Kate Nunn v. Mentor Worldwide, LLC ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATE NUNN; et al., No. 19-56391
Plaintiffs-Appellants, D.C. No.
2:19-cv-01484-AB-PLA
v.
MENTOR WORLDWIDE, LLC; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Submitted February 3, 2021**
Pasadena, California
Before: GOULD, OWENS, and VANDYKE, Circuit Judges.
Plaintiffs appeal from the district court’s judgment dismissing their action
alleging state law claims arising out of injuries they suffered after the implantation
of MemoryGel Silicone Breast Implants manufactured by Mentor Worldwide, LLC
(“Mentor”). The breast implants at issue are a Class III medical device approved
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
by the Federal Drug Administration (“FDA”) under the pre-market approval
process of the Medical Device Amendments (“MDA”) to the Food, Drug, and
Cosmetic Act (“FDCA”). We review de novo a district court’s denial of a motion
to remand. Canela v. Costco Wholesale Corp., 971 F.3d 845, 849 (9th Cir. 2020).
We review de novo a district court’s dismissal for failure to state a claim pursuant
to Federal Rule of Civil Procedure 12(b)(6), and for abuse of discretion the denial
of leave to amend. Curry v. Yelp Inc., 875 F.3d 1219, 1224 (9th Cir. 2017). As the
parties are familiar with the facts, we do not recount them here. We affirm.
1. The district court properly denied Plaintiffs’ motion to remand. The
district court properly determined that NuSil, LLC (“NuSil”) was fraudulently
joined, and therefore diversity jurisdiction existed. Fraudulent joinder may be
established “if a defendant shows that an ‘individual[] joined in the action cannot
be liable on any theory.’” Grancare, LLC v. Thrower ex. rel. Mills, 889 F.3d 543,
548 (9th Cir. 2018) (citation omitted). “Fraudulent joinder must be proven by clear
and convincing evidence.” Hamilton Materials, Inc. v. Dow Chem. Corp., 494
F.3d 1203, 1206 (9th Cir. 2007). Based on Scott Mraz’s deposition testimony and
the amended Statement of Information, Mentor showed by clear and convincing
evidence that NuSil was not involved in manufacturing or supplying the silicone
used in Mentor’s allegedly defective implants, and thus there was no possibility
Plaintiffs could recover against NuSil. See DiCola v. White Brothers Performance
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Prods., Inc., 69 Cal. Rptr. 3d 888, 897 (Ct. App. 2008). Because the district court
properly determined that NuSil was fraudulently joined, we do not reach Plaintiffs’
argument that Mentor’s removal was prohibited by 28 U.S.C. § 1441(b)(2) since
Mentor removed before Plaintiffs served NuSil.
2. The district court also properly dismissed Plaintiffs’ state law claims as
preempted by the MDA. The MDA expressly preempts state law claims unless
they are premised on a “parallel” federal requirement. See 21 U.S.C. § 360k(a);
Riegel v. Medtronic, Inc., 552 U.S. 312, 330 (2008). Even if a state law claim is
not expressly preempted by the MDA, it may be impliedly preempted. See 21
U.S.C. § 337(a); Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 352-53
(2001). Thus, to escape preemption, a state law claim must fit through a “narrow
gap”: “The plaintiff must be suing for conduct that violates the FDCA (or else his
claim is expressly preempted by § 360k(a)), but the plaintiff must not be suing
because the conduct violates the FDCA (such a claim would be impliedly
preempted under Buckman).” Perez v. Nidek Co., Ltd., 711 F.3d 1109, 1120 (9th
Cir. 2013) (citation omitted).
Plaintiffs’ failure to warn claims are primarily based on Mentor’s alleged
failure to report adverse events related to its MemoryGel Silicone Breast Implants
to the FDA. In states that recognize failure to report claims, such as California, a
manufacturer’s failure to report adverse events to the FDA can form the basis of a
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parallel claim that survives preemption. See Stengel v. Medtronic Inc., 704 F.3d
1224, 1233 (9th Cir. 2013) (en banc); Coleman v. Medtronic, Inc., 167 Cal. Rptr.
3d 300, 311-12 (Ct. App. 2014).
Here, however, Plaintiffs fail to allege actual adverse events that Mentor did
not report to the FDA. Rather, Plaintiffs speculate that if Mentor had conducted its
post-approval studies differently (e.g., increased follow-up with participants), then
Mentor would have identified additional adverse events that it would have reported
to the FDA. These conclusory and speculative allegations are insufficient to state a
parallel failure to warn claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Moreover, to the extent Plaintiffs base their failure to warn claims on
Mentor’s alleged failure to properly conduct the post-approval studies, Plaintiffs’
claims are impliedly preempted because Plaintiffs do not identify a parallel state
law duty to conduct post-approval studies. In addition, to the extent Plaintiffs
argue that Mentor failed to warn them or their doctors directly, such claims are
preempted because there are no such federal requirements. See Stengel, 704 F.3d
at 1234 (Watford, J., concurring).
For their manufacturing defect claims to survive express preemption under
the MDA, Plaintiffs must allege that Defendants “deviated from a particular pre-
market approval or other FDA requirement applicable to the Class III medical
device.” Weber v. Allergan, Inc., 940 F.3d 1106, 1112 (9th Cir. 2019). They
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“cannot simply demonstrate a defect or a malfunction and rely on res ipsa loquitur
to suggest only . . . that the thing speaks for itself.” Id. (citation and internal
quotation marks omitted).
Here, Plaintiffs fail to allege that Defendants violated a particular FDA
requirement. For example, Plaintiffs vaguely allege that Mentor’s MemoryGel
Silicone Breast Implants contained unidentified materials that differed from those
approved by the FDA. Further, Plaintiffs’ mere allegations “suggesting that [their]
particular breast implant[s] w[ere] defective do[] not show that [Defendants] failed
to comply with the FDA’s Current Good Manufacturing Practices.” Id. at 1114.
While we are sympathetic to Plaintiffs’ health problems, they have not
sufficiently alleged a state law claim that squeezes through the “narrow gap” to
escape MDA preemption. Perez, 711 F.3d at 1120 (citation omitted).
3. Finally, the district court did not abuse its discretion by dismissing
Plaintiffs’ action without leave to amend based on its determination that any
amendment would be futile. See Ebner v. Fresh, Inc., 838 F.3d 958, 968 (9th Cir.
2016).
AFFIRMED.
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