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HILARY E. YOUNGBLOOD, California Bar No. 258026 (Admitted Pro Hac Vice)

hyoungblood@dblawsf.com

DAVIDOVITZ + BENNETT

101 Montgomery Street, 25th Floor

San Francisco, CA 94104-4176

TEL: (415) 956-4800

FAX: (415) 788-5948

Attorneys for Defendant, 

SUTTER WEST BAY HOSPITALS, doing business as

CALIFORNIA PACIFIC MEDICAL CENTER 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA 

IN RE: Bard IVC Filters

Products Liability Litigation

This Document Relates to:

WAYNE RUDEN v. C.R. BARD, INC.,

et al.

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MDL No. 2:15-md-02641-DGC

NOTICE OF DEFENDANT

CALIFORNIA PACIFIC MEDICAL

CENTER'S MOTION AND MOTION TO

DISMISS PLAINTIFF'S AMENDED

COMPLAINT UNDER FED.R.CIV.P.

12(b)(6) AND 12(e); OR IN THE

ALTERNATIVE FOR MOTION TO

REMAND UNDER 28 U.S.C. §

1447(c) AND FED.R.CIV.P.

12(b)(1) WITH SUPPORTING

MEMORANDUM; DECLARATION OF

HILARY E. YOUNGBLOOD 

ORAL ARGUMENT REQUESTED

Honorable David G. Campbell 

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC

Case 2:15-md-02641-DGC Document 870 Filed 02/19/16 Page 1 of 24
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 TABLE OF CONTENTS 

Page(s)

NOTICE OF MOTION TO DISMISS/REMAND .. . . . . . . . . . . 1

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . iv

 I. INTRODUCTION. . . . . . . . . . . . . . . . . . . 3

 II. FACTUAL BACKGROUND. . . . . . . . . . . . . . . . 4

 III. LEGAL ANALYSIS. . . . . . . . . . . . . . . . . . 6

A. MOTION TO DISMISS UNDER FED.R.CIV.PROC. 12(b)(6)

OR FOR A MORE DEFINITE STATEMENT UNDER 12(e). 6

1. Legal Standard. . . . . . . . . . . . . . 6

2. The Second Cause of Action for Negligence

Fails to State a Claim Against CPMC and Is

Uncertain. . . . . . . . . . . . . . . . 8

3. The Seventh Cause of Action for Negligent

Misrepresentation Fails as to CPMC and Is

Uncertain. . . . . . . . . . . . . . . . 10

4. The Eighth Cause of Action for Breach of

Fiduciary Duty Fails as to CPMC and Is

Uncertain . . . . . . . . . . . . . . . 12

5. The Ninth Cause of Action for Negligence -

Recall/Retrofit Fails as to CPMC and Is

Uncertain. . . . . . . . . . . . . . . . 12

6. Plaintiff's Punitive Damages Claim is

Improper and Should be Dismissed. . . . . 14

7. The Gravamen of the FAC is Product

Liability. . . . . . . . . . . . . . . . 15

B. ALTERNATE MOTION TO REMAND TO STATE COURT. . 17

IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . 17

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC i

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TABLE OF AUTHORITIES

CASES PAGES(S)

