Approximately 18 months ago we reported on C.D. California cases that silicone breast implant defendants managed to keep in federal court and then get dismissed with prejudice. We expressed delight with the opinions because the court’s discussions of fraudulent joinder and preemption were particularly insightful. No doubt another source of our delight was that the author of the opinion was Judge Andre Birotte, a former colleague in the U.S. Attorney’s Office, and a person for whom our admiration is boundless.

Our blog accepts comments. Believe it or not, those comments do not always consist of unalloyed praise. We occasionally get portrayed as hard-hearted villains who gleefully trample on widows and orphans. That happened with our post on Judge Birotte’s decisions. How dare we extol a decision that slammed the courthouse door shut on grievously hurt plaintiffs? The comment included doubts about our fitness for polite company. Well, believe it or not, we are capable of human sympathy. We do recognize that some people are injured by bad conduct and deserve compensation. Still, we dwell in a world in which sometimes bad things happen to people through no one’s fault. We also dwell in a world in which every valid legal claim arrives accompanied by ten or one hundred others that possess more opportunism than merit. Clearly, though, the commenter would have none of that. She concluded by thanking the stars above that we were not the last word; there was always the Ninth Circuit.

The Ninth Circuit has now reviewed the cases. It would be churlish of us to say that the Ninth Circuit ruled that we were right. It would be accurate to say that the Ninth Circuit ruled that Judge Birotte was right. More specifically, the Ninth Circuit issued four memorandum dispositions affirming the district court’s rulings that disposed of 21 plaintiffs’ claims.

The four decisions are: (1) Nunn v. Mentor Worldwide, LLC, 2021 WL 406304 (9th Cir. Feb. 5, 2021), (2) Billetts v. Mentor Worldwide, LLC, 2021 WL 406313 (9th Cir. Feb. 5, 2021), (3) Sewell v. Mentor Worldwide, LLC, 2021 WL 406623 (9th Cir. Feb. 5, 2021), and (4) Vieira v. Mentor Worldwide, LLC, 2021 WL 406628 (9th Cir. Feb. 5, 2021). The four decisions are virtually identical.

The appellate court saw no error in the district court’s denial of the plaintiffs’ motions to remand because (a) the co-defendant’s deposition was “other paper” that provided sufficiently new information to trigger removal; and (b) there was clear and convincing evidence that the non-diverse defendant had been fraudulently joined. That defendant was not involved in manufacturing or supplying the silicone used in the implants. Recovery against that defendant was impossible.

The Ninth Circuit also upheld the district court’s ruling on the merits. The plaintiffs had attempted to evade preemption of their failure to warn claims by relying on the parallel claim exception. The plaintiffs’ failure to warn claims were premised on an alleged failure to report adverse event claims. Such a claim, sadly, has legs under California law (not too many other places), but here it was entirely too conclusory and speculative under Twombly. The plaintiffs postulated that if the defendant had conducted post-approval studies with more participants, it would have seen more adverse events, and then would have been required to report them to the FDA. Huh? Such counterfactual clairvoyance did not impress the court. In any event, