Dreifort v. DJO Global, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 DANIEL DREIFORT, individually, Case No.: 3:18-cv-02393-BTMand on behalf of all others similarly KSC [12] situated, 13 ORDER GRANTING IN PART Plaintiffs, AND DENYING IN PART [14] v. DEFENDANTS’ MOTION TO 15 DISMISS FAC DJO GLOBAL INC., DJO, LLC, 16 and DOES 1–20, [ECF NO. 15] 17 Defendants. [18] 19 Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s First 20 Amended Complaint (ECF No. 15 (“Mot. to Dismiss FAC”)). For the reasons 21 discussed below, the motion is GRANTED IN PART AND DENIED IN PART. 22 I. BACKGROUND 23 Defendants DJO Global, Inc. and DJO, LLC (collectively referred to as 24 “DJO”) manufacture orthopedic rehabilitation boots with soles that are thicker than 25 2.6 cm. (ECF No. 12 (“FAC”), ¶¶ 1, 9, 12, 14.) DJO sells its boots “directly to 26 consumers and indirectly through prescribing medical intermediaries.” (Id. at ¶ 27 13.) On December 1, 2017, Plaintiff Daniel Dreifort injured his right ankle. (Id. at 28 ¶ 57.) On March 7, 2018, Plaintiff went to “UCSD La Jolla USS Sports Medicine 1 for treatment of his ankle injury,” where he was prescribed an Aircast AirSelect 2 Standard orthopedic rehabilitation boot manufactured by DJO. (Id. at ¶¶ 61, 63.) 3 The sole of the boot was approximately 5 cm thick. (Id. at ¶ 17.) Plaintiff wore the 4 boot from March 7 to March 13, 2018. (Id. at ¶ 74.) On March 13, 2018, Plaintiff 5 suffered from a back injury caused by the “thick sole” of the boot, which “caused 6 leg length discrepancy which constantly put additional strain on Plaintiff’s back.” 7 (Id. at ¶ 75.) Plaintiff had previously suffered “disk herniation” problems in 2007 8 and 2013. (Id.) Plaintiff alleges that his secondary injury is “typical among the 9 users of DJO manufactured thick sole [b]oots.” (Id. at ¶ 99.) He states that DJO 10 did not disclose to him “the risk of secondary injury” or that the boot “causes leg 11 length discrepancy,” and that DJO also did not warn healthcare providers of such 12 risks. (Id. at ¶¶ 90-91, 99.) After Plaintiff’s health insurance covered partial 13 payment for the boot, DJO billed Plaintiff directly for $44.52, which Plaintiff paid. 14 (Id. at ¶¶ 86-87.) 15 On March 27, 2018, “Plaintiff notified UCSD of his March 13, 2018 back injury 16 from the [b]oot” and “[t]hat same day, a different UCSD healthcare provider 17 responded to Plaintiff’s concerns by recommending Plaintiff purchase a product 18 called Evenup available on Amazon.com for about $20-30.” (Id. at ¶¶ 82-83.) 19 Evenup is a product that DJO sells separately and is intended to “equalize a 20 patient’s healthy limb length and reduce body strain while walking in a cast or 21 walker.” (Id. at ¶ 152.) On May 13, 2018, “Plaintiff purchased the Evenup from 22 www.amazon.com” and paid “$16.99 plus $1.32 in taxes.” (Id. at ¶ 88.) Plaintiff 23 never used the Evenup but believes it “would have prevented Plaintiff’s back injury, 24 or at least lessened or delayed it.” (Id. at ¶¶ 89, 98.) Plaintiff states that “DJO 25 never disclosed to [him] the existence of the Evenup” and that he “only learned of 26 the Evenup from UCSD after it was too late.” (Id. at ¶ 93.) 27 Plaintiff brings the following class action causes of action against DJO: (1) 28 fraudulent concealment, (2) violations of California’s False Advertising Law, (3) 1 violations of California’s Unfair Competition Law, (4) violations of the Consumer 2 Legal Remedies Act, and (5) product liability. DJO moves to dismiss Plaintiff’s 3 FAC in its entirety under Fed. R. Civ. P. 12(b)(6) and 12(b)(1), or alternatively, 4 moves to strike Plaintiff’s class allegations under Fed. R. Civ. P. 12(f). (Mot. to 5 Dismiss FAC.) 6 II. Rule 12(b)(1) Standing 7 The Court first addresses DJO’s argument that Plaintiff’s class action claims 8 should be dismissed for lack of standing to the extent that the claims encompass 9 models of boots other than the one Plaintiff purchased, because Plaintiff would not 10 have standing as to products he never purchased and used. (See id. at 14-15.) 