jurisdiction over Alton's claims pursuant to 28 U.S.C. § 1332, based on the complete diversity of the parties' citizenship and the amount in controversy.
Now before the court are Medtronic's motion (# 19) to dismiss Alton's claims, Medtronic's motion (# 23) for judicial notice, and Alton's motion (# 26) for judicial notice. I have considered the motions, oral argument on behalf of the parties, and all of the pleadings and papers on file. For the reasons set forth below, Medtronic's motion (# 23) and Alton's motion (# 26) for judicial notice are each granted as discussed below, and Medtronic's motion (# 19) to dismiss is granted in part and denied in part as discussed below.
Federal Rule of Evidence 201(d) provides that "[a] court shall take judicial notice [of an adjudicative fact] if requested by a party and supplied with the necessary information." An adjudicative fact is subject to judicial notice when the fact is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R.Evid. 201(b).
To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" specifically, it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To raise a right to relief above the speculative level, "[t]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004); see also Fed.R.Civ.P. 8(a). Instead, the plaintiff must plead affirmative factual content, as opposed to any merely conclusory recitation that the elements of a claim have been satisfied, that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory `factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret
"In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). In considering a motion to dismiss, this court accepts all of the allegations in the complaint as true and construes them in the light most favorable to the plaintiff. See Kahle v. Gonzales, 474 F.3d 665, 667 (9th Cir.2007). Moreover, the court "presume[s] that general allegations embrace those specific facts that are necessary to support the claim." Nat'l Org. for Women v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The court need not, however, accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981).
Alton's complaint in this matter is voluminous, as are the materials submitted to the court as fit matters for judicial notice. In consequence, I provide here only a brief summary of the material allegations and facts.
On July 2, 2002, Medtronic received pre-market approval ("PMA") from the federal Food and Drug Administration (the "FDA") for its Infuse device (a "Class III" medical device under the classification framework of the Medical Device Amendments of 1976). The Infuse device approved by the FDA consists of a recombinant bone morphogenetic protein referred to as rhBMP-2 used in connection with a collagen scaffold (sponge) and a tapered metallic spinal fusion cage (interbody cage). The Infuse device was specifically approved as of July 2, 2002, for use in surgery on the lumbar spine performed through the abdomen (an anterior approach; this procedure is referred to as anterior lumbar interbody fusion surgery, or "ALIF"). Certain alternate interbody cage designs were approved by the FDA on December 1, 2003. The FDA subsequently approved the Infuse device for use in repairing certain tibia fractures and certain oromaxillary surgeries, and approved the Infuse rhBMP-2 protein component for use in the absence of the sponge or any interbody cage in certain sinus augmentations and alveolar ridge augmentations.
At or around the time it obtained initial FDA approval for the Infuse device, Medtronic began expending large sums of money in efforts to promote so-called "off-label" uses of the device, namely, any application other than those specifically approved by the FDA. These off-label applications included the use of the rhBMP protein without the specific interbody cage approved by the FDA as part of the Infuse device in connection with lumbar spine surgeries with a transforaminal or posterior approach (referred to as posterior lumbar interbody fusion or "PLIF" surgery).
Even before it obtained FDA approval for any application of the Infuse device, Medtronic was aware of studies demonstrating that applications of the device other than those ultimately approved by the FDA were associated with significant adverse consequences, sometimes resulting in conditions of the spine that were worse than the condition necessitating surgical intervention in the first instance, in some cases life-threatening conditions. Specifically, off-label applications of the device
As a result of Medtronic's efforts to promote off-label applications of the device and applications of components of the device and of Medtronic's efforts to suppress reports of adverse consequences from such applications, by 2010 the Infuse device and its protein component were more frequently used off label than for approved applications, and became a huge source of profit for Medtronic.
On April 7, 2010, Alton underwent PLIF surgery in which the protein component of the Infuse device was implanted in his lumbar spine without the appropriate interbody cage. At the time he conducted the surgery, Alton's surgeon was unaware of known risks associated with such application of the protein component of the device, due to Medtronic's suppression of information regarding such risks. Alton subsequently developed uncontrolled exuberant bone growth in his lumbar spine, necessitating further surgery and resulting in significant pain symptoms.
By and through its motion (#23) for judicial notice, Medtronic requests that the court take notice of documents constituting: (i) the FDA PMA database listing for the Infuse device indicating a July 2, 2002, decision date approving the device for spinal fusion procedures in skeletally mature patients with degenerative disc disease at one level from L4-S1; (ii) the FDA's PMA letter for the Infuse device dated July 2, 2002, approving the device for spinal fusion procedures in skeletally mature patients with degenerative disc disease at one level from L4-S1; (iii) a supplemental FDA PMA database listing for the Infuse device indicating a March 27, 2013, supplemental decision date approving a modification to the process for using the device, specifically the addition of an alternate water supplier; (iv) a supplemental FDA PMA database listing for the Infuse device indicating a December 1, 2003, supplemental decision date approving a modification to the device, specifically the addition of alternate interbody cage designs; (v) the FDA's PMA letter for the rhBMP-2 protein dated April 30, 2004, approving the protein for the treatment of acute, open tibial shaft fractures stabilized with intramedullary nail fixation in skeletally mature patients; (vi) the FDA's PMA letter for the rhBMP-2 protein dated March 9, 2007, approving the protein for sinus augmentations and for localized alveolar ridge augmentations for defects associated with extraction sockets; (vii) an FDA "Important Medical Information" advisory regarding the Infuse device and the rhBMP-2 component thereof;
Neither party requests with particularity that the court take notice of any specific adjudicative fact set forth within any of the identified documents, but rather each party appears to request that the court take notice of the contents of all of the identified documents generally. It is clear that each identified document contains adjudicative facts capable of ready determination, but equally clear that at least some of the identified documents contain content that does not constitute such an adjudicative fact. Nevertheless, because each identified document sets forth at least some fit matters for judicial notice, the parties' motions are granted, and I take judicial notice of adjudicative facts contained within the identified documents. Other content of the identified documents has been and will be disregarded.
By and through its motion to dismiss, Medtronic chiefly argues that each of Alton's claims is preempted under the federal Food, Drug, and Cosmetic Act of 1938 (the "FDCA"), and in the alternative argues that Alton's design defect claim is barred under Restatement of Torts Section 402A, Comment k, that his breach of express warranty claim necessarily fails because Medtronic has disclaimed all express warranties, and that his fraud claim necessarily fails because it is not pled with adequate particularity. I address each set of arguments in turn below.
By and through the Food and Drug Act of 1906 (the "1906 Act"), Congress prohibited the manufacture or shipment through interstate commerce of any adulterated or misbranded food or drug. In 1938, through passage of the FDCA, Congress broadened the coverage of the 1906 Act to include within its scope adulterated or misbranded medical devices and cosmetics. As originally enacted, however, the FDCA did not provide any mechanism for governmental oversight of the process of introducing new medical devices.
In 1976, by and through the Medical Device Amendments of 1976 (the "MDA"), Congress enacted significant amendments to the FDCA. Under the FDCA as modified by the MDA, medical devices are classified into three categories based on the potential risk they pose. Devices posing the greatest risk are classified as "Class III" devices. See 21 U.S.C. § 360c(a)(1)(C).
Medtronic, Inc. v. Lohr, 518 U.S. 470, 477, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). Indeed, the Supreme Court has characterized the premarket approval ("PMA") process as constituting the Congressionally mandated "federal safety review" process. Riegel v. Medtronic, Inc., 552 U.S. 312, 323, 128 S.Ct. 999, 169 L.Ed.2d 892 (2008) ("Premarket approval ... is in no sense an exemption from federal safety review-it is federal safety review" (emphasis original)).
A manufacturer's obligations under the FDCA do not end with premarket approval. Even after premarket approval issues, manufacturers are required to report to the FDA "no later than 30 calendar days after the day" the manufacturer "receive[s] or otherwise become[s] aware of information, from any source, that reasonably suggests that a device" marketed by the manufacturer:
21 C.F.R. § 803.50(a); see also 21 U.S.C. § 360i(a) (further detailing the post-approval reporting requirements applicable to device manufacturers); Riegel, 552 U.S. at 319, 128 S.Ct. 999; Stengel v. Medtronic Inc., 704 F.3d 1224, 1226-1227 (9th Cir. 2013) (en banc). In addition, manufacturers are required to make periodic reports to the FDA regarding approved devices, such reports to include summaries of:
21 C.F.R. § 814.84(b)(2).
The FDCA does not prohibit nor purport to regulate the use by physicians of medical devices for applications that have not been approved by the FDA (so-called "off-label" applications). Indeed, the off-label application of medical devices is not discouraged by the FDA, and is generally accepted to be both necessary and valuable. See, e.g., Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 350, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001). However, the FDCA as amended by the MDA expressly prohibits manufacturers from the "introduction or delivery for introduction into interstate commerce of any ... device... that is ... misbranded." 21 U.S.C. § 331(a). A device is misbranded under the FDCA as amended if, inter alia, "its labeling is false or misleading in any particular," 21 U.S.C. § 352(a), or its labeling does not bear "adequate directions for use," 21 U.S.C. § 352(f)(1). Adequate directions for the use of a medical device "means directions under which the layman can use [the] device safely and for the purposes for which it is intended." 21 C.F.R. § 801.5. "Directions for use may be inadequate because, among other reasons, of omission, in whole or in part, or incorrect specification of ... [s]tatements of all conditions, purposes, or uses for which
Id.
Criminal penalties obtain where manufacturers are found to have violated the FDCA prohibition against misbranding, see 21 U.S.C. § 333(a), as do civil penalties in the form of fines payable to the United States, see 21 U.S.C. § 333(f). However, there is no private right of action under the FDCA for a manufacturer's violation of its provisions, including the prohibition against the sale or distribution of misbranded devices. See 21 U.S.C. § 337(a); see also, e.g., Buckman, 531 U.S. at 349, n. 4, 121 S.Ct. 1012.
The FDCA as modified by the MDA contains an express preemption provision as follows:
21 U.S.C. § 360k(a).
21 C.F.R. § 808.1(d).
A trilogy of United States Supreme Court cases provide guidance for analysis
Although all nine Lohr justices either expressly or implicitly rejected Medtronic's argument that, where the FDA imposes requirements on a medical device, all common-law causes of action arising out of an application of the device are necessarily preempted pursuant to Section 360k(a), see Lohr, 518 U.S. at 486-491, 505-508, 116 S.Ct. 2240 (Breyer, J., concurring in part and concurring in the judgment), 512-513 (O'Connor, J., concurring in part and dissenting in part, joined by Rehnquist, Ch. J., Scalia, J., and Thomas, J.), only a plurality of four justices adopted Part IV of Justice Stevens' opinion, in which that argument was specifically analyzed, see id. at 486-491, 116 S.Ct. 2240. Part IV expressed the plurality's opinion that "Medtronic's argument [wa]s not only unpersuasive [but also] implausible," in that any broad construction of FDCA/MDA preemption would have "the perverse effect" of largely immunizing medical device manufacturers from liability to private citizens harmed by their products, notwithstanding the express judgment of Congress that the medical device industry was in need of "more stringent regulation in order `to provide for the safety and effectiveness of medical devices intended for human use.'" Id. at 487, 116 S.Ct. 2240, quoting 90 Stat. 539. The plurality further opined in Part IV that Section 360k "simply was not intended to pre-empt most, let alone all, general common-law duties enforced by damages actions," and concluded that notwithstanding enactment of the MDA "at least some common-law claims may be maintained" against medical device manufacturers. Id. at 491, 116 S.Ct. 2240. Justice Stevens and three other justices supported the plurality's opinion in Part IV in part on a reading of Congressional intent pursuant to which the statutory term "requirements" would be given a narrower construction in connection with state-law causes of action than the court had previously ascribed to the same term in the context of the preemption provision of the Public Health Cigarette Smoking Act of 1969. See id. at 487-491, 116 S.Ct. 2240.
As noted above, all nine justices agreed that some or all of the Lohr plaintiffs' common-law claims against Medtronic survived FDCA/MDA preemption, and thus agreed with the ultimate conclusion reached by the plurality in Part IV. Nevertheless, Justice Breyer expressly stated that he did not join in Part IV of the court's opinion "which emphasize[d] the differences between the MDA [preemption provision] and the preemption [provision of the Public Health Cigarette Smoking Act of 1969], because those differences [we]re not ... relevant," id. at 508, 116 S.Ct. 2240 (Breyer, J., concurring in part and concurring in the judgment), and three justices joined in Justice O'Connor's partial dissent which likewise disagreed with the plurality that the statutory term "requirements"
All nine Lohr justices agreed that the FDA does not impose "requirements" specifically regarding the design of a medical device when the device is approved through the Section 510(k) process, with the consequence that the Section 360k(a) preemption provision is entirely inapplicable to state-law design defect claims arising in connection with a device approved under Section 510(k). See id. at 492-494, 508, 116 S.Ct. 2240 (Breyer, J., concurring in part and concurring in the judgment), 513 (O'Connor, J., concurring in part and dissenting in part). In consequence, the court affirmed the Eleventh Circuit's decision that the design defect claims were not preempted. See id.
More critically for present purposes, all nine justices further held that, on the arguendo assumptions that the FDA had placed cognizable requirements on the pacemaker through Section 510(k) approval and that recognition of state common-law claims arising out of applications of the device would constitute imposition of state requirements for preemption purposes, there could be no FDCA/MDA preemption of state claims arising out of the violation of state-law duties that "parallel" duties arising under the FDCA:
Id. at 495, 116 S.Ct. 2240 (emphasis supplied); see also id. at 508, 116 S.Ct. 2240 (Breyer, J., concurring in part and concurring in the judgment; concurring in the quoted holding), 513 (O'Connor, J., concurring in part and dissenting in part; agreeing with the quoted holding). On this basis, the court held that the plaintiffs' negligent manufacture and negligent failure to warn claims were clearly not preempted to the extent premised on state-law duties "equal to, or substantially identical to, requirements imposed" under the FDCA. Id. at 496-497, 116 S.Ct. 2240. All nine justices concurred in this holding. See id. at 508, 116 S.Ct. 2240 (Breyer, J., concurring in part and concurring in the judgment; concurring in the cited holding), 513-514, 116 S.Ct. 2240 (O'Connor, J., concurring in part and dissenting in part; concurring in the cited holding).
Turning to the question whether the negligent manufacture or negligent failure to warn claims constituted parallel claims that would escape preemption to the extent those claims were premised on the violation of state-law duties of general applicability that were not substantially identical to FDCA requirements, a five justice
Id. at 500, 116 S.Ct. 2240 (emphasis supplied); see also id. at 508, 116 S.Ct. 2240 (Breyer, J., concurring in part and concurring in the judgment; concurring in the quoted language). Because the plaintiffs' claims (to the extent not premised on state-law duties substantially equivalent to FDA-promulgated duties) were premised on state-law duties of general applicability rather than on requirements imposed under state law with respect to specific medical devices, the Lohr majority held that the claims (so construed) were not preempted:
Id. at 501-502, 116 S.Ct. 2240 (emphasis supplied); see also id. at 508, 116 S.Ct. 2240 (Breyer, J., concurring in part and concurring in the judgment; concurring in the quoted language).
The second Supreme Court case in the FDCA/MDA preemption trilogy was Buckman Co. v. Plaintiffs' Legal Comm., supra, decided in 2001. The medical device at issue in Buckman was a bone screw (a Class III device) that, like the pacemaker at issue in Lohr, had avoided the premarket approval requirement by being designated as "substantially equivalent" to a pre-existing device already on the market through the less rigorous Section 510(k) process. Although the Buckman court expressly did not repudiate the analysis set forth in Lohr, the court found the plaintiff's cause of action for fraud on the FDA (premised on the theory that the device manufacturer had made fraudulent statements to the FDA resulting in improper approval of the device) was impliedly preempted in that the cause of action existed solely by virtue of requirements imposed pursuant to the FDCA, the provisions of which are expressly enforceable only by the FDA, and give rise to no private right of action:
Buckman, 531 U.S. at 348, 121 S.Ct. 1012 (footnote omitted). The Buckman court clarified that its holding was consistent with the reasoning of the Lohr court:
Id. at 352-353, 121 S.Ct. 1012.
The third Supreme Court case in the trilogy was Riegel v. Medtronic, Inc., supra, decided in 2008. The medical device at issue in Riegel was a Class III balloon catheter that had received premarket approval from the FDA following the rigorous PMA process. As a preliminary matter, the Riegel court expressly found that the PMA process imposed "requirements" on an approved device for purposes of Section 360k. Riegel, 552 U.S. at 322-323, 128 S.Ct. 999. In addition, the Riegel majority clarified that it "adhered" to the view of the five justices who did not join in Part IV of the Lohr plurality's opinion, that state common-law claims are predicated on the violation of "requirements," and are thus preempted where those underlying requirements are "in addition to or different from" FDA-promulgated requirements. Id. at 323-324, 128 S.Ct. 999. However, the Riegel court expressly affirmed the reasoning of the Lohr court cited above that:
Id. at 330, 128 S.Ct. 999 (emphasis supplied), citing Lohr, 518 U.S. at 495, 116 S.Ct. 2240. Because the plaintiffs' claims were pled as asserting Medtronic's liability for violation of state-law duties "notwithstanding compliance with the relevant federal requirements," the Riegel court found the plaintiffs' claims clearly preempted under the plain language of Section 360k(a). Id. The court expressly declined to consider the argument, raised for the first time on appeal, that the plaintiffs' claims could be construed as "parallel" claims. See id.
In 2010, the Seventh Circuit persuasively applied the preemption analysis set forth in the Supreme court's FDCA/MDA preemption trilogy to a Class III hip implant approved by the FDA under the rigorous PMA process. The court prefaced its reasoning as follows:
Bausch v. Stryker Corp., 630 F.3d 546, 549-550 (7th Cir.2010) (italicized emphasis original; bolded emphasis supplied). In the course of analyzing whether state law claims premised on violation of the FDCA could be expressly preempted under Section 360k, the Bausch court set out and applied an analytic framework according to which state-law claims are not preempted if based on conduct proscribed by the FDCA but also independently actionable under state law of general applicability, as follows:
Bausch, 630 F.3d at 553. The Bausch court further found that, because the plaintiff's claims were independently actionable under state law, her claims were not impliedly preempted under the reasoning of the Buckman court. See id. at 558.
Shortly thereafter, the Fifth Circuit applied the Supreme Court's FDCA/MDA jurisprudence to reach a comparable result in connection with a failure to warn claim brought under Mississippi law and predicated in parallel part on the defendant's violation of its duty under the FDCA to report adverse outcomes. See Hughes v. Boston Scientific Corp., 631 F.3d 762, 776 (5th Cir.2011). The Hughes court specifically held that the "failure to warn claim is neither expressly nor impliedly preempted by the MDA to the extent that this claim is premised on [the defendant manufacturer]'s violation of FDA regulations with respect to reporting [adverse outcomes] caused by the device." Id. (internal modifications omitted).
