United States District Court, D. Nevada
RYAN Q. CLARIDGE, Plaintiff,
I-FLOW CORPORATION, et al., Defendants.
M. NAVARRO, CHIEF JUDGE
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).
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).
reasons discussed herein, Stryker and I-Flow's
(collectively “Defendants'”) Motions to
Dismiss are GRANTED in part and
DENIED in part.
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).
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).
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).
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. ¶
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).
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.
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.
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.”
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