Ashcroft v. Iqbal, 

556 U.S. 662 (2009).. . . . . . . . . . . . . . . . . . 1, 6

Baisden v. Bayer Corp.,

275 F.Supp.2d 759 (S.D. W.Virginia 2003). . . . . . . . . . 7

Bell Atlantic Corp. v. Twombly, 

550 U.S. 544 (2007).. . . . . . . . . . . . . . . . 6, 7, 12

Brousseau v. Jarrett, 

73 Cal.App. 3d 864 (1977).. . . . . . . . . . . . . . . . 15

Derrick v. Ontario Community Hospital, 

47 Cal.App.3d 145 (1975). . . . . . . . . . iv, 5, 9, 10-13

Estate of Prasad v. County of Sutter, 

958 F.Supp.2d 1101 (E.D. Cal. 2013).. . . . . . . 14 at fn 2

Friedman v. Merck & Co.,

107 Cal.App.4th 454 (2003). . . . . . . . . . . . . . . . . .11

Hector v. Cedars-Sinai Medical Center, 

180 Cal.App.3d 493 (1986).. . . . . . . . . . . . . . . . 16

Houston v. Medtronic, Inc., 

957 F.Supp.2d 1166 (C.D. Cal. 2013) . . . . . . . . . . . . 10

Huntman v. Danek Medical, Inc., No. 97-2155-IEG RBB,

1998 WL 663362 (S.D. Cal. July 24, 1998). . . . . . . . . . .11

In re Donald J. Trump Sec. Litig., 

7 F.3d 357 (3rd Cir. 1993)(cert. denied). . . . . 1 at fn 1

In re Prudential Ins. Co. of America Sales Practices Litig.,

170 F.Supp.2d 1346 (Jud.Pan.Mult.Lit. 2001).. . . 1 at fn 1

Lewis v. Ollison, 

571 F.Supp.2d 1162 (C.D. Cal. 2008).. . . . . . . . . . 6, 7

Lopez v. Nissan N. Am., Inc.,

201 Cal.App.4th 572 (2011) . . . . . . . . . . . . . . . . 11

Mayers v. Litow, 

154 Cal.App.2d. 413 (1957). . . . . . . . . . . . . . . . . 9 

McCabe v. Gen. Foods Corp.,

811 F.2d 1336 (9th Cir. 1987). . . . . . . . . . . . . . . 17

McHenry v. Renne,

84 F.3d 1172 (9th Cir. 1996). . . . . . . . . . . . . . . 8

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC ii

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Moore v. Regents of Univ. of Cal., 

51 Cal.3d 120 (1990). . . . . . . . . . . . . . . . . . . 8

Pierson v. Sharp Memorial Hospital, Inc.,

216 Cal.App.3d 340 (1989).. . . . . . . . . . . . . . . . 16

Ramirez v. Plough, Inc., 

6 Cal.4th 539 (1993). . . . . . . . . . . . . . . . . . . 13

Sadler v. Pella Corp., 

2015 WL 7454516 (D. South Carolina Nov. 23, 2015). 1 at fn 1

Salkin v. United Services Auto. Ass'n., 

767 F.Supp.2d 1062 (C.D. Cal. 2011).. . . . . . . . . . . 4

Silverhart v. Mount Zion Hospital, 

20 Cal.App.3d 1022 (1971).. . . . . . . . . . . iv, 5, 15-16

Singleton v. Univ. of Cal., No. C–93–3496 MHP,

1995 WL 16978 (N.D. Cal. Jan. 6, 1995). . . . . . . . . . 7

Taylor v. Superior Court, 

24 Cal.3d 890 (1979). . . . . . . . . . . . . . . . . . . 15

West v. JPMorgan Chase Bank, N.A. 

214 Cal.App.4th 780 (2013) . . . . . . . . . . . . . . . 10-11

Xerox Corp. v. Far Western Graphics, Inc., No. C–03–4059–JFPVT, 

2004 WL 2271587 (N.D.Cal. Oct. 6, 2004).. . . . . . . . . 15

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC iii

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STATUTES AND RULES

STATUTES

28 U.S.C. § 1447(c).. . . . . . . . . . . . . . . . . . v, 2

Cal. Civ. Code § 3294(a). . . . . . . . . . . . . . v, 2, 14

Cal. Code Civ. Proc. § 425.13.. . . . . v, 2, 14, 14 at fn 1

Cal. Code Civ. Proc. § 425.13(a). . . . . . . . . . . . . v

RULES

Fed.R.Civ.P. 8(a)(2). . . . . . . . . . . . . . . . . 6, 10

Fed.R.Civ.P. 9(b) . . . . . . . . . . . . . . . . . . . . . 10

Fed.R.Civ.P. 12(b)(1).. . . . . . . . . . . . . v, 2, 4, 17

Fed.R.Civ.P. 12(b)(6).. . . . . . . . v, 1, 3, 6, 7, 14, 15

Fed.R.Civ.P. 12(e). . . . . . . . . . . . . . v, 2, 6, 8, 17

Fed.R.Civ.P. 12(g). . . . . . . . . . . . . . . . . . . . 2

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC iv

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NOTICE OF MOTION TO DISMISS OR ALTERNATIVELY TO REMAND

TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that defendant Sutter West Bay

Hospitals, doing business as California Pacific Medical Center

("CPMC"), will and hereby does move this Court for an Order

granting its motion to dismiss the Second, Seventh, Eighth, and

Ninth Causes of Action, along with Plaintiff's punitive damages

claim, in Plaintiff's First Amended Complaint ("FAC"), pursuant

to Federal Rule of Civil Procedure ("Rule") 12(b)(6).1/

CPMC is a sham defendant. CPMC's motion to dismiss is

therefore made on the ground that the Second, Seventh, Eighth,

and Ninth claims fail to state a claim for relief "that is

plausible on its face," as required under Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009), and that Plaintiff's claim for

punitive damages is insufficiently pled, as follows:

1. Plaintiff's Second, Eighth, and Ninth Causes of

Action fail since CPMC did not owe plaintiff a fiduciary duty.