The Ninth Circuit's recent en banc decision in Stengel v. Medtronic, Inc., supra, decided in 2013, cited Bausch and Hughes with approval and largely adopted (and further developed) the analytic framework proposed in Bausch. See Stengel, 704 F.3d at 1233 ("In holding that the Stengels' failure-to-warn claim is not preempted,
Id. at 1227.
The Stengel plaintiffs sought to amend their complaint to allege that Medtronic had violated its duty to the FDA to report adverse consequences of reliance on its FDA-approved device, and that its failure to comply with that duty constituted an independently actionable duty to use reasonable care under Arizona negligence law. See id. at 1232. The court found this proposed claim not preempted under either Section 360k(a) or Buckman:
Id. at 1233 (citations, internal quotation marks omitted; emphasis supplied). Moreover, in interpreting the Supreme Court's "parallel claim" jurisprudence, the Stengel court emphasized the continuing importance of the Lohr court's holding that FDCA/MDA preemption occurs only where a state-law duty is promulgated "with respect to" a medical device:
Id. at 1229 (emphasis supplied; internal modifications omitted), quoting Lohr, 518 U.S. at 501-502, 502, 116 S.Ct. 2240.
Still more recently than Stengel, the Ninth Circuit again addressed the question of FDCA/MDA preemption in Perez v. Nidek Co., 711 F.3d 1109, 1111 (9th Cir.2013), a panel decision. The Perez plaintiffs did not claim to have been injured in any manner, but claimed that the defendants' off-label use of a Class III laser to surgically correct hyperopia was in violation of the California Protection of Human Subjects in Medical Experimentation Act (the "Human Subjects Act") and the California Consumers Legal Remedies Act (the "Consumers Act"). In addition, the plaintiffs brought a claim of "fraud by omission" on the theory that the defendants had failed to advise the plaintiffs that the hyperopic surgeries were an off-label application of the laser. The appeals court found that the plaintiffs had no claim under the Human Subjects Act because the surgeries were not cognizable as medical experiments, and that the plaintiffs lacked standing under the circumstances to sue under the Consumers Act.
Id. at 1119-1120.
Although Lohr, Buckman, Riegel, Stengel, and Perez constitute the universe of FDCA/MDA-preemption case law precedent binding on this court, a number of other courts have also weighed in on the legal issues involved in applying the governing jurisprudence. The decisions vary widely in their constructions and applications. Exemplifying the approach of construing the preemptive effect of FDA premarket approval broadly is Caplinger v. Medtronic, Inc., 921 F.Supp.2d 1206 (W.D.Ok.2013), a recent decision of the district court for the western District of Oklahoma, in which the court found — with one exception — claims similar to those asserted by Alton in this action and likewise arising out of complications following use of the Infuse device either preempted under Section 360k(a) and Riegel, impliedly preempted under Buckman, or both.
As to the plaintiff's fraudulent misrepresentation and fraud in the inducement
To the extent the claim could be construed as premised on alleged misrepresentations and/or omissions made by Medtronic to the public and to the plaintiff's physician regarding the safety of off-label applications of the Infuse device, however, the court opined that it "could not be determined" whether the claim was preempted, due to the lack of specificity in the plaintiff's complaint. Id. at 1220. The court indicated that the claim would not be preempted to the extent so premised, so long as a finding of liability on the claim would not require the imposition of labeling requirements beyond those required by the FDA. See id. On that basis, the court denied Medtronic's motion to dismiss the fraud claim on preemption grounds, see id. at 1219-20, although it nevertheless dismissed the claim on the ground that it was not pled with sufficient particularity to satisfy the heightened pleading requirements of Federal Civil Procedure Rule 9(b), see id. at 1220.
The fraudulent misrepresentation and fraud in the inducement claim was the only claim the Caplinger court did not find either expressly or impliedly preempted in its entirety. As to the plaintiff's so-described constructive fraud claim, the court construed the claim as necessarily premised on the allegation that "[s]pecific defects ... in the Infuse® product ... rendered it defective and unreasonably dangerous," and on that construction found the claim expressly preempted under Section 360k(a) as seeking to impose "design, manufacturing, labeling, warning, and marketing requirements different from, or in addition to, federal requirements for the Infuse Device." Id. at 1221. Apparently in the alternative, the court additionally found that to the extent the constructive fraud claim was premised on alleged misrepresentations made by a Medtronic representative to the plaintiff's surgeons regarding the safety of the Infuse device during the course of the plaintiff's surgery, the claim was not pled with sufficient particularity and subject to dismissal on that basis as well. See id. at 1220-21.
As to the failure to warn claim, the court analyzed the plaintiff's complaint and determined that the claim was premised on the inadequacy of the FDA-mandated warning labels accompanying the Infuse device. See id. at 1221. Without considering or analyzing whether the plaintiff's
As to the defective design claim, the court construed the claim as necessarily premised on the allegation that the device was "unreasonably dangerous, even if defendants complied with all FDA regulations addressed to design." Id. at 1222. On that construction, the court found the claim clearly preempted under Section 360k(a) as seeking to "establish design requirements different from, or in addition to, federal requirements for the Infuse Device." Id.
As to the breach of express and implied warranties claims, the court asserted, without analysis, that whether the warranty in question was express or implied, to succeed on a claim of breach the "plaintiff must persuade a jury that the Infuse Device was not safe and effective, a finding that would be contrary to the FDA's approval." Although I note that the FDA had not (and has not) approved the Infuse device for all applications and has not characterized the Infuse device as "safe and effective" for off-label applications, and further note that the Caplinger plaintiff's theory of express warranty was based on assurances made by Medtronic not to the FDA or pursuant to FDA mandate but rather in the context of voluntary communications to the public, on the basis of the unsupported assertion that any warranty claim would require contravention of an FDA finding the court found the claims expressly preempted. See id. at 1222-23.
As to the negligence claim, the court analyzed the plaintiff's complaint and determined that the claim was based on three independent factual premises: (i) Medtronic's failure to warn the plaintiff and her physicians of the risks posed by off-label applications of the Infuse device, (ii) Medtronic's affirmative promotion and marketing of the Infuse device for unapproved applications, and (iii) Medtronic's failure to comply with unspecified federal law applicable to the sale and marketing of the Infuse device. See id. at 1222-24. For the same reasons that the court found the plaintiff's failure to warn claim expressly preempted, the court found the negligence claim expressly preempted to the extent premised on a failure to warn. See id. at 1223. To the extent that the negligence claim could be premised on Medtronic's efforts to market the Infuse device for an off-label application, the court found the claim not expressly preempted because those efforts could constitute misbranding in contravention of the FDCA. See id. However, the court asserted without analysis that such efforts could only be improper by virtue of the FDCA prohibition against misbranding — that is, that such efforts could not be in violation of Oklahoma negligence law absent the FDCA prohibition against misbranding — and on that ground found the claim (to the extent so premised) impliedly preempted under Buckman. See id. To the extent the claim was premised on Medtronic's violation of unspecified "other" federal law, the court found that the plaintiff had not alleged sufficient facts for the claim to survive a motion to dismiss. See id.