11 In addition to the Aircast Airselect Standard, Plaintiff identifies more than 30 other 12 DJO boot models that he states are subject to his class claims. (FAC, ¶ 31.) He 13 states that all of the identified boot models “share materially common deficiencies 14 with the specific model that injured Plaintiff,” in part because they “have a sole 15 thicker than 2.6 cm.” (Id. at ¶¶ 32, 34.) At the pleading stage, the Court declines 16 to dismiss Plaintiff’s class allegations as to the additional identified boot models, 17 which Plaintiff alleges are materially similar to the Aircast Airselect Standard that 18 Plaintiff claims injured him. The Court finds it would be more appropriate to 19 address this argument after discovery, and at the class certification stage. 20 III. Rule 12(b)(6) Failure to State a Claim 21 A. Legal Standard 22 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be 23 granted only where a plaintiff's complaint lacks a “cognizable legal theory” or 24 sufficient facts to support a legal claim. Balistreri v. Pacifica Police Dept., 901 F.2d 25 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of 26 material fact in the plaintiff's complaint are taken as true and construed in the light 27 most favorable to the plaintiff. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480 , 28 1484 (9th Cir. 1995). Dismissal is appropriate only where “the complaint fails to 1 state a claim to relief that is plausible on its face.” Curry v. Yelp Inc., 875 F.3d 2 1219 , 1224–25 (9th Cir. 2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 3 570 (2007)). 4 In addition, a plaintiff who alleges fraud must meet the heightened pleading 5 requirements of Rule 9(b). Under that Rule, a plaintiff “must state with particularity 6 the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). This 7 requires the pleader to “state the time, place, and specific content of the false 8 representations as well as the identities of the parties to the misrepresentation.” 9 Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393 , 1401 (9th Cir. 10 1986). “Averments of fraud must be accompanied by the who, what, when, where, 11 and how of the misconduct charged.” Kearns v. Ford Motor Co., 567 F.3d 1120 , 12 1124 (9th Cir. 2009) (internal quotation marks and citations omitted). Rule 9 exists 13 to give defendants notice of the specific misconduct with which they have been 14 accused. Id. 15 Even if fraud is not a necessary element of a claim, the plaintiff must still 16 comply with Rule 9(b) if he “allege[s] in the complaint that the defendant has 17 engaged in fraudulent conduct.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 , 18 1103 (9th Cir. 2003). This is true when the plaintiff “allege[s] a unified course of 19 fraudulent conduct and rel[ies] entirely on that course of conduct as the basis of a 20 claim.” Id. This renders the claim “grounded in” or “sounding in” fraud. Id. A claim 21 grounded in fraud must meet the heightened pleading requirements of Rule 9(b). [22] Id. at 1103–04. “Any averments which do not meet that standard should be 23 disregarded or stripped from the claim for failure to satisfy Rule 9(b).” Kearns, 567 24 F.3d at 1124 (internal quotation marks and citations omitted). 25 B. Fraudulent Concealment 26 Plaintiff’s first cause of action is for fraudulent concealment. (Compl., ¶¶ 27 115–169.) “The elements of a cause of action for fraud in California are: ‘(a) 28 misrepresentation (false representation, concealment, or nondisclosure); (b) 1 knowledge of falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) 2 justifiable reliance; and (e) resulting damage.’” Kearns, 567 F.3d at 1126 (quoting 3 Engalla v. Permanente Med. Grp., Inc., 15 Cal.4th 951, 974 (1997)). To allege 4 reliance in a fraudulent concealment claim, a plaintiff “need only prove that, had 5 the omitted information been disclosed, one would have been aware of it and 6 behaved differently.” Mirkin v. Wasserman, 5 Cal. 4th 1082, 1093 (1993). 