2. Plaintiff's Ninth Cause of Action fails to allege

any duty on the part of CPMC to recall the subject device.

3. Plaintiff's Seventh Cause of Action fails to allege

any facts relating to breach of duty owed to Plaintiff by CPMC. 

4. The gravamen of the FAC is in product liability,

and California law does not recognize strict product liability

1/ This Court has vested authority to rule on this motion, which

ruling shall be governed by California substantive law and

federal procedural law. See In re Donald J. Trump Sec. Litig.,

7 F.3d 357 (3rd Cir. 1993)(cert. denied); In re Prudential Ins.

Co. of America Sales Practices Litig., 170 F.Supp.2d 1346

(Jud.Pan.Mult.Lit. 2001); Sadler v. Pella Corp., 2015 WL

7454516 (D. South Carolina Nov. 23, 2015).

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC 1

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for providers of medical services such as CPMC.

5. CPMC was fraudulently misjoined in the case to

defeat diversity and federal jurisdiction.

6. Plaintiff's punitive damages claim fails under

California Code of Civil Procedure section 425.13 and Civil

Code section 3294(a) to plead facts to show CPMC's corporate

leaders' requisite intent by clear and convincing evidence. 

Alternatively, CPMC moves for an Order granting its

motion for a more definite statement pursuant to Rule 12(e),

on the ground that the Second, Seventh, Eighth and Ninth Causes

of Action are so vague or ambiguous that CPMC cannot reasonably

respond: (1) Plaintiff's Second and Ninth Causes of Action fail

to identify the duty of care which CPMC allegedly breached; (2)

Plaintiff's Seventh Cause of Action is unintelligible as to who

made which alleged misrepresentations to whom; and (3)

Plaintiff's Eighth Cause of Action is nonsensical. 

Alternatively, joined under Rule 12(g), CPMC will and

hereby does move for an Order dismissing and remanding this

action to state court pursuant to 28 U.S.C. § 1447(c) for lack

of subject-matter jurisdiction under Rule 12(b)(1).

CPMC's motion is based on this Notice and Motion, the

Memorandum and Declaration in support thereof, the complete

files and records in this action, and such other argument and

evidence presented at or before the hearing of this matter. 

DATED: February 19, 2016. DAVIDOVITZ + BENNETT

By: /s/

HILARY E. YOUNGBLOOD

Attorneys for Defendant, 

SUTTER WEST BAY HOSPITALS,

doing business as CALIFORNIA

PACIFIC MEDICAL CENTER

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC 2

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SUMMARY OF ARGUMENT

This is a products liability action against the

defendant manufacturers of a medical device, and the hospital

where it was placed, CPMC. However, Plaintiff's claims for

negligence, negligent misrepresentation, breach of fiduciary

duty, and prayer for punitive damages, fail to state a claim

upon which relief can be granted as to defendant CPMC and

should be dismissed without leave to amend. 

First, CPMC should be dismissed under Federal Rule of

Civil Procedure ("Rule") 12(b)(6), since Plaintiff cannot

plead a viable claim against a hospital for negligence,

negligent misrepresentation, or breach of fiduciary duty based

on the hospital's alleged failure to advise Plaintiff of a

product warning. Even if the alleged facts were true, CPMC

did not owe fiduciary duty of care to Plaintiff. Derrick v.

Ontario Comty. Hospital, 47 Cal.App.3d 145, 154 (1975). 

Second, the gravamen of this action is products

liability. California law does not recognize strict product

liability for medical providers such as hospitals. Silverhart

v. Mount Zion Hospital, 20 Cal.App.3d 1022 (1971). 

Finally, Plaintiff's punitive damages claim should be

dismissed pursuant to California Civil Code section 3294(a)

and Civil Procedure section 425.13(a). At the least, CPMC

seeks an Order for more definite statement under Rule 12(e). 

Alternatively, CPMC seeks an Order dismissing the

action under Rule 12(b)(1) for lack of subject matter

jurisdiction, and remanding the action to state court pursuant

to 28 U.S.C. § 1447(c).

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC v

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I. INTRODUCTION

Initially, plaintiff filed this action in state court,

but Bard defendants removed to the Northern District of

California, and sought transfer to the Multidistrict Panel.

Thereafter, on December 3, 2015, plaintiff filed a First

Amended Complaint against California Pacific. See FAC,

attached as Exhibit 1 to the Declaration of Hilary E.

Youngblood in Support of CPMC's Motion. 

On February 4, 2016, the United States Judicial Panel

on Multidistrict Litigation entered its Conditional Transfer

Order, thereby transferring this action to this Court. The

Master Complaint does not apply to plaintiff's claims against

CPMC. [Doc. 364.]

