Opinion
EDCV 21-481 JGB (KKx)
10-01-2021
Patriece DAVIS, individually and on behalf of the Estate of Kairo Anderson v. ABBOTT LABS
John H. Gomez, Deborah S. Dixon, Gomez Trial Attorneys, San Diego, CA, for Patriece Davis. Carol Alexis Chen, Aaron Chase O'Dell, Winston and Strawn LLP, Caroline Drew Murray, Celeste M. Brecht, Jones Day, Los Angeles, CA, Bryce A. Cooper, Pro Hac Vice, Stephen V. D'Amore, Pro Hac Vice, Winston and Strawn LLP, Chicago, IL, for Abbott Laboratories, Inc.
John H. Gomez, Deborah S. Dixon, Gomez Trial Attorneys, San Diego, CA, for Patriece Davis.
Carol Alexis Chen, Aaron Chase O'Dell, Winston and Strawn LLP, Caroline Drew Murray, Celeste M. Brecht, Jones Day, Los Angeles, CA, Bryce A. Cooper, Pro Hac Vice, Stephen V. D'Amore, Pro Hac Vice, Winston and Strawn LLP, Chicago, IL, for Abbott Laboratories, Inc.
Proceedings: Order (1) GRANTING Defendant's Motion to Dismiss as to Claims IV and V (Dkt. No. 22); and (2) VACATING the October 4, 2021 Hearing (IN CHAMBERS)
JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE
Before the Court is a Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(6) filed by Defendant Abbott Laboratories, Inc. ("Motion," Dkt. No. 22.) The Court determines this matter is appropriate for resolution without a hearing. See Fed. R. Civ. P. 78 ; L.R. 7-15. After considering all papers filed in support of and in opposition to the Motion, the Court GRANTS Defendant's Motion to Dismiss as to Claims IV and V, the challenged claims remaining after Defendant's Notice of Partial Withdrawal of Motion to Dismiss. ("Partial Withdrawal," Dkt. No. 29.) Plaintiff's Claims IV and V are DISMISSED with LEAVE TO AMEND. The October 4, 2021 hearing is VACATED.
I. BACKGROUND
On March 18, 2021, Plaintiff Patriece Davis on behalf of herself and the estate of Kairo Anderson, filed a complaint against Defendant Abbott Laboratories, Inc. ("Complaint," Dkt. No. 1.) On May 26, 2021, Plaintiff filed a First Amended Complaint ("FAC") as of right. ("FAC," Dkt. No. 18.) The FAC alleges five causes of action: (1) failure to warn; (2) design defect under a strict liability theory; (3) negligence; (4) breach of implied warranty; (5) negligent misrepresentation. (See FAC.)
On August 3, 2021, Defendant filed this Motion. (Dkt. No. 22.) Plaintiff filed its Opposition on September 7, 2021, and requested judicial notice of three court orders:
(1) Sanchez v. Abbott Laboratories, Inc., et al., 2:20-CV-01436-TLN-AC, 2021 WL 2679057 (E.D. Cal. June 30, 2021) ;
(2) Ferry v. Mead Johnson & Co., LLC., No. 3:20-cv-99 , 2021 WL 243119 (D. Conn. Jan. 25, 2021); and
(3) Hunte v. Abott Laboratories, Inc., 3:20-CV-1626 (SRU) (D. Conn. Aug. 19, 2021).
"A court shall take judicial notice if requested by a party and supplied with the necessary information." Fed. R. Evid. 201(d). An adjudicative fact may be judicially noticed if it 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). Courts routinely take judicial notice of filings of related cases. See, e.g., Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). The records to be judicially noticed are attributed to Plaintiff's Opp. to Defendant's now withdrawn preemption argument. Although the parties have deferred the preemption argument to a later stage in the proceedings, the Court GRANTS the RJN.
("Opp."; "RJN," Dkt. No. 25-3.) Defendant partially withdrew its Motion as to Claims 1 and 2 (failure to warn and design defect). ("Partial Withdrawal," Dkt. No. 29.) Defendant replied on September 20, 2021. ("Reply," Dkt. No. 30.)