7 First, Plaintiff alleges that DJO “actively concealed the risk of secondary 8 injury when they falsely advertised that their SoftStrike technology, used in the 9 Aircast Airselect Standard, enables a normal walking gait when the Aircast 10 Airselect Standard actually causes an abnormal walking gait due to the leg length 11 discrepancy,” “fraudulently omitted that thick sole Boots are dangerous and cause 12 secondary injury or pain,” and “actively concealed that their Boot causes injury by 13 advertising the Boot is clinically proven to provide pain relief and improve healing 14 time.” (FAC, ¶¶ 127, 131, 141.) Second, Plaintiff alleges that DJO had knowledge 15 of these falsities. (Id. at ¶ 125.) Third, Plaintiff alleges DJO’s intent to defraud. 16 (Id. at ¶ 151.) Fourth, Plaintiff alleges that he “would not have worn the [b]oot or 17 he would have purchased an Evenup product earlier,” “if DJO had properly 18 disclosed the risk of secondary injury or existence of the Evenup.” (Id. at ¶¶ 160– 19 62.) Fifth, Plaintiff pleads resulting damage. (Id. at ¶¶ 163–64.) In addition, in 20 compliance with Rule 9(b), Plaintiff describes the DJO advertisements with 21 allegedly misleading information (id. at ¶¶ 128–29), specifies the specific boot 22 models that contain the alleged design defect of soles thicker than 2.6 cm (id. at 23 ¶¶ 14, 31), alleges that DJO had exclusive knowledge of the facts underlying his 24 claim and specifies how he obtained his boot from DJO through his medical 25 provider and health insurance (id. at ¶¶ 61–73, 86, 137), and specifies how and 26 when he suffered his injuries from the boot (id. at ¶¶ 74–75). While DJO seeks 27 dismissal of Plaintiff’s FAC in its entirety, it does not identify or argue that there are 28 any specific deficiencies with Plaintiff’s fraudulent concealment cause of action. 1 Accordingly, the Court finds that Plaintiff’s fraudulent concealment cause of action 2 is adequately pled. 3 C. False Advertising Law and Consumer Legal Remedies Act 4 The Court previously dismissed Plaintiff’s FAL and CLRA claims with leave 5 to amend because they suffered “from factual deficiencies with respect to the 6 relevant boot model, how Plaintiff acquired the boot, and when the relevant events 7 took place.” (ECF No. 6 at 15–16.) Plaintiff’s FAC now identifies the DJO Aircast 8 Airselect Standard as the boot model that caused his injuries (FAC, ¶ 61), specifies 9 that he acquired the boot when it was prescribed to him by UCSD La Jolla USS 10 Sports Medicine to treat a December 1, 2017 injury to his right ankle (id. at ¶¶ 57– 11 71), specifies that he made a direct payment of $44.52 to DJO for the boot, after 12 partial payment was covered by his health insurance (id. at ¶¶ 86–87), and 13 specifies the dates that he wore the boot and when and how the boot injured his 14 back (id. at ¶¶ 74–81). While DJO seeks dismissal of Plaintiff’s FAC in its entirety, 15 it does not identify or argue that there are any specific deficiencies with Plaintiff’s 16 FAL and CLRA causes of action. Accordingly, the Court finds that Plaintiff’s FAL 17 and CLRA causes of action are adequately pled. 18 D. Unfair Competition Law 19 The Court previously dismissed Plaintiff’s UCL claim with leave to amend 20 because it was a “shotgun pleading” that simply “allege[d] the elements of a UCL 21 claim in a conclusory manner and without any factual support.” (ECF No. 6 at 15– 22 16.) Plaintiff’s FAC now identifies the specific actions, omissions, and statements 23 from DJO that he alleges violate the UCL. (See FAC, ¶¶ 193–212.) While DJO 24 seeks dismissal of Plaintiff’s FAC in its entirety, it does not identify or argue that 25 there are any specific deficiencies with Plaintiff’s UCL cause of action. 26 Accordingly, the Court finds that Plaintiff’s UCL cause of action is adequately pled. 27 // 28 // 1 E. Product Liability 2 “The elements of a strict products liability cause of action are a defect in the 3 manufacture or design of the product or a failure to warn, causation, and injury.” 