Boyer v. Abbott Vascular, Inc.

Background

Abbott Vascular moved to dismiss part of Rebecca S. Boyer’s first amended complaint. The claims arose from the death of Boyer’s husband, Roy Boyer, after heart surgery. During the surgery, the distal portion of a coronary dilatation catheter broke and became lodged in Roy’s artery. Attempts to remove it were unsuccessful, and Roy died ten days after the surgery.

Choice of Law

The court applied Virginia law rather than California law. Roy was a Virginia resident, and the surgery occurred in Virginia. Abbott Vascular’s principal place of business was in California, giving California an interest in regulating the conduct of its companies, but the complaint did not allege that the catheter was designed or manufactured there. The court concluded that Virginia’s interests were stronger because the injury and surgery occurred there and the alleged tortious conduct was not linked to California.

The court did not consider Boyer’s assertion in her opposition brief that the catheter was designed and manufactured in California because that allegation was not included in the complaint. The court also noted that Abbott Vascular disputed at least part of that assertion and stated that the catheter was manufactured in Costa Rica.

Claims and Rulings

Strict product liability. The court dismissed Boyer’s strict product-liability claim because Virginia does not recognize strict liability.

Negligence. The court dismissed the negligence claim in part. It ruled that Abbott Vascular had no duty under Virginia law to warn Roy directly about the risks of a prescription medical product because the manufacturer’s warning duty runs to physicians rather than patients. It also ruled that Virginia law does not recognize a duty to recall the catheter. Abbott Vascular did have a duty to warn Roy’s doctors, but the complaint did not plausibly allege that Abbott breached that duty: it referred generally to inadequate warnings without identifying the warnings given or explaining why they were deficient. The court noted that Abbott Vascular had not moved to dismiss negligence claims based on negligent design or negligent manufacturing.

Implied warranty. The court granted Abbott Vascular’s motion to dismiss the implied-warranty claim insofar as it was based on a design-defect theory. The court noted that Abbott Vascular had not moved to dismiss the claim insofar as it was based on failure to warn or a manufacturing defect.

Express warranty. The court granted the motion to dismiss the express-warranty claim because Boyer did not identify the specific warranties or statements Abbott Vascular allegedly made. The complaint alleged only generally that Abbott had made express warranties about the catheter and its components.

Survivorship. The court granted the motion to dismiss the survivorship claim because Virginia does not recognize a survivorship cause of action. According to the court, Virginia’s wrongful-death statute provides the exclusive way to pursue the decedent’s personal-injury claim after death.

Wrongful death. The court granted the motion to dismiss Boyer’s wrongful-death claim. It explained that Virginia’s wrongful-death statute does not create a new cause of action, but gives a personal representative the right to enforce the decedent’s claim for the personal injury that caused death. Thus, the wrongful-death claim could not proceed as pleaded, although Boyer could still exercise that statutory right to enforce the decedent’s personal-injury claim.

Disposition

The court granted Abbott Vascular’s motion to dismiss, with leave to amend. It gave Boyer 60 days to amend her complaint and stated that the amended complaint was due by August 28, 2023. The court anticipated that Boyer might conduct some discovery before amending, particularly to help resolve the choice-of-law issue. The initial case-management conference was rescheduled to September 15, 2023.