Plaintiff's claims against CPMC hinge on two theories:

medical products liability, and negligent breach of fiduciary

duty. Plaintiff's FAC fails to state any valid claim for

relief as to CPMC, since under California law, hospitals are

not subject to strict products liability, and CPMC did not owe

Plaintiff a fiduciary duty. CPMC therefore cannot be liable to

the Plaintiff for allegedly failing to inform Plaintiff of a

2010 FDA warning letter relating to the BRF. Further, CPMC did

not negligently fail to recall Bard's device, since the

hospital had no duty to do so. 

Finally, Plaintiff seeks punitive damages against CPMC,

without alleging any factual support in support of the request

in direct contradiction to California law. His blanket

allegation that all defendants' actions were "intentional,

willful, knowing, fraudulent, malicious," and to "serve their

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC 3

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own pecuniary interests," if fatally deficient. [FAC at ¶¶

135-141 (p.26-27).] 

Given the foregoing, CPMC is fraudulently misjoined in

this action and should be dismissed. Plaintiff, a California

resident, alleges personal in jury damages against defendants

C.R. Bard, Inc., a New Jersey corporation, Bard Peripheral

Vascular, Inc., an Arizona corporation, and CPMC, a California

corporation. From the face of the FAC, it is clear that

Plaintiff has named CPMC as a defendant for the sole purpose

of defeating diversity. 

The Court has jurisdiction to preside over this matter,

and, therefore, to dismiss Plaintiff's claims against CPMC.

See e.g. Salkin v. United Services Auto. Ass'n., 767 F.Supp.2d

1062, 1069 (C.D. Cal. 2011). Accordingly, CPMC respectfully

requests that the Court sustain its Rule 12 (b)(6) motion, and

dismiss with prejudice the FAC as to CPMC. 

However, if the Court finds that CPMC is not a sham

defendant, then CPMC moves the Court for an Order granting its

motion to remand on the basis that under Rule 12(b)(1) the

Court lacks subject-matter jurisdiction. 

II. FACTUAL BACKGROUND

In March 2004, Plaintiff was implanted with a Bard

Recovery Filter ("BRF") at CPMC. Bard designed and

manufactured the BRF.

Plaintiff's Second Cause of Action for negligence

against CPMC, alleges that on August 9, 2010, the FDA issued

a warning letter regarding the BRF, and "advised treaters,

such as CPMC and its agents, to consider the risks and

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC 4

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benefits of filter removal for each patient." [FAC at 16:25-

26.] On "information and belief," Plaintiff claims that CPMC

received this warning, or negligently relied on Bard's

misrepresentations about the product, and negligently failed

to notify him. [FAC at 4:14-15, 16:27, 17:3-10.]

Plaintiff's Second Cause of Action for is based on his

claim that CPMC created a fiduciary duty through its agents,

who recommended and placed the BRF. These "agents" consisted

of "the physicians employed by and/or associated with CPMC,

including Dr Edwin Hassid, Dr. Sung Choi, Dr. William Kuo, Dr.

Bertrand Tuan, nursers, officers, directors, attendants and

other employees of CPMC that decided, directed and/or

performed the BRF procedure on Plaintiff." [FAC at 16:8-14

(emphasis added).]

Plaintiff's Seventh Cause of Action for negligent

misrepresentation is predicated entirely on CPMC's claimed

failure to "inquire as to [Bard's] misrepresentations." [FAC

at 22:7-8.] The FAC further alleges that the "Defendants'

intent and purpose in making these misrepresentations was to

deceive and defraud the public and the medical community..."

[FAC at 22:18-19], but it is unclear to which defendants

Plaintiff refers.

Plaintiff's Eighth Cause of Action for Breach of

Fiduciary Duty is based on the doctors' advice to place the

BRF in 2004 [FAC at 24:6-10], and the later failure to advise

Plaintiff of "adverse events." [FAC at 24:18-24.]

Plaintiff's Ninth Cause of Action is based on CPMC's

alleged breach of a duty to advise Plaintiff of the FDA

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC 5

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warning [FAC at 25:19-22] and to recall the BFR from the

market. [FAC at 25:25.]

Plaintiff seeks punitive damages, claiming that

defendants, "acted to serve their own pecuniary interests."

[FAC at 27:7.]

