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Claridge v. I-Flow Corp.

United States District Court, D. Nevada

August 30, 2019

RYAN Q. CLARIDGE, Plaintiff,
I-FLOW CORPORATION, et al., Defendants.



         Pending before the Court is the Motion to Dismiss, (ECF No. 16), filed by Defendants Stryker Corporation and Stryker Sales Corporation (collectively “Stryker”). Plaintiff Ryan Q. Claridge (“Plaintiff) filed a Response, (ECF No. 24), and Stryker filed a Reply, (ECF No. 31).

         Also pending before the Court is Defendant I-Flow Corporation's (“I-Flow”) Motion to Dismiss, (ECF No. 19). Plaintiff filed a Response, (ECF No. 25), and I-Flow filed a Reply, (ECF No. 29).

         For the reasons discussed herein, Stryker and I-Flow's (collectively “Defendants'”) Motions to Dismiss are GRANTED in part and DENIED in part.

         I. BACKGROUND

         This case arises from severe shoulder injuries Plaintiff sustained after being treated with “pain pumps, ” a medical device manufactured, marketed, and sold by Defendants. (Compl. ¶¶ 8-9, ECF No. 1). Pain pumps are intended to offer post-surgery pain relief by delivering a continuous dose of medication through a catheter directly into the operative site of a prior surgical procedure. (Id. ¶ 9). Pain pumps are designed to be used with common anesthetics, which the pumps release into a patient's surgical site over the course of two or more days. (Id. ¶ 10).

         Plaintiff, a former professional football player, was drafted by the New England Patriots in 2005 as a linebacker under a four-year contract. (Id. ¶ 23). After injuring his left shoulder during pre-season training, Plaintiff underwent arthroscopic surgery under the care of Dr. Randy Yee (“Dr. Yee”) at Seven Hills Surgery Center in Henderson, Nevada. (Id. ¶¶ 24-25). Following surgery, Dr. Yee inserted into Plaintiff's left shoulder an On-Q pain pump manufactured and sold by Defendant I-Flow. (Id.). For at least 48 hours, the On-Q pain pump consistently infused anesthetic medication into Plaintiff's shoulder. (Id. ¶ 26).

         Unbeknownst to Plaintiff and Dr. Yee, the On-Q pain pump killed the living chondrocytes in Plaintiff's shoulder cartilage, causing irreversible destruction to the same. (Id. 27). For the next several months, despite undergoing physical therapy, Plaintiff's shoulder condition worsened, causing him to see Dr. Yee for further treatment. (Id. ¶¶ 28- 29). In January 2006, Dr. Yee saw Plaintiff at the Southern Hills Hospital and Medical Center in Las Vegas, Nevada, during which Dr. Yee performed an exploratory arthroscopic examination. (Id. ¶ 30). Finding extensive cartilage damage, Dr. Yee removed the dead cartilage and inserted a pain pump manufactured and sold by Defendant Stryker. (Id. ¶ 31).

         Plaintiff alleges that the administration of Defendants' pain pumps destroyed Plaintiffs left shoulder, rendering him unable to play football and leaving him with permanent impairments. (Id. ¶¶ 32-33). Over ten years after using Defendants' devices, Plaintiff learned that the pain pumps killed the living cells in his shoulder cartilage, resulting in the destruction of his shoulder joint cartilage and his diagnosis with chondrolysis. (Id. ¶ 35).

         At all relevant times, Defendants allegedly represented to health care professionals and the general public that pain pumps are safe, effective, and appropriate for post-operative pain management and application in or near the shoulder joint. (Id. ¶¶ 12-13). Defendants did so, according to Plaintiff, without studying the safety impact of using pain pumps along with anesthetic medications in the joint space, and despite knowledge that the U.S. Food and Drug Administration (“FDA”) declined to approve pain pumps for orthopedic use due to safety concerns. (Id. ¶¶ 14-17). Thus, at all pertinent times, Plaintiff alleges Defendants knew or should have known that pain pumps, in conjunction with anesthetic medications in the joint space, could be toxic to shoulder joint cartilage. (Id. ¶ 15).

         Plaintiff commenced this action on August 30, 2018, bringing the following causes of action against Defendants for their respective roles in manufacturing, marketing, and selling pain pumps: (1) strict products liability; (2) negligence; (3) breach of express warranty; (4) breach of the implied warranty of merchantability; (5) breach of the implied warranty of fitness for a particular purpose; and (6) misrepresentation and fraudulent concealment. (Id. ¶¶ 36-87).

         Defendants move to dismiss Plaintiff's causes of action for breach of implied warranties and misrepresentation and fraudulent concealment, as well as Plaintiff's prayer for punitive damages. (See Stryker's Mot. to Dismiss (“MTD”), ECF No. 16); (I-Flow's MTD, ECF No. 19).


         Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, and although a court must take all factual allegations as true, legal conclusions couched as factual allegations are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         “Generally, a district court may not consider any material beyond the pleadings in a ruling on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). “However, material which is properly submitted as part of the complaint may be considered.” Id. Similarly, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in a Ruling on a Rule 12(b)(6) motion to dismiss. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). On a motion to dismiss, a court may also take judicial notice of “matters of public record.” Mack v. S. Bay Beer ...

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