United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION TO DISMISS
L. ROBART United States District Judge
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,  the court GRANTS the motion
to dismiss with leave to amend.
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.)
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. (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
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).
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.
Washington Product Liability Act
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
Failure to Warn and Breach of Warranty
complaint contains no allegations regarding either a failure
to warn claim 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.
. . . ...