II. FACTUAL ALLEGATIONS
Plaintiff alleges the following facts, which are assumed to be true for purposes of this Rule 12(b)(6) Motion. Abbott Laboratories, Inc. ("Defendant") is responsible for the development, manufacturing, packaging, advertising, distribution, and sale of Similac preterm and infant formula and fortifier products. (FAC. ¶ 5.)
Plaintiff Patriece Davis ("Plaintiff") resides in San Bernadino County, California, and gave birth to Kairo Anderson ("Baby Anderson") at Pomona Valley Hospital Medical Center in Pomona, California, on February 18, 2019. (Id. ¶¶ 1-2.) Baby Anderson was born premature at 24 weeks old and was extremely low weight at 1 pound, 3 ounces. (Id. ¶ 9.) He was admitted to the Neonatal Intensive Care Unit ("NICU"). (Id. ¶ 10.) In the NICU, Baby Anderson was intravenously fed human milk and Similac Human Milk Fortifier ("HMF"). (Id. ¶ 11.) Baby Anderson developed necrotizing enterocolitis in the NICU and passed away on March 20, 2019. (Id. ¶ 12.)
Necrotizing enterocolitis is a condition most often presented in preterm infants. (Id. ¶ 24.) The cause of necrotizing enterocolitis is not yet known. (Id. ¶ 23.) But cow milk-based infant formulas are associated with increased risks of NEC. (Id. ¶ 24.) Breast milk (human milk) is associated with decreased risks of NEC. (Id. ¶ 23.) Plaintiff alleges that Defendant's cow milk-based products triggered NEC which caused Baby Anderson's death. (Id. ¶ 54.)
III. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6) (" Rule 12(b)(6)"), a party may bring a motion to dismiss for failure to state a claim upon which relief can be granted. Rule 12(b)(6) must be read in conjunction with Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that a 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; see Horosny v. Burlington Coat Factory, Inc., No. 15-05005, 2015 WL 12532178, at *3 (C.D. Cal. Oct. 26, 2015). When evaluating a Rule 12(b)(6) motion, a court must accept all material allegations in the complaint — as well as any reasonable inferences to be drawn from them — as true and construe them in the light most favorable to the non-moving party. See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005) ; ARC Ecology v. U.S. Dep't of Air Force, 411 F.3d 1092, 1096 (9th Cir. 2005) ; Moyo v. Gomez, 32 F.3d 1382, 1384 (9th Cir. 1994).
"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 ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted). Rather, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id.
To survive a motion to dismiss, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ; Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "The 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.’ " Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). The Ninth Circuit has clarified that (1) a complaint must "contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively," and (2) "the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
IV. DISCUSSION
Defendant argues that Claims IV (breach of implied warranty of merchantability) and V (negligent misrepresentation) should be dismissed under Rule 12(b)(6) for failure to state a claim. (Motion).
A. Breach of Implied Warranty of Merchantability
Under California law, "a warranty that the goods shall be merchantable is implied in a contract for their sale." Cal. Com. Code section 2314(1). California recognizes an exception to the privity requirement in breach of warranty claims pertaining to food or drug products. Wendell v. Johnson & Johnson, 2010 WL 271423, at *5 (N.D. Cal. Jan 20, 2010) (citing Gottsdanker v. Cutter Labs., 182 Cal.App.2d 602, 6 Cal.Rptr. 320 (1960) ). The California Supreme Court has explained that "[m]erchantability has several meanings, two of which are relevant to the instant case: the product must ‘[conform] to the promises or affirmations of fact made on the container or label,’ and must be ‘fit for the ordinary purposes for which such goods are used.’ " Hauter v. Zogarts, 14 Cal. 3d 104, 117, 120 Cal.Rptr. 681, 534 P.2d 377 (1975).