Finally, as to the negligent misrepresentation claim, the court construed the claim as necessarily dependent on the proposition that "specific defects in the infuse Device rendered it defective," and on that basis concluded that to permit the jury to
Illustrative of cases narrowly construing the preemptive effect of FDA premarket approval is Cornett v. Johnson & Johnson, 414 N.J.Super. 365, 998 A.2d 543 (N.J.App.Div.2010), a decision of the court of appeals of the State of New Jersey.
By contrast, the court found the plaintiffs' manufacturing defect, failure to warn, and breach of express warranty claims (as well as claims of wrongful death, loss of consortium, and survivorship that were derivative of those claims) to be neither expressly nor impliedly preempted under the FDCA. As to the manufacturing defect claim, the plaintiffs alleged that the device manufacturer had departed and deviated from the design approved by the FDA, and limited their allegations of defect to safety risks arising from those deviations. The Cornett court found that a New Jersey claim for manufacturing defect based on those allegations was therefore outside the scope of the FDCA/MDA preemption provision as a parallel claim, in that "[t]he [only] additional requirement that this
In connection with the failure to warn claim, the court noted that New Jersey's products liability law:
Id. at 563 (citations omitted). The court further noted that "[a] warning that has been approved or prescribed by the FDA under the FDCA carries a rebuttable presumption of adequacy." Id. (citation, internal quotation marks omitted). The court therefore reasoned that any state-law claim premised solely on the theory that the FDA-approved warning was inadequate would necessarily create a state-law requirement applicable to the manufacturer defendant in addition to those requirements imposed by the FDA, and on that basis would necessarily be preempted under Riegel. See id. at 563-564. However, the court further reasoned that:
Id. at 564-565 (citations and internal quotation marks omitted; emphasis supplied).
Id. at 565-566 (footnotes, internal modifications omitted).
In connection with the breach of express warranty claim, the court found that to the extent, if any, that the claim was premised on any warranty created by FDA-approved labeling, the claim was clearly preempted. See id. at 566. "However," the court found, "a claim for breach of express warranty based on voluntary statements, meaning any statement that the FDA did not approve or mandate, is not preempted." Id. (citations omitted).
The Cornett defendants appealed the appeals court's decisions as to the failure to warn and breach of express warranty claims to the New Jersey Supreme Court. That court affirmed the reasoning and decisions of the Cornett appeals court below as to those claims. Cornett v. Johnson & Johnson, 211 N.J. 362, 386-393, 48 A.3d 1041 (2012).
A small number of courts construes the preemptive effect of FDA premarket approval still more narrowly than the Cornett court where, as here, the device manufacturer is alleged to have affirmatively promoted an off-label application of the device with consequential damage to the defendant. Courts reasoning that claims against such a manufacturer are not subject to Section 360k(a) preemption include Ramirez v. Medtronic, Inc., 961 F.Supp.2d 977, Case No. CV13-512-PHXGMS, 2013 WL 4446913 (D.Ariz. August 21, 2013), a case arising out of an off-label application of the Infuse device.
Ramirez, 961 F.Supp.2d at 993, 2013 WL 4446913 at *11 (emphasis supplied). On that basis, the Ramirez court held that a plaintiff alleging state-law claims against a device manufacturer that had allegedly affirmatively promoted the complained-of off-label application is not required to establish that the state-law claims are "parallel" claims under Lohr, in that the FDA has not, by definition, imposed device-specific requirements in connection with the promoted off-label use, rendering Section 360k(a) inapposite. See id. at 994-96, at *13-14. The Ramirez court independently analyzed state-law claims of fraud, failure to warn, design defect, misrepresentation, negligence, and breach of express warranty and found each, to the extent premised on Medtronic's promotion of off-label application of the Infuse device. to be outside the scope of Section 360k(a). See id. at 996-1002, at *14-20.
The reasoning of the Caplinger court is in some respects difficult to square with the Ninth Circuit's en banc decision in Stengel that a failure to warn claim pled under Arizona negligence law would be neither expressly nor impliedly preempted, or with that court's adoption of the Seventh Court's reasoning in Bausch suggesting that Section 360k(a) preemption is largely unavailable to device manufacturers when they fail to comply with their obligations under the FDCA. To be sure, neither Stengel nor Bausch was binding on the Caplinger court, as Stengel is on this court. In addition, however, the Caplinger court's reasoning is in numerous instances unpersuasive — as for example where it begs the question by assuming the absence of a cognizable state-law claim in the aid of establishing that no parallel state-law claim had been asserted — and appears in several instances "to stretch the Supreme Court's decisions in this field beyond the boundaries that were made clear in those decisions" in precisely the manner the Bausch court found objectionable. Bausch, 630 F.3d at 549-550; see also, e.g., Hofts, 597 F.Supp.2d at 832 (observing that "some medical device ... have tried recently to stretch Riegel beyond recognition by transforming its protection for FDA-approved devices that comply with federal law into a grant of civil immunity for FDA-approved devices that violate federal law" and expressly rejecting any such interpretation) (emphasis original).
Finally, the reasoning of Ramirez, although largely persuasive, appears to me both to depend in part on a flawed premise and to reach a conclusion impliedly rejected by the Ninth Circuit in Perez. The flawed premise is in connection with the court's finding that Medtronic violated federal law specifically by promoting off-label applications of the Infuse device. As noted above, Section 331(a) — the provision the Ramirez court cited in support of the proposition that "[a] manufacturer is ... prohibited from promoting a use of the product that is not the specified use" — does not expressly prohibit such promotion, but rather prohibits manufacturers only from the "introduction or delivery for introduction into interstate commerce of any ... device ... that is ... misbranded," 21 U.S.C. § 1331(a), where misbranding is defined in part as labeling a device without including "adequate directions for use," 21 U.S.C. § 352(f)(1), directions for use "may be inadequate because ... of omission, in whole or in part, or incorrect specification of ... [s]tatements of all conditions, purposes, or uses for which such device is intended," 21 C.F.R. § 801.5(a), and whether a particular use is intended may be inferred from, inter alia, the manufacturer's statements in promotion of the device and its applications, see 21 C.F.R. § 801.4. I thus take issue with the reasoning of Ramirez to the extent the court presumed that the state-law claims before it were premised on off-label promotion in violation of the FDCA: the promotion itself did not violate any provision of the FDCA, but rather constituted evidence material to the question whether the Infuse device was misbranded.
