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Staub v. Zimmer, Inc.

United States District Court, W.D. Washington, Seattle

June 9, 2017

MICHAEL ALLEN STAUB, Plaintiff,
v.
ZIMMER, INC., Defendant.

          ORDER GRANTING MOTION TO DISMISS

          JAMES L. ROBART United States District Judge

         I. INTRODUCTION

         Before the court is Defendant Zimmer, Inc.'s (“Zimmer”) Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim. (Mot. (Dkt. # 10).) The court has considered the parties' submissions, the relevant portions of the record, and the applicable law. Being fully advised, [1] the court GRANTS the motion to dismiss with leave to amend.

         II. BACKGROUND

         On December 30, 2016, Plaintiff Michael A. Staub filed a state court product liability action against Zimmer. (See Compl. (Dkt. # 3-1).) Mr. Staub alleges that he “underwent hip arthroplasty” on December 4, 2013. (Id. ¶ 3.) He further alleges that his surgeon implanted Zimmer's product, an “ML Taper, ” at the time of surgery. (See Id. ¶ 4.) Mr. Staub contends that the ML Taper is “defective and unreasonably dangerous as defined by applicable Washington law” and that Zimmer has recalled the product. (Id. ¶¶ 5-6.) He also asserts that he “was required to undergo revision surgery” due to the defective nature of the ML Taper. (Id. ¶ 7.) Finally, Mr. Staub states that he suffered general and special damages “[a]s a direct and proximate result of the defective nature of [Zimmer's] product.” (Id. ¶ 8.)

         Zimmer removed the action to this court on April 3, 2017. (See Not. of Rem. (Dkt. # 1, as amended by Dkt. # 3).) On April 4, 2017, Zimmer filed a motion to dismiss the action for failure to state a claim. (See Mot.) Zimmer noted its motion for the court's consideration on May 5, 2017. (Id. at 1.) Under the Local Rules for the Western District of Washington, Mr. Staub's opposition papers were due on Monday, May 1, 2017. See Local Rules W.D. Wash. CR 7(d)(3) (“Any opposition papers shall be filed and served not later than the Monday before the noting date.”). Zimmer filed a reply memorandum on May 5, 2017, noting Mr. Staub's failure to timely respond to the motion to dismiss. (See Reply (Dkt. # 12).) Later that day, Mr. Staub filed a response opposing Zimmer's motion to dismiss, but offering no excuse for his admitted lack of timeliness or his failure to move for an extension of time.[2] (See Resp. (Dkt. # 13) at 1 (“Plaintiff's counsel apologizes to the Court for his failure to timely respond to this Motion. No excuse is offered, for whatever reason, the ECF email containing Defendant's Motion was overlooked.”).)

         III. ANALYSIS

          A. Standard

         When considering a motion to dismiss under Rule 12(b)(6), the court construes the complaint in the light most favorable to the nonmoving party. Livid Holdings, Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the plaintiff. Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). “To survive a 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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court may dismiss a complaint as a matter of law if it lacks a cognizable legal theory or states insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

         The court need not accept as true a legal conclusion presented as a factual allegation. Iqbal, 556 U.S. at 678. Although Federal Rule of Civil Procedure 8 does not require “detailed factual allegations, ” it demands more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at 555). A pleading that offers only “labels and conclusions or a formulaic recitation of the elements of a cause of action” will not survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Id.

         B. Washington Product Liability Act

         The Washington Product Liability Act (“WPLA”), RCW ch. 7.72, “created a single cause of action for product-related harms and supplants previously existing common law remedies, including common law actions for negligence.” Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 858 P.2d 1054, 1067 (Wash. 1993). Under the WPLA, “[a] product manufacturer is subject to liability to a claimant if the claimant's harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided.” RCW 7.72.030(1). Further, “[a] product manufacturer is subject to strict liability to a claimant if the claimant's harm was proximately caused by the fact that the product was not reasonably safe in construction or not reasonably safe because it did not conform to the manufacturer's express warranty or to the implied warranties under Title 62A RCW.” RCW 7.72.030(2). Thus, to state a claim under the WPLA, a plaintiff must plead non-conclusory allegations that plausibly support (1) a defective design claim; (2) a failure to warn claim; (3) a defective manufacture claim; or (4) a breach of express or implied warranty claim. RCW 7.72.030; see 16A David K. DeWolf & Keller W. Allen, Wash. Prac., Tort L. & Prac. § 17:8 (4th ed. 2013). A plaintiff need not commit at the outset to one of these specific theories of liability prior to conducting discovery. See Braden v. Tornier, Inc., No. C09-5529RJB, 2009 WL 3188075, at *3 (W.D. Wash. Sept. 30, 2009). However, in order to survive a motion to dismiss the complaint must contain sufficient non-conclusory factual allegations to support at least one avenue of relief, see Lucas v. City of Visalia, 726 F.Supp.2d 1149, 1155 (E.D. Cal. 2010) (“The problem with the allegation is that it simply tracks the general elements of strict products liability and contains no pertinent factual allegations.”). The court now examines the adequacy of Mr. Staub's allegations as to each product liability claim.

         1. Failure to Warn and Breach of Warranty

         The complaint contains no allegations regarding either a failure to warn claim[3] or an express or implied breach of warranty claim. (See generally Compl.) The court “will not presume to raise a claim that plaintiff failed to allege.” Laisure-Radke v. Par Pharm., Inc., 426 F.Supp.2d 1163, 1170 (W.D. Wash. 2006) (declining to read into a plaintiff's // complaint under the WPLA a claim for breach of the implied warranty of merchantability when the plaintiff fails to allege such a claim); see Lucas, 726 F.Supp.2d at 1156, n.1 (“As the Court reads the tenth cause of action, the Court sees only a claim for manufacturing and design defects. . . . ...


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