III. LEGAL ANALYSIS

A. MOTION TO DISMISS UNDER RULE 12(b)(6) OR FOR A MORE

DEFINITE STATEMENT UNDER 12(e)

1. Legal Standard

Under Rule 8(a)(2), a complaint must provide, "a short

and plain statement of the claim showing that the pleader is

entitled to relief, in order to 'give the defendant fair

notice of what the ... claim is and the grounds upon which it

rests." Lewis v. Ollison, 571 F.Supp.2d 1162, 1168 (C.D. Cal.

2008). A complaint must be dismissed under Rule 12(b)(6), when

a plaintiff's allegations fail "to state a claim upon which

relief can be granted." See Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007). 

"While a complaint attacked by a Rule 12(b)(6) motion

to dismiss does not need detailed factual allegations, a

plaintiff's obligation to provide the 'grounds' of his

'entitle[ment] to relief' requires more than labels and

conclusions, and a formulaic recitation of the elements of a

cause of action will not do.' . . . Dismissal is appropriate

on a Rule 12(b)(6) motion if the facts alleged do not state a

claim to relief that is 'plausible on its face.' Dismissal

without leave to amend is appropriate when it is clear that

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC 6

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the deficiencies in the complaint could not possibly be cured

by amendment." Lewis, supra, 571 F.Supp.2d at 1168 (citations

omitted). 

Conclusory allegations, such as "[o]n information and

belief, CPMC received [the FDA] warning" [FAC, at 16:27]

unsupported by proper factual allegations, do not meet the

requisite threshold to defeat a motion to dismiss." Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)("Factual

allegations must be enough to raise a right to relief above

the speculative level.") 

Inconsistent factual allegations, such as "CPMC knew

the BRF was defective . . . or, in the alternative, BARD

concealed dangers known to BARD from CPMC" [FAC, at 3:19-21],

are grounds for dismissal of CPMC. Analogously, in Baisden v.

Bayer Corp., 275 F.Supp.2d 759, 762-763 (S.D. W.Virginia,

2003), the court dismissed the defendant physician based on a

finding of fraudulent joinder: 

....[T]he impossibility of the claim against the nondiverse defendant(s) is implicit in the contradictory

allegations: 1) defendant manufacturer hid the

information that 2) non-diverse doctor or pharmacist

knew or should have known. In each of these cases,

the premise of the case against the non-diverse

defendant(s) that they knew or should have known of

the dangers is undercut, defeated, and made

impossible by the claims of fraud and

misrepresentation against the manufacturers, who

allegedly prevented anyone from knowing the dangers. 

That contradiction, apparent on the face of the

complaint, is also present here.

Rule 12(b)(6) also applies to strike punitive damages. 

Singleton v. Univ. of Cal., 1995 WL 16978, at *1 (N.D. Cal.

1995). Hence, joined with CPMC's motion to dismiss under Rule

12(b)(6) is a request for an Order striking Plaintiff's

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

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punitive damages claim.

"[T]he judge may in his discretion, in response to a

motion for more definite statement under Rule 12(e), require

such detail as may be appropriate in the particular case."

McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). In the

alternative, CPMC seeks an Order requiring a more definite

statement of Plaintiff's claims.

2. The Second Cause of Action for Negligence Fails to

State a Claim Against CPMC and Is Uncertain

The Second cause of action set forth in the FAC

attempts to plead the elements of negligence against CPMC

couched upon a breach of fiduciary duty. Plaintiff claims

CPMC, "created a fiduciary or special relationship with the

Plaintiff when they and their agents recommended and advised

the insertion of a BRF in Plaintiff, and when they and their

agents inserted a BRF in Plaintiff on or about March 2004."

[FAC at 16:8-11.] Plaintiff concludes that CPMC, "had an

ongoing duty to reasonably warn the Plaintiff of newlydiscovered risks related to this danger based on their

fiduciary and special relationship with the Plaintiff." [FAC

at 16:18-20.]

First, Plaintiff's negligence claim fails under

California law since it is established that a hospital does

not owe a fiduciary duty of care to patients. Moore v. Regents

of Univ. of Cal., 51 Cal.3d 120, 133 (1990)(only defendant

physician and not hospital stood in fiduciary duty to

plaintiff in professional negligence and lack of informed

consent action). Plaintiff therefore cannot succeed in a cause

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

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of action for negligence against CPMC on an alleged breach of

fiduciary duty theory. 

The sole exception permitting breach of fiduciary duty

claims against a hospital requires, "a recognized theory of

secondary liability, such as respondeat superior." Id. The

doctors' "association with CPMC (the nature of which Plaintiff

is unaware) does not de facto create secondary liability.

California courts have held that non-employee doctors who are

associated with a hospital are not agents of the hospital, and

that the hospital has no liability for the acts of these

independent contractor doctors. See Mayers v. Litow (1957) 154

Cal.App.2d 413, 417-418. 