Moreover, while the Ramirez court's conclusion that Section 360k(a) is inapplicable to state-law claims arising out of off-label applications of a PMA-approved medical device is not clearly incorrect either logically or in light of the Supreme Court's FDCA/MDA preemption jurisprudence, it cannot be reconciled with the Ninth Circuit's holding in Perez that claims arising out of a manufacturer-promoted off-label application of a PMA-approved medical device were preempted under Section 360k(a). See Perez, 711 F.3d at 1112-113, 1117-1119. Under Perez, PMA approval constitutes — impliedly but necessarily — imposition of device-specific requirements on a medical device without regard to the application or use in connection with which the FDA issued such approval. In consequence, I decline to follow the approach adopted by the Ramirez court.
Under the analytic framework discussed above, state-law claims arising out of the use of a Class III medical device
A state-law claim is expressly preempted under Section 360k(a) if recognition of the claim would or could have the effect of imposing on the medical device manufacturer any device-specific requirement or requirements different from or in addition to the requirements imposed by the FDA on the design, manufacture, labeling, or marketing either of the specific device in question or on medical devices generally. See Lohr, 518 U.S. at 495, 496-497, 500, 508, 116 S.Ct. 2240 (Breyer, J., concurring in part and concurring in the judgment), 513 (O'Connor, J., concurring in part and dissenting in part); Riegel, 552 U.S. at 323-324, 330, 128 S.Ct. 999. Lohr and its progeny contemplate two types of "parallel" state-law claims that escape express FDCA/MDA preemption: (i) state-law claims that are premised on conduct that both violates the FDCA and is independently actionable under state law, as for example the negligent manufacture and negligent failure to warn claims at issue in Lohr to the extent premised on state-law duties "substantially identical" to requirements imposed under the FDCA which all nine Lohr justices agreed were clearly not subject to FDCA/MDA preemption, see 518 U.S. at 495, 496-497, 508, 116 S.Ct. 2240 (Breyer, J., concurring in part and concurring in the judgment), 513-514 (O'Connor, J., concurring in part and dissenting in part), see also Stengel, 704 F.3d at 1233, and (ii) state-law claims that are premised on conduct that contravenes state-law duties of such generality as not to present any risk of interference with the federal medical-device regulatory scheme, as for example the negligent manufacture and negligent failure to warn claims which the Lohr majority found not preempted to the extent premised on the violation of state-law duties of general applicability that were not substantially identical to FDCA requirements, see Lohr, 518 U.S. at 501-502, 508, 116 S.Ct. 2240 (Breyer, J., concurring in part and concurring in the judgment), see also Stengel, 704 F.3d at 1229. The sine qua non of a parallel claim of either type is that recognition of the state-law cause of action would not impose on the medical device manufacturer any device-specific duty different from, or in addition to, the manufacturer's duties under the FDCA. See Lohr, 518 U.S. at 495, 500, 116 S.Ct. 2240; Stengel, 704 F.3d at 1233.
Alton alleges claims of fraudulent misrepresentation and fraud in the inducement, strict products liability for failure to warn, strict products liability for defective design, strict products liability for misrepresentation, products liability for negligence, and breach of express warranty. Like the Cornett and Caplinger courts, I examine the preemptive effect of FDA premarket approval on each claim independently, in turn.
Alton's fraud claim — like the category of fraud claims the Caplinger court identified as having the potential to escape preemption — is premised chiefly on the allegation that Medtronic intentionally misrepresented
Alton appears to argue that his fraud claim escapes express preemption as a parallel claim premised on the violation of substantially identical duties arising independently under the FDCA and under the Oregon common law. However, the FDCA neither prohibits off-label applications of an approved device nor prohibits device manufacturers from promoting off-label applications; the FDCA prohibits traffic in misbranded medical devices, but while Alton has alleged sufficient facts to support the conclusion that PLIF surgery involving the protein component of the Infuse device without the approved interbody cage component was an "intended use" of the device, see 21 C.F.R. § 801.4, on Alton's misbranding theory (as properly construed), Medtronic's alleged conduct in contravention of the FDCA was not its promotion of the off-label application but rather its "introduction or delivery for introduction into interstate commerce" of the device itself without "adequate directions" for that intended use, see 21 U.S.C. §§ 331(a), 352(f)(1), 21 C.F.R. §§ 801.4, 801.5. The alleged conduct underlying Alton's fraud claim therefore could not have been in contravention of Medtronic's duties under the FDCA.
Alton's fraud claim falls instead into the second category of parallel claims contemplated in Lohr and its progeny, as a claim premised on conduct that contravenes state-law duties of such generality as not to present any risk of interference with the federal medical-device regulatory scheme. The FDCA does not purport to regulate medical device manufacturers' representations regarding off-label applications of approved medical devices, see supra, and in consequence Medtronic's "general obligation[]" to avoid affirmative misrepresentations regarding the risks associated with such applications with the intent that members of the public rely on those misrepresentations to their detriment is "no more a threat to federal requirements than would be a state-law duty to comply with local fire prevention regulations and zoning codes, or to use due care in the training and supervision of a work force." Lohr, 518 U.S. at 501-502, 116 S.Ct. 2240. Nothing in Riegel or Perez suggests to the contrary, in that Riegel did not repudiate any aspect of the Lohr majority's analysis, see Riegel, 552 U.S. at 330, 128 S.Ct. 999, and recognition of the fraud claim at issue here, unlike the fraud by omission claim at issue in Perez, would not place Medtronic
Three of Alton's causes of action allege Medronic's liability under Oregon's statutory products liability scheme, respectively for failure to warn, for defective design, and for misrepresentation, each on a theory of strict liability. The elements of a strict products liability claim under Oregon law are codified at Or.Rev.Stat. 30.920, which provides as follows:
Or.Rev.Stat. 30.920; see also, e.g., Mason v. Mt. St. Joseph, Inc., 226 Or.App. 392, 396-398, 203 P.3d 329 (2009) (discussing the distinction between strict products liability claims and products liability claims in general). "It is a disputable presumption in a products liability civil action that a product as manufactured and sold or leased is not unreasonably dangerous for its intended use." Or.Rev.Stat. 30.910. Or.Rev.Stat. 30.900 provides that a person may bring a civil action against the manufacturer of a product for personal injury, death, or property damage arising out of "[a]ny design ... or other defect in a product," "[a]ny failure to warn regarding a product," or "[a]ny failure to properly instruct in the use of a product." Or.Rev. Stat. 30.900.