4 Nelson v. Superior Court, 144 Cal. App. 4th 689, 695 (2006). Plaintiff’s product 5 liability cause of action is premised on a design defect and failure to warn. 6 a. Design Defect 7 The Court previously dismissed Plaintiff’s design defect claim with leave to 8 amend because he failed to indicate which of the two tests under California law he 9 was basing his claim on and did not indicate why the boot’s design was defective. 10 (ECF No. 6 at 17.) Plaintiff’s FAC now alleges that DJO’s boots are defective 11 under both the consumer expectations test and the risk-benefit test. “Under the 12 consumer expectations test, plaintiff should describe how the product failed to 13 meet the minimum safety expectations of an ordinary consumer of that product. 14 Similarly, under the risk-benefit test, a plaintiff should allege that the risks of the 15 design outweigh the benefits, and then explain how the particular design of the 16 product caused plaintiff harm.” In re Toyota Motor Corp. Unintended Acceleration 17 Mktg., Sales Practices & Prod. Liab. Litig., 754 F. Supp. 2d 1208, 1220 (C.D. Cal. 18 2010) (internal citations and quotations omitted). 19 For the consumer expectations test, Plaintiff’s FAC alleges that DJO’s use 20 of a sole with a thickness greater than 2.6 cm creates leg length discrepancies and 21 gait asymmetries that put additional strain on and risk secondary injuries to the 22 knees, hips, and back. (FAC, ¶¶ 242, 244–252.) Plaintiff alleges that ordinary 23 consumers do not expect such secondary injuries from “a product intended to 24 facilitate physical rehabilitation.” (Id. at ¶ 252.) For the risk-benefit test, Plaintiff 25 similarly alleges that the additional strains caused by the leg length discrepancies 26 and gait asymmetries from the greater than 2.6 cm thick sole of his DJO boot 27 herniated a disk in his back. (Id. at ¶¶ 257.) Plaintiff alleges that the resulting 28 secondary injuries can be severe enough to require a hip replacement, and can 1 result in new or worsened pain. (Id. at ¶¶ 256–260.) DJO does not identify or 2 argue that there are any specific deficiencies with Plaintiff’s design defect cause 3 of action. Accordingly, the Court finds that Plaintiff’s design defect cause of action 4 is adequately pled. 5 b. Failure to Warn 6 Manufacturers are “strictly liable for injuries caused by their failure to warn of 7 dangers that were known to the scientific community at the time they manufactured 8 and distributed their product.” Johnson v. Am. Standard, Inc., 43 Cal. 4th 56 , 64 9 (2008). The Court previously dismissed Plaintiff’s failure to warn claim with leave 10 to amend because Plaintiff referenced a 2018 “Leg Length Discrepancy Study” in 11 his complaint but had not pled that the study was “generally recognized” and the 12 “prevailing best scientific medical knowledge available at the time of manufacture 13 and distribution” and did “not indicate that this study predated DJO’s manufacture 14 and distribution of the boot or boots at issue.” (ECF No. 11 at 19.) Plaintiff’s FAC 15 now references and attaches one additional 2018 study about joint pain associated 16 with controlled ankle movement walker boot wear (see FAC, Exh. A), but still fails 17 to allege that any of the referenced studies (1) are generally recognized, (2) reflect 18 the best scientific medical knowledge available at the time of manufacture and 19 distribution, and (3) predate DJO’s manufacture and distribution of the boots at 20 issue. Accordingly, Plaintiff’s failure to warn products liability cause of action is 21 DISMISSED WITH LEAVE TO AMEND. 