United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANT'S MOTION TO DISMISS
B. Leighton United States District Judge
MATTER is before the Court on Defendant Biomet Inc., et.
al.'s Motion to Dismiss Plaintiff Abigail Cutter's
Second Amended Complaint. [Dkt. #164 & #167]. Cutter
suffers from an allegedly defective artificial hip system
manufactured and distributed by Biomet, which consists of 4
interrelated companies. Cutter asserts claims for strict
products liability, negligence, and violations of the
Washington Consumer Protection Act. She also seeks punitive
damages. Biomet contends her common law products liability
and negligence claims are preempted by the Washington
Products Liability Act, and that she has not stated a legally
cognizable claim. It also argues that punitive damages are
not available under Washington law.
following reasons, Biomet's Motion to Dismiss is GRANTED,
but Cutter is granted leave to amend her complaint to assert
a WPLA claim in place of her pre-empted, common law strict
products liability and negligence claims. Cutter's
punitive damages claim is DISMISSED with prejudice and
without leave to amend.
Dismissal under Fed.R.Civ.P. 12(b)(6) may be based on either
the lack of a cognizable legal theory or the absence of
sufficient facts alleged under a cognizable legal theory.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A plaintiff's complaint must
allege facts to state a claim for relief that is plausible on
its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A claim has “facial plausibility” when
the party seeking relief “pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. “No technical form is required” for
pleading, Fed.R.Civ.P. 8(d)(1), as the purpose of the
complaint is to “give the defendant fair notice of the
factual basis of the claim.” Skaff v. Meridien N.
Am. Beverly Hills, LLC, 506 F.3d 832, 841 (9th Cir.
12(b)(6) motion, “a district court should grant leave
to amend even if no request to amend the pleading was made,
unless it determines that the pleading could not possibly be
cured by the allegation of other facts.” Cook,
Perkiss & Liehe v. N. Cal. Collection Serv., 911
F.2d 242, 247 (9th Cir. 1990). However, where the facts are
not in dispute, and the sole issue is whether there is
liability as a matter of substantive law, the court may deny
leave to amend. Albrecht v. Lund, 845 F.2d 193,
195-96 (9th Cir. 1988).
Strict Products Liability and Negligence Claims
argues that Cutter's common law strict products liability
and negligence claims are pre-empted by the WPLA. Cutter
argues (and demonstrates) that her complaint alleges facts
sufficient to state a claim under the WPLA.
WPLA is an “exclusive remedy for product liability
claims, ” preempting all product-related common law
claims except fraud. McFarland v. APP Pharmaceuticals,
LLC, 2011 WL 2413767 at *2 (W.D. Wash. June 13, 2011);
see Washington Water Power Co. v. Graybar Elec. Co.,
112 Wash.2d 847, 850-51 (Wash. 1989) (finding no doubt of the
WPLA's preemptive purpose and broad scope). The WPLA
states that a manufacturer is strictly liable for damage
“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.” Wash. Rev. Code Ann. § 7.72.030(2)(a)
(West). It also holds manufacturers liable for damage
“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…where a manufacturer
learned or a reasonably prudent manufacturer should have
learned about a danger connected with the product.”
Wash. Rev. Code Ann. § 7.72.030(1)(a)-(c) (West).
repeatedly alleges and provides numerous examples supporting
her claim that Biomet's hip system “was
in…unreasonably dangerous condition, ”
“was not reasonably safe for intended use, ” and
“was not accompanied by adequate instructions and/or
warnings to fully inform Plaintiff and her physicians of the
full nature or extent of the risks associated with its
use.” She also claims that this danger was fully due to
Biomet's “conscious disregard of the foreseeable
harm” and its “maliciously, recklessly and/or
negligently made misrepresentations.” [Dkt. # 167].
These alleged facts are practically identical to those
required by the WPLA. Though Cutter's complaint does not
cite the correct authority, this defect is not fatal.
Dismissal without leave to amend is only appropriate if
“the pleading could not possibly be cured by the
allegation of other facts.” Cook, Perkiss &
Liehe, 911 F.2d 242 at 247. As Cutter pled facts
sufficient under the WPLA, labelling her claims correctly
will easily save her complaint. Defendant's Motion to
Dismiss Plaintiff's strict products liability and
negligence claims is GRANTED, but Cutter is granted leave to
file an amended complaint articulating that her claims are
under the WPLA. She should do so within 14 days.
asks the Court to dismiss Cutter's claim for punitive
damages because Washington law does not permit such damages.
Cutter provides no response, and Biomet's argument is
correct. Washington law does not allow for punitive damages
except where expressly authorized by statute. Dailey v.
N. Coast Life Ins. Co., 129 Wash.2d 572, 575 (1996);
see, e.g., Baughn v. Johnson & Johnson,
No. C15-5283 BHS, 2015 WL 4759151, at *2 (W.D. Wash. Aug. 12,
2015); Spokane Truck & Dray Co. v. Hoefer, 25 P.
1072 (1891). The WPLA does not authorize punitive damages.