The Oregon Court of Appeals has discussed a manufacturer's duty to warn the public regarding a product as follows:
[C]omment h of [Restatement (Second) of Torts] section 402A provides:
Benjamin v. Wal-Mart Stores, 185 Or.App. 444, 453-455, 61 P.3d 257 (2002) (modifications original). Alton's strict products liability law claim for failure to warn is premised chiefly on the allegation that Medtronic knew of dangers associated with off-label use of components of the Infuse device and knew that such off-label use was reasonably foreseeable, but did not adequately warn Alton or his physicians about those dangers either in the warnings incorporated into the FDA-mandated labeling of the device or in its communications with the public. See Complaint, ¶¶ 279-280, 284-286. Alton further alleges that the bone protein component of the Infuse device that was used in his PLIF surgery was defective when it left Medtronic's control. See Complaint, ¶ 282. These allegations are sufficient to state a strict products liability claim for failure to warn under Oregon law. See Or.Rev.Stat. 30.900, 30.920; see also Benjamin, 185 Or. App. at 453-455, 61 P.3d 257. The failure to warn claim is therefore not impliedly preempted under Buckman. See Buckman, 531 U.S. at 348, 121 S.Ct. 1012.
The failure to warn claim is also a parallel claim under the reasoning of Lohr, Riegel, and Stengel. As noted above, Alton's allegations that Medtronic expended large sums of money in affirmative promotion of off-label PLIF surgery involving the protein component of the Infuse device without the approved interbody cage component are sufficient to support the conclusion that such application was an "intended use" of the device. See 21 C.F.R. § 801.4. Interpreting Alton's allegations in the light most favorable to him, I therefore conclude for purposes of Medtronic's motion to dismiss that the off-label application that resulted in Alton's injury was an intended use. As such, Alton's allegations describe conduct in contravention of Medtronic's duties under the FDCA, namely its duty to provide "adequate directions" as to that intended use in its product labeling. 21 U.S.C. § 352(f)(1); see also 21 C.F.R. § 801.5.
It is clear that Alton's failure to warn claim is preempted under Section 360k(a) to the extent recognition of the claim would constitute imposition of any warning requirement in addition to or different from the "adequate directions for use" that would be mandated under the FDCA for PLIF surgery involving the bone-protein component alone. See 21 U.S.C. § 360k(a); see also Lohr, 518 U.S. at 495, 116 S.Ct. 2240; Riegel, 552 U.S. at 330, 128 S.Ct. 999; Stengel, 704 F.3d at 1233. However, to the extent that Medtronic's compliance with its FDCA labeling obligations as to the allegedly intended use at issue here would constitute compliance with Oregon's statutory products liability scheme regarding Medtronic's duty to warn in connection with that same allegedly intended use, it is equally clear that his claim would escape express preemption. See 21 U.S.C. § 360k(a); see also Lohr, 518 U.S. at 495, 116 S.Ct. 2240; Riegel, 552 U.S. at 330, 128 S.Ct. 999; Stengel, 704 F.3d at 1233; see also Mears v. Marshall, 149 Or.App. 641, 656-658, 944 P.2d 984 (1997) (finding a failure to warn claim cognizable under Oregon's strict products liability
Alton's strict liability claim for defective design is premised chiefly on the allegations that the Infuse device was defectively designed in that the device was unsafe when used for the PLIF surgery Medtronic allegedly affirmatively promoted at the time it left Medtronic's control, that Alton and his physicians were not aware of such defects in the device's design, that such defects caused the device not to perform as an ordinary consumer would expect, and that the device could have been made safe for such application had Medtronic adopted a reasonable alternative design. See Complaint, ¶¶ 297-301. These allegations are sufficient to state a strict products liability claim for design defect under Oregon law. See Or.Rev. Stat. 30.900, 30.920; see also Benjamin, 185 Or.App. at 460-461, 61 P.3d 257. The failure to warn claim is therefore not impliedly preempted under Buckman. See Buckman, 531 U.S. at 348, 121 S.Ct. 1012.
The design of the Infuse device was approved by the FDA through the rigorous PMA process. A finding of Medtronic's liability on Alton's design defect claim would constitute imposition of requirements on the design of the device in addition to those mandated by the FDA through PMA approval. In consequence, the design defect claim is not a parallel claim under the reasoning of Lohr, Riegel, and Stengel, but rather falls squarely within the scope of Section 360k(a). See 21 U.S.C. § 360k(a); see also Lohr, 518 U.S. at 495, 116 S.Ct. 2240; Riegel, 552 U.S. at 330, 128 S.Ct. 999; Stengel, 704 F.3d at 1233; but cf. Mears, 149 Or.App. at 658-659, 944 P.2d 984 (finding a defective design claim cognizable under Oregon's strict products liability law and not preempted under Lohr, on the ground that the design-related requirements of Oregon's strict products liability scheme are not device-specific); Ramirez, 961 F.Supp.2d at 997-98, 2013 WL 4446913 at *16-17 (finding a defective design claim premised on an off-label application of the Infuse device not preempted on the ground that the FDA did not determine that the Infuse device was not defectively designed as to intended off-label applications of the device). Because recognition of the design defect claim would tend to undermine the federal medical device regulatory scheme, the claim is preempted, and Medtronic's motion is granted as to Alton's strict products liability claim for defective design.
Alton's strict liability claim for misrepresentation is premised chiefly on the allegations that Medtronic affirmatively misrepresented the risks associated with PLIF surgeries using the bone-protein component of the Infuse device with the intention of inducing physicians to use the device for such surgery in reliance on Medtronic's misrepresentations. See Complaint, ¶¶ 312-316. It is not clear to me whether these allegations are sufficient to state a claim under Oregon's strict products liability scheme that is meaningfully
Assuming that the misrepresentation claim is cognizable under Oregon's strict products liability law, the claim is also not expressly preempted under Section 360k(a), for the same reasons discussed above in connection with Alton's fraud claim. That is, because the FDCA does not purport to regulate medical device manufacturers' representations regarding off-label applications of approved medical devices, recognition of Alton's misrepresentation claim — premised as it is on Medtronic's alleged affirmative misrepresentations regarding off-label applications of the Infuse device — would not present any risk of interference with the federal medical-device regulatory scheme, and would not constitute imposition of any state-law requirement different from or in addition to the FDA-mandated requirements. See Lohr, 518 U.S. at 501-502, 508, 116 S.Ct. 2240 (Breyer, J., concurring in part and concurring in the judgment); Stengel, 704 F.3d at 1229. Medtronic's motion to dismiss is therefore denied as to Alton's strict products liability claim for misrepresentation.