22 IV. Rule 12(f) 23 DJO’s Motion to Dismiss does not argue that there are any specific 24 deficiencies with how any particular causes of action are pled. Rather, the 25 predominant focus of DJO’s argument is that Plaintiff’s entire action should be 26 dismissed because it is premised on personal injury, which, along with Plaintiff’s 27 theory of damages, would require individual inquiries that would make class 28 resolution inappropriate. (See Mot. to Dismiss FAC at 5–14.) Under Rule 12(f), a 1 court “may strike from a pleading an insufficient defense or any redundant, 2 immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “In general, 3 however, striking the pleadings is considered an extreme measure, and Rule 12(f) 4 motions are therefore generally viewed with disfavor and infrequently granted. 5 Moreover, dismissal of a class at the pleading stage is rare because the class 6 determination generally involves considerations that are enmeshed in the factual 7 and legal issues comprising the plaintiff’s cause of action.” Jessop v. Giggle, Inc., [8] 2015 WL 11622421 , at *1 (S.D. Cal. Feb. 2, 2015) (internal citations and quotations 9 omitted). See also Mason v. Ashbritt, Inc., 2020 WL 789570 , at *4 (N.D. Cal. Feb. 10 17, 2020) (“in general, class allegations are not tested at the pleading stage and 11 are instead scrutinized after a party has filed a motion for class certification”). 12 “Even where plaintiffs' class definitions are suspicious and may in fact be improper, 13 plaintiffs should at least be given the opportunity to make the case for certification 14 based on appropriate discovery.” Valdez v. Harte-Hankes Direct Mktg./Fullerton, 15 Inc., 2017 WL 10592135 , at *4 (C.D. Cal. Dec. 21, 2017). Because Defendant’s 16 Rule 12(f) motion is based on the appropriateness of maintaining a class action, 17 the Court declines to dismiss Plaintiff’s class allegations at the pleading state. See 18 Rosales v. FitFlop USA, LLC, 882 F. Supp. 2d 1168, 1179 (S.D. Cal. 2012) 19 (denying a Rule 12(f) motion to strike class allegations because “class suitability 20 issues are best resolved during a motion for class certification”); Sulzberg v. 21 Happiest Minds Techs. Pvt. Ltd., 2019 WL 6493984 , at *2 (N.D. Cal. Dec. 3, 2019) 22 (declining to dismiss class allegations at the pleading stage because “Defendant's 23 attacks on Plaintiff's class allegations are better made in the context of a Rule 23 24 motion for class certification, after appropriate development of the record”); 25 Claiborne v. Water of Life Cmty. Church, 2017 WL 9565337 , at *14 (C.D. Cal. Aug. 26 25, 2017) (denying a Rule 12(f) motion to strike class allegations because “given 27 the early stage of these proceedings, it is premature to decide whether this case 28 may proceed as a class action before the FAC has been answered, discovery has 1 ||commenced, or a motion for class certification has been filed”). 2 V. CONCLUSION 3 For the foregoing reasons, Defendants’ Motion to Dismiss Plaintiff's FAC is 4 ||GRANTED IN PART AND DENIED IN PART. The Court GRANTS Plaintiff leave > amend his complaint as to the failure to warn products liability cause of action 6 || within 21 days of the entry of this order. Defendants shall file a response to the present or amended complaint within 21 days of the service of any amended 8 complaint or the expiration of the 21-day period to amend, whichever comes first. 9 The Court notes its concern that this action may involve only personal injury 10 damages, which if true, may make this action inappropriate for class resolution. It 11 unclear from Plaintiff's FAC whether he would have purchased the Evenup had 12 || Defendants disclosed the alleged defect when he obtained the boot, and therefore, 13 |lit is unclear what, if any, economic damages Plaintiff has suffered. However, the 14 || Court elects to make a determination on the existence of any economic damages 15 upon a fuller record after a limited discovery period. Accordingly, discovery as to 16 || Plaintiff's damages shall take priority, and any motion for class certification must 17 filed within 6 months of the filing of Defendant’s answer to the complaint. [18] 19 || ITIS SO ORDERED. [21] 22 |\|Dated: December 30, 2020 aay Tid Mieka [23] Honorable Barry Ted Moskowitz 24 United States District Judge