John Muldoon v. DePuy Orthopaedics, Inc.

Background

John Muldoon filed this action as a class action in 2015 concerning alleged injuries from a 2007 hip-replacement surgery. He later eliminated the class allegations. The Third Amended Complaint asserted claims against several defendants, including Medical Device Business Services, Inc. formerly known as DePuy Orthopaedics, Inc., DePuy, Inc., Johnson & Johnson, Johnson & Johnson Services, Inc., and Johnson & Johnson International. The court collectively called those entities the “DePuy Defendants.”

The motion addressed five claims against the DePuy Defendants: fourth, express warranty; fifth, implied warranty; sixth, intentional misrepresentation; seventh, negligent misrepresentation; and eighth, a civil claim under the Racketeer Influenced and Corrupt Organizations Act, commonly called civil RICO. The DePuy Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. Muldoon did not timely file an opposition or a statement saying he did not oppose the motion. He later asked for more time, but the court denied that request.

Court’s Analysis

Express warranty

The court held that Muldoon’s express-warranty claim did not adequately allege contractual privity with a DePuy Defendant. Under the California law discussed by the court, privity is generally required, unless the manufacturer made statements directly to the consumer and the consumer relied on them. Muldoon had previously argued that he bought the components directly from DePuy, but he did not include that allegation in the Third Amended Complaint. He alleged that Dr. David Dodgin told him the implant was safe and effective, but the court found that statements by the treating physician did not satisfy the exception for statements made directly by the manufacturer.

The court also found that Muldoon did not identify specific statements made by a manufacturer on which he relied. Because he had previously been given detailed instructions about what to allege and had repeatedly failed to cure the deficiencies, the court concluded that further amendment would be futile. It granted the motion to dismiss the express-warranty claim with prejudice.

Implied warranty

The court held that the implied-warranty claim also failed because the Third Amended Complaint did not allege facts showing privity with any DePuy Defendant. Although Muldoon had previously stated that he purchased the components directly from DePuy, neither the Second Amended Complaint nor the Third Amended Complaint included that factual allegation. The court had previously required documentary proof of purchase or specific payment details, which Muldoon did not provide. The court concluded that further amendment would be futile and granted the motion to dismiss the implied-warranty claim with prejudice.

Intentional misrepresentation

The court applied Federal Rule of Civil Procedure 9(b), which requires fraud allegations to state with particularity the who, what, when, where, and how of the alleged misconduct. Muldoon alleged that Dr. Dodgin acted as DePuy’s agent and made statements about the hip implant’s safety, effectiveness, and expected duration. But the court found that the allegations referred collectively to five separate DePuy entities and did not identify which individual defendant was responsible for the alleged statements.

The court also found that the complaint did not plead an agency relationship with the required specificity. It concluded that Muldoon had offered new theories rather than new supporting facts and had repeatedly failed to correct the same defects. The court granted the motion to dismiss the intentional-misrepresentation claim with prejudice.

Negligent misrepresentation

The court held that the negligent-misrepresentation claim failed for the same lack of specificity identified in the intentional-misrepresentation claim. It therefore granted the motion to dismiss the negligent-misrepresentation claim with prejudice.

Civil RICO

Muldoon alleged that the DePuy Defendants committed mail fraud and wire fraud as predicate acts supporting his civil RICO claim. The court held that the allegations did not satisfy Rule 9(b). The complaint did not identify when the alleged mail and wire transmissions occurred, who sent or received them, which defendant performed each act, or the specific content of the alleged fraudulent communications. Instead, it attributed the alleged conduct generally to all defendants and referred to broad categories such as written agreements and fabricated clinical data.

Because the RICO allegations failed to identify predicate acts with particularity, the court did not address the other elements of the RICO claim. The court also found that Muldoon had repeatedly failed to cure the pleading defects despite receiving leave to amend. It dismissed the RICO claim against the DePuy Defendants with prejudice.

Failure to Oppose

The court separately considered Muldoon’s failure to file a timely opposition or statement of non-opposition under the district’s local rules. It weighed the factors governing dismissal for failure to follow local rules, including the public interest in resolving cases efficiently, docket management, prejudice, the preference for decisions on the merits, and less severe alternatives.

The court denied Muldoon’s motion to extend the deadline, finding that his delay in seeking an extension resulted from inexcusable neglect. Rather than dismissing DePuy from the action entirely, the court treated granting the unopposed motion to dismiss the specified claims as the less severe remedy. It stated that the failure to oppose provided an independent basis for granting the motion, in addition to the pleading deficiencies.

Disposition

Judge Phyllis J. Hamilton granted DePuy’s motion to dismiss. The court dismissed the express-warranty, implied-warranty, intentional-misrepresentation, negligent-misrepresentation, and civil RICO claims against the DePuy Defendants with prejudice. It denied Muldoon’s motion for an extension of time to oppose the motion. The court stated that other causes of action against the DePuy Defendants remained, so the ruling did not dismiss those defendants from the entire action.

The conclusion labels the seventh cause of action as “implied warranty,” although the opinion’s analysis and the motion description identify the seventh cause of action as negligent misrepresentation. This summary follows the analysis and motion description and treats the seventh claim as negligent misrepresentation.