United States District Court, D. Nevada
PAUL REED and ELENA GOLOVINA-REED, individually and as husband and wife, Plaintiffs,
ARTHREX, INC., a foreign corporation; and JOHN DOES I - XX, inclusive, Defendants.
R. HICKS, UNITED STATES DISTRICT JUDGE.
Arthrex, Inc. moved to dismiss several claims in this
product-liability case. ECF No. 7. Plaintiffs Paul Reed and
Elena Golovina-Reed opposed the motion. ECF No. 13. Arthrex
filed a reply. ECF No. 16. After considering the parties'
arguments, the court denies Arthrex's motion as to the
claims for strict product liability and breach of the implied
warranty of merchantability. However, the court grants
Arthrex's motion as to the claims for breach of express
warranties and fraudulent misrepresentation.
Reed received treatment for a deformity on one of his left
toes. ECF No. 1 at Ex. 1 ¶ V. The treatment entailed the
placement of an internal-fixation plate across a joint in his
deformed toe. Id. The plate should have prevented
excessive motion in the toe joint. Id. ¶ VI.
But the plate fractured only 120 days after it was implanted,
requiring Mr. Reed to undergo surgery to remove it.
Id. ¶¶ V, VI. After surgery, Mr. Reed
received the diagnosis of “left 1st
metatarso-phalangeal joint fusion nonunion with broken
internal fixation;” his toe was still deformed due to
excessive motion in the toe joint, which prevented
unionization of the joint. Id. While an
internal-fixation plate will not “last forever, ”
the plate here should not have fractured and required removal
so soon. Id. ¶ VI.
result of the alleged premature fracture in the plate, the
Reeds filed this action in the Second Judicial District Court
for Washoe County, Nevada in May 2017. See ECF No. 1
at Ex. I. The Reeds collectively allege (1) negligence, (2)
strict product liability, (3) breach of express and implied
warranties, including the implied warranty of fitness for a
particular purpose, (4) misrepresentation, and (5) loss of
consortium. Id. ¶¶ VII-X, XII. After
additional briefing in regards to the amount in controversy,
Arthrex successfully removed the action to this court. ECF
Nos. 1, 4, 12, 14, 17. Arthrex then moved to dismiss the
claims for strict product liability, breach of express and
implied warranties, and misrepresentation. ECF No. 7. The
Reeds opposed the motion, and Arthrex filed a reply. ECF Nos.
may seek the dismissal of a complaint under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a legally
cognizable cause of action. See Fed. R. Civ. P.
12(b)(6) (stating that a party may file a motion to dismiss
for “failure to state a claim upon which relief can be
granted[.]”). To survive a motion to dismiss for
failure to state a claim, a complaint must satisfy the notice
pleading standard of Rule 8(a)(2). See Mendiondo v.
Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir.
2008). Under Rule 8(a)(2), a complaint must contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
Rule 8(a)(2) does not require detailed factual allegations;
however, a pleading that offers only “‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action'” is insufficient and
fails to meet this broad pleading standard. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
sufficiently allege a claim under Rule 8(a)(2)-viewed within
the context of a Rule 12(b)(6) motion to dismiss-a complaint
must “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. (quoting Twombly,
550 U.S. at 570). A claim has facial plausibility when the
pleaded factual content allows the court to draw the
reasonable inference, based on the court's judicial
experience and common sense, that the defendant is liable for
the alleged misconduct. See Id. at 678-679 (stating
that “[t]he plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to
relief.”) (internal quotation marks and citations
omitted). Further, in reviewing a motion to dismiss, the
court accepts the factual allegations in the complaint as
true. Id. However, bare assertions in a complaint
amounting “to nothing more than a formulaic recitation
of the elements of a . . . claim . . . are not entitled to an
assumption of truth.” Moss v. U.S. Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting
Iqbal, 556 U.S. at 698) (internal quotation marks
omitted). The court discounts these allegations because
“they do nothing more than state a legal conclusion-
even if that conclusion is cast in the form of a factual
allegation.” Id. “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.” Id.
moves to dismiss the following claims: (1) strict product
liability; (2) breach of express and implied warranties; (3)
misrepresentation. The court considers the parties'
arguments regarding each claim in turn.
Strict Product Liability
first moves to dismiss the Reed's
strict-product-liability claim, arguing the complaint lacks
sufficient factual allegations and contains contradicting
allegations. ECF No. 7 at 5-8. The Reeds respond, asserting
the complaint adequately alleges that the device failed and
that it is unfit and unreasonably dangerous as shown by its
premature fracturing. ECF No. 13 at 3-4. Alternatively, the
Reeds request leave to amend their claim. Id. at 4.
bring a claim for strict product liability in Nevada, a
plaintiff must “demonstrate that (1) the product at
issue was defective, (2) the defect existed at the time the
product left the manufacturer, and (3) the defect caused the
plaintiff's injury.” Ford Motor Co. v.
Trejo, No. 67843, 2017 WL 4294559, at *4 (Nev. Sept. 27,
2017) (citing Shoshone Coca-Cola Bottling Co. v.
Dolinski, 420 P.2d 855, 858 (Nev. 1966)). A plaintiff
may bring a strict-product-liability claim on the theory of
defect by failure to warn, defect by design, or defect by
manufacturing. Id. Regardless of the chosen theory,
the plaintiff must show the product was defective by
satisfying the consumer-expectation test. Id. at *4.
Under this test, “a plaintiff must demonstrate that a
product ‘failed to perform in the manner reasonably
expected in light of its nature and intended function and
[is] more dangerous than would be contemplated by the
ordinary user having the ordinary knowledge available in the
community.'” Id. at *3 (quoting Ginnis
v. Mapes Hotel Corp., 470 P.2d 135, 138 (Nev. 1970)).
“Such a condition is, in the words of the Restatement
(Second) of Torts, Section 402A(1) (1965),
‘unreasonably dangerous.'” Stackiewicz v.
Nissan Motor Corp. in U.S.A., 686 P.2d 925, 928 (Nev.
1984). “[A]n unexpected, dangerous malfunction may
suffice to establish a prima facie case for the plaintiff of
the existence of a product defect, ” and “a
specific defect in the product is not an essential element in
establishing a cause of action, since in the field of
products liability the focus is on the product and not
necessarily its components.” Id. (internal
quotation marks and citation omitted). “When there is
evidence of some dangerous condition, the factfinder can
find, where other identifiable causes are absent, that the
mere evidence of a malfunction is sufficient evidence of a
defect.” Id.; see also Krause Inc. v. Little,
34 P.3d 566, 572 (2001) (stating that “direct proof of
the malfunction's cause is unnecessary; the
circumstantial evidence of the malfunction can prove a
the Reeds assert a strict-product-liability claim under the
theories of design defect and manufacturing defect. ECF No. 1
at Ex 1 ¶ VIII. Both theories require the Reeds to
satisfy the consumer-expectation test and, contrary to
Arthrex's argument, neither theory requires the Reeds to
identify a specific defect. Here, the Reeds allege that the
plate was placed internally across Mr. Reed's toe joint
but then fractured only 120 days later. It is reasonable to
infer that the plate was defective; the plate should have
remained intact for the time necessary for Mr. Reed's
deformed toe to heal-or in any event, longer than 120 days.
The plate instead fractured prematurely. The plate therefore
failed to operate in a manner reasonably expected given its
intended function: to prevent joint mobility for the time
necessary for Mr. Reed's toe to heal. The alleged defect
prevented Mr. Reed's toe from healing by allowing excess