Plaintiff argues that HMF does not conform to the promises or affirmations of fact made on the container or label because Defendant falsely stated that (1) its product was similar or equivalent to human milk; (2) that it was necessary for growth, and (3) it was safe and effective for use by premature infants. (Opp. 16.) But the FAC only speaks to HMF's labeling in the context of warnings and instructions. (FAC ¶ 32). There are no allegations about HMF's labeling or packaging that would rise to the level of a "promise" or "affirmation of fact" relied on by the Plaintiff. "Direct to consumer advertising" is repeatedly alleged, but that does not satisfy the element of the merchantability claim—that the promises or affirmations were represented to the Plaintiff via the container or label. Evaluating the allegations in the light most favorable to Plaintiff, her breach of implied warranty claim is implausible. The FAC includes part of the HMF product label which states "this product is nutritionally incomplete by itself and is designed to be added to human breast milk." (FAC ¶ 32). Contrary to Plaintiff's allegations, this strongly suggests that Defendant did not implicitly warrant that its product was similar or equivalent to human milk. And there are no allegations supporting an inference that Plaintiff chose Defendant's product to be fed to her son because it was advertised to be as good as human milk, since the FAC itself alleges that the child was fed human milk. Further, the allegations about HMF labeling fail to mention any kind affirmative statement that would suggest to a consumer that the product was "necessary for growth." The only allegation that could potentially satisfy the element of this claim is that through the product's instructions, Defendant implicitly warranted that its products were safe based upon current data and science. But this claim fails when considering that the instructions emphasized exercising caution and dispensing the product under medical supervision, which indicates it was not suitable for ordinary uses. (FAC ¶ 32).
Even if the "direct to consumer" advertising were to satisfy this element, Plaintiff still failed to make the allegations specific to HMF. The advertising was broadly attributed to Defendant's preterm and infant feeding product line, which includes both formulas and fortifiers. Baby Anderson was fed human milk and human milk fortifier, not formula. (Id. ¶ 11.) A generalized representation would not suffice here.
The Court GRANTS Defendant's Motion to Dismiss the breach of implied warranty of merchantability claim (Claim IV) and DISMISSES Plaintiff's Claim IV (breach of implied warranty of merchantability) WITH LEAVE TO AMEND.
B. Negligent Misrepresentation
To state an intentional misrepresentation claim in California, Plaintiff must allege the following: (1) misrepresentation, (for example, false representation, concealment, or nondisclosure); (2) knowledge of falsity, or scienter; (3) intent to defraud, (that is, to induce reliance); (4) justifiable reliance; and (5) resulting damage. Miller v. Ghirardelli Chocolate Co., 912 F. Supp. 2d 861 (N.D. Cal. 2012). To state a negligent representation claim, the same elements are applicable, but rather than "knowledge of falsity, or scienter," Plaintiff need only allege that Defendant did not have "reasonable ground for believing it to be true." Wells Fargo Bank, N.A. v. FSI, Fin. Solutions, Inc., 196 Cal. App. 4th 1559, 1573, 127 Cal.Rptr.3d 589 (2011) (citation and internal quotation marks omitted). Because negligent misrepresentation sounds in fraud, a plaintiff must meet the pleading requirements of Federal Rule of Civil Procedure 9(b). See Monreal v. GMAC Mort., LLC, 948 F. Supp. 2d 1069, 1077-78 (S.D. Cal. 2013) ; United States ex rel. Ruhe v. Masimo Corp., 929 F. Supp. 2d 1033, 1036 (C.D. Cal. 2012).
There are no allegations in the FAC that indicate Plaintiff relied on any of Defendant's alleged misrepresentations. HMF would have been administered by Baby Anderson's physician in the NICU, and no allegations suggest that Plaintiff specifically chose HMF to be administered to her son after relying on Defendant's representation that HMF was safe. The factual allegations do not plausibly suggest that Plaintiff relied on anything other than the doctor's judgment and assessment that HMF was a proper supplement for Baby Anderson at the time he was admitted to the NICU. If Plaintiff relied on the NICU physician to administer the HMF while Baby Anderson was in the hospital, it is unclear how Plaintiff could rely on any representations made by Defendant.
Accordingly, The Court GRANTS Defendant's Motion to Dismiss the negligent misrepresentation claim (Claim V) and DISMISSES Plaintiff's Claim V (breach of negligent misrepresentation) WITH LEAVE TO AMEND.
V. CONCLUSION
For the reasons above, the Court GRANTS Defendant's Motion as to Claims IV (implied breach of warranty of merchantability) and V (negligent misrepresentation). The Court DISMISSES Plaintiff's Claim IV (implied breach of warranty of merchantability) WITH LEAVE TO AMEND, and DISMISSES Plaintiff's Claim V (negligent misrepresentation) WITH LEAVE TO AMEND. Plaintiff must file an amended complaint, if any, by November 1, 2021. The October 4, 2021 hearing is VACATED.