Second, Plaintiff's negligence claim fails to state a

valid cause of action as to CPMC since the hospital had no

duty to inform Plaintiff of the FDA correspondence. Plaintiff

alleges that the FDA issued a warning letter in April 2010,

"advis[ing] treaters, such as CPMC and its agents, to consider

the risks and benefits of filter removal for each patient."

[FAC at 16:25-26.] Assuming for purposes of this motion that

CPMC received this letter, such a letter could not have

created a duty of care owed to Plaintiff by CPMC since, under

California law, a hospital has no "duty to advise a patient 

. . . concerning the patient's condition when that duty might

substantially interfere with the relationship between the

patient and her attending physician." Derrick v. Ontario

Community Hospital, 47 Cal.App.3d 145, 154 (1975). 

In Derrick, the court declined to impose on the

defendant hospital a duty to advise a patient that she had

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

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contacted a contagious disease. Instead, the court imposed the

duty to warn the plaintiff on plaintiff's physician.

Therefore, any duty to warn Plaintiff belonged to his

physician(s), not CPMC. To the contrary, under Derrick, advice

from a hospital to a patient concerning risks of filter

removal may constitute interference with the physician-patient

relationship. Hence, Plaintiff's Second Cause of Action for

negligence fails to state a claim upon which relief can be

granted as to CPMC and should be dismissed. In the

alternative, the FAC should be amended to identify the duty

CPMC allegedly breached.

3. The Seventh Cause of Action for Negligent

Misrepresentation Fails as to CPMC and Is

Uncertain

Plaintiff's FAC fails to comply with the pleading

requirements of Rule 8(a)(2) and Rule 9(b). See Houston v.

Medtronic, Inc., 957 F. Supp. 2d 1166, 1180 (C.D. Cal. 2013).

Instead, the FAC alleges that Bard provided "false or

incorrect information, or omitted or failed to disclose

material information." [FAC at 21:24.] To stretch this claim

to CPMC, Plaintiff alleges, "CPMC failed to properly screen or

inquire as to these misrepresentations and passed these

misrepresentations along to Plaintiff's health care

providers." [FAC at 22:7-9.] 

Negligent misrepresentation requires proof that

defendant (1) made a false representation of material fact to

plaintiff, (2) without reasonable ground for believing it to

be true, (3) with the intent to deceive, (4) on which

plaintiff relied and (5) was therefore harmed. West v.

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

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JPMorgan Chase Bank, N.A., 214 Cal.App.4th 780, 792 (2013). In

California, negligent misrepresentation further differs from

intentional misrepresentation in that, while certain

nondisclosures may support a claim for intentional

misrepresentation, a negligent misrepresentation claim

requires a "positive assertion," and hence "omissions" or

nondisclosures cannot give rise to liability for negligent

misrepresentation. Lopez v. Nissan N. Am., Inc., 201

Cal.App.4th 572, 596 (2011). 

First, there is no legal support for Plaintiff's theory

that a hospital has an independent duty to verify information

medical product information provided by manufacturers. See

Friedman v. Merck & Co., 107 Cal. App. 4th 454, 477 (2003) (to

state negligent misrepresentation, "plaintiff must allege

facts establishing that defendants owed him a duty to

communicate accurate information"); see also Huntman v. Danek

Medical, Inc., No. 97-2155-IEG RBB, 1998 WL 663362, at *5

(S.D. Cal. Jul. 24, 1998).

Second, Plaintiff's FAC fails to satisfy at least two

of the five requisite elements for negligent

misrepresentation: CPMC did not make any representation to

Plaintiff; and to the extent the FAC contends that Plaintiff's

doctors, in their (untenable) capacity as CPMC's agents, made

such misrepresentations, their representations did not impose

a nonexistent duty on CPMC to verify the information provided

by Bard. [FAC at 22:7-12.] Also, Plaintiff has not alleged any

fact to support CPMC's or the doctors' intent to deceive the

Plaintiff. Accordingly, the Seventh cause of action should be

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

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dismissed as to CPMC. At the least, Plaintiff should be

ordered to amend the FAC to meet the heightened pleading

requirements.