Alton's products liability claim sounding in negligence is chiefly premised on the allegations that, in light of Medtronic's affirmative promotion of off-label applications of the Infuse device, it was foreseeable that Alton's physicians would use the device in a promoted off-label manner, that Medtronic's knowledge of the risks associated with such off-label applications of its device gave rise to a "special relationship" between Medtronic and Alton as a result of which Medtronic owed Alton duties to disclose the risks associated with such applications of which it was aware and to exercise reasonable care in preventing the device from creating an unreasonable risk of harm to Alton, and that Medtronic violated these duties. See Complaint, ¶¶ 325-331. These allegations are sufficient to state a cause of action for negligence under Oregon law. See, e.g., Fazzolari v. Portland School Dist., 303 Or. 1, 4-7, 17, 734 P.2d 1326 (1987) (describing elements of cause of action for negligence under Oregon law); Two v. Fujitec Am., Inc., 256 Or.App. 784, 794, 305 P.3d 132 (2013) ("A `product liability civil action' can include both negligence and strict liability claims within its scope"), citing Mason, 226 Or. App. at 397, 203 P.3d 329. The negligence claim is therefore not impliedly preempted under Buckman. See Buckman, 531 U.S. at 348, 121 S.Ct. 1012.
For the same reasons discussed above in connection with Alton's fraud and failure to warn claims, the negligence claim is a parallel claim escaping express preemption under Section 360k(a), to the same extent as is the failure to warn claim. That is, because the FDCA does not purport to regulate manufacturers' communications regarding off-label applications of PMA-approved devices, to the extent that recognition of the negligence claim would not constitute de facto imposition of any state-law requirement on a device different from or in addition to those requirements imposed by the FDA, the claim is not preempted. As was the case in connection
Alton's breach of express warranty claim is premised chiefly on the allegation that in the course of its voluntary communications with physicians and the public regarding off-label applications of the infuse device, Medtronic expressly warranted the safety and efficacy of the device for those applications, including PLIF surgery using only the bone-protein component of the device, with the knowledge that the device was not safe and effective for such application. See Complaint, ¶¶ 339-342. Alton's allegations are sufficient to state a claim for breach of express warranty under Oregon law. See Larrison v. Moving Floors, 127 Or.App. 720, 724, 873 P.2d 1092 (1994). The breach of express warranty claim is therefore not impliedly preempted under Buckman. See Buckman, 531 U.S. at 348, 121 S.Ct. 1012.
If Alton's breach of express warranty claim were premised on any statements made in the FDA-mandated labeling of the Infuse device, the claim would be preempted. Here, however, Alton's warranty claim is premised solely on Medtronic's alleged voluntary statements to the public and to the medical community regarding the safety and efficacy of off-label applications of the device, which statements are not subject to FDA regulation. In consequence, recognition of Alton's breach of express warranty claim presents no risk of interference with the federal medical device regulatory scheme, and the claim escapes express preemption under Section 360k(a). See Lohr, 518 U.S. at 501-502, 508, 116 S.Ct. 2240 (Breyer, J., concurring in part and concurring in the judgment); Stengel, 704 F.3d at 1229; see also Mears, 149 Or.App. at 659, 944 P.2d 984 (finding a breach of express warranty claim cognizable under Oregon law and not preempted under Lohr). Medtronic's motion to dismiss (to the extent argued on preemption grounds) is therefore denied as to Alton's breach of express warranty claim.
As noted above, in addition to arguing that Alton's strict products liability claim for defective design is preempted under the FDCA as amended by the MDA, Medtronic argues that the defective design claim is barred under Restatement of Torts Section 402A, Comment k. Because I find that the claim is expressly preempted under the FDCA, see supra, I decline to address Medtronic's argument based on Section 402A, Comment k.
As noted above, in addition to arguing that Alton's breach of express warranty claim is preempted under the FDCA as amended by the MDA, Medtronic argues that the warranty claim necessarily fails as a matter of law because its FDA-mandated labeling for the Infuse device expressly disclaimed the existence or enforceability of any express warranties. However, Alton's warranty claim is not premised on any warranty set forth in the Infuse labeling or in connection with any FDA-approved application of the Infuse device, but
As noted above, in addition to arguing that Alton's fraud claim is preempted under the FDCA as amended by the MDA, Medtronic argues that the claim is subject to dismissal as having been pled without the particularity requisite under federal procedural law to such claims. Under Oregon law, the elements of a fraud claim are:
Webb, 274 Or. at 391, 546 P.2d 1078; Johnsen v. Mel-Ken Motors, 134 Or.App. 81, 89, 894 P.2d 540 (1995). Federal Civil Procedure Rule 9(b) provides, in relevant part, that "[i]n alleging fraud or mistake, a party must 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). When sitting in diversity, this court applies state law as to the elements of a plaintiff's fraud claim, but applies federal law as to how such elements must be pled:
Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir.2003) (citations, internal quotation marks omitted)
The Rule 9(b) particularity requirement is satisfied if the pleading "identifies the circumstances constituting fraud... so that the defendant can prepare an adequate answer from the allegations." Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir.1989). That is, the allegations must be sufficiently specific "to give defendants notice of the particular misconduct which is alleged to constitute the fraud ... so that they can defend against the charge and not just deny that they have done anything wrong." Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985).
Medtronic argues for dismissal of Alton's fraud claim for failure to comply with the requirements of Rule 9(b). However, analysis of Alton's supporting allegations establishes that the claim is pled with adequate particularity. The details of Alton's allegations that Medtronic fraudulently concealed the health risks associated with off-label applications of Infuse, and specifically with PLIF surgery using only the bone-protein component of the Infuse device, are pled with voluminous particularity. See Complaint ¶¶ 23-38, 78-125, 131-140, 166-216, 267-268. Medtronic is
For the reasons set forth above, Medtronic's motion (#23) and Alton's motion (#26) for judicial notice are each granted as discussed above, and Medtronic's motion (#19) to dismiss is granted as to Alton's strict products liability claim for defective design and otherwise denied, as discussed above. Alton's strict products liability claim for defective design is accordingly dismissed as preempted under the federal Food Drug and Cosmetics Act.
(Emphasis original.)