4. The Eighth Cause of Action for Breach of Fiduciary

Duty Fails as to CPMC and Is Uncertain

The Eighth Cause of Action, for breach of fiduciary

duty, suffers from the same deficiencies as the Second Cause

of Action for Negligence, as both are improperly premised on

CPMC's failure to advise the Plaintiff of the 2010 FDA

warning. [FAC at 24:18-24.] As discussed above, this claim

fails to allege a claim upon which relief can be granted: It

is established that a hospital does not owe a fiduciary duty

of care to patients; and it is established that a hospital may

not interfere with the patient-physician relationship by

giving treatment-related advice. See Derrick, supra, 47

Cal.App.3d at 154. Moreover, Plaintiff's bald allegation that

CPMC received a warning from the FDA concerning the BRF is not

at all factually supported, and his allegation that CPMC

received warning information from Bard is contradicted by his

allegation that Bard fraudulently withheld such information

from the public. Bell Atlantic, supra, 550 U.S. at 555. 

Accordingly, this claim should be dismissed.

However, if the Court is not inclined to grant CPMC's

motion to dismiss, CPMC requests that Plaintiff be ordered to

amend the FAC to specify which duty of care CPMC violated.

5. The Ninth Cause of Action for NegligenceRecall/Retrofit Fails as to CPMC and Is Uncertain

Yet again, for the reasons stated above, the Ninth

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

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Cause of Action lacks merit and is fatally uncertain, since it

relies on the claim that CPMC failed to advise plaintiff of

the FDA "warning letter" issued to treaters. [FAC at 25:17-

22.] 

In addition, the Ninth Cause of Action is invalid since

it alleges that CPMC should "have recalled the BRF." [FAC, at

25:25.] There is no legal or factual basis to impose a duty to

recall the BRF on CPMC, a hospital that did not manufacture

the product. Conveniently, the FAC fails to address the issue

of duty as to CPMC. Such "vague, conclusory allegation avails

plaintiff nothing . . . . Mere general assertions by way of

conclusion or those indefinite in character, such as here

presented, cannot be deemed sufficient compliance with the

long-established rules of pleading." Derrick, supra, 47

Cal.App.3d at 153. 

There is no common-law duty in California to recall a

medical device unless the FDA requires such recall. As the

California Supreme Court held in Ramirez v. Plough, Inc., 6

Cal.4th 539, 556 (1993), unless a regulatory agency orders a

recall, there cannot be liability for failing to take that

action independently. Here, the FAC does not allege any recall

by the FDA. Hence, none of the defendants, let alone CPMC, had

any duty to recall the BRF.

Since the Ninth Cause of Action does not address the

issue of duty, it cannot properly plead breach of such

nonexistent duty. The Ninth Cause of Action therefore fails to

state facts sufficient to constitute any claim for relief

against CPMC.

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC 13

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6. Plaintiff's Punitive Damages Claim Is Improper as

to CPMC and Should Be Dismissed

Plaintiff's punitive damages claim should be dismissed

under Rule 12(b)(6) since it is legally invalid and factually

devoid. 

First, Plaintiff has failed to comply with California

Code of Civil Procedure section 425.13, which requires that he

first seek and obtain leave of Court before he may assert any

claim for punitive damages against CPMC. Plaintiff has never

sought or obtained such an order. [Youngblood Decl., ¶5.] Due

to this failure, plaintiff is barred from seeking punitive

damages against CPMC.2/

Even ignoring this fatal failure under section 425.13,

Plaintiff's FAC fails to meet the heightened pleading

requirements to allege exemplary damages under California

Civil Code section 3294(a). Instead, Plaintiff's claim is

based solely on a conclusory allegation of fraud and malice on

the part of the CPMC corporate entity, without any basis for

such allegation. [FAC at pp. 26-27.]

Under California law, the "oppression, fraud, or

malice" which is a prerequisite for exemplary damages must be

plead by "clear and convincing evidence." Cal. Civ. Code §

3294(a). Specific facts must be pled to support such a

finding, and a mere conclusory characterization of defendant's

2/ There is a conflict between the District Courts of the Ninth

Circuit as to application of California Civil Procedure section

425.13 in Federal Court. See Estate of Prasad v. County of

Sutter, 958 F.Supp.2d 1101, 1108-1121 (E.D. Cal. 2013). 

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

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conduct as intentionally fraudulent is patently insufficient.

Brousseau v. Jarrett, 73 Cal.App. 3d 864, 872 (1977). The

allegations must set forth facts demonstrating a willful and

conscious disregard of the rights and safety of others. Taylor

v. Superior Court, 24 Cal.3d 890, 894-895 (1979). Furthermore,

a request for punitive damages against a corporation must be

based on the malice of its officers, directors or managing

agents. Lack of such allegation is ground to strike a request

for punitive damages. Xerox Corp. v. Far Western Graphics,

Inc., No. C-03-4059-JFPVT, 2004 WL 2271587, at *2 (N.D.Cal.

2004).

Here, the FAC fails to allege any specific facts to

support the allegation of fraud or malice as to CPMC, let

alone any support by clear and convincing evidence that the

intent of CPMC's managing officers was malicious. Therefore,

under Rule 12(b)(6), Plaintiff's punitive damages claim should

be dismissed without leave to amend. 

7. The Gravamen of the FAC Is Products Liability

In the end, this is a product liability action against

a manufacturer based on the product's failed performance.

Under California law, a hospital may not be liable under a

product liability theory for a defective device such as the

BRF.

In Silverhart v. Mount Zion Hospital, 20 Cal.App.3d

1022 (1971), the plaintiff sought to apply the doctrine of

products liability to a hospital that furnished a defective

needle which caused her injury. Plaintiff's theory was that

the hospital was a "supplier" of the product and was therefore

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

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subject to the same standard of liability as any other

supplier of products. The court soundly dismissed this

argument, noting that a hospital's business is to provide

medical services, not sell products. Id. at 1027.

The holding in Silverhart has been consistently

approved and relied on over the years. For example, in Hector

v. Cedars-Sinai Medical Center, 180 Cal.App.3d 493, 505

(1986), the court found that defendant Hospital could not be

found strictly liable for its provision of a defective

pacemaker to plaintiff, because the Hospital was more properly

viewed as a provider of medical services, and not as the

seller of the product. Similarly, in Pierson v. Sharp Memorial

Hospital, Inc., 216 Cal.App.3d 340, 346-347 (1989), the

defendant hospital was absolved of liability for an allegedly

defective carpet, since the hospital was the provider of

medical services rather than a producer and marketer of

products. 

Here, plaintiff cannot state facts sufficient to

constitute a claim for negligence under a theory of product

liability against defendant CPMC. CPMC's role was limited to

providing medical services to plaintiff. It did not

participate in the manufacture or retail of the BRF, nor does

plaintiff allege as much. CPMC therefore requests that the

Court dismiss plaintiff's FAC against CPMC, since the sole

nexus between plaintiff and CPMC is that the BRF was placed at

the Hospital, which is insufficient to attribute liability to

a Hospital for failure of a medical device.

//

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC 16

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B. ALTERNATE MOTION TO REMAND TO STATE COURT

Plaintiff named CPMC in an attempt to avoid federal

multidistrict litigation. However, plaintiff has no viable

claim against CPMC. Thus, CPMC is a sham defendant, improperly

joined in the litigation for the purpose of defeating federal

jurisdiction. McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339

(9th Cir. 1987). CPMC should therefore be dismissed from this

action and enable the federal court to retain jurisdiction. 

However, if the Court finds that plaintiff is not

simply forum shopping by naming a California corporation as a

defendant, then CPMC requests that the Court remand the action

to state court for lack of subject-matter jurisdiction under

Rule 12(b)(1). 

IV. CONCLUSION

CPMC does not belong in this action or in this Court. 

Plaintiff's FAC fails to state any claim upon which

relief can be granted against CPMC. Therefore, CPMC's motion

to dismiss the Second, Seventh, Eighth and Ninth Causes of

Action and the claim for punitive damages under Rule 12(b)(6)

should be granted without leave to amend; or, at a minimum,

defendant's 12(e) motion for a more definite statement should

be granted. In the alternative, CPMC asks the Court to remand

this action to state court for lack of federal subject-matter

jurisdiction.

DATED: February 19, 2016. DAVIDOVITZ + BENNETT

By: /s/

HILARY E. YOUNGBLOOD

Attorneys for Defendant, 

SUTTER WEST BAY HOSPITALS,

doing business as CALIFORNIA

PACIFIC MEDICAL CENTER

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC 17

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the date below, I

electronically filed the foregoing NOTICE OF DEFENDANT

CALIFORNIA PACIFIC MEDICAL CENTER'S MOTION AND MOTION TO

DISMISS UNDER FED.R.CIV.P. 12(b)(6) AND 12(e); OR IN THE

ALTERNATIVE FOR MOTION TO REMAND UNDER 28 U.S.C. § 1447(c) AND

FED.R.CIV.P. 12(b)(1) WITH SUPPORTING MEMORANDUM; DECLARATION

OF HILARY E. YOUNGBLOOD; and PROPOSED ORDER with the Clerk of

the Court by using the CM/ECF system which will send

notification of such filing to all counsel of record in this

action.

Dated this 19th day of February, 2016.

s/ Hilary E. Youngblood

Davidovitz + Bennett

Attorneys for Defendant, 

SUTTER WEST BAY HOSPITALS, 

doing business as CALIFORNIA 

PACIFIC MEDICAL CENTER

DEFENDANT CPMC'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

CASE NO. 2:15-md-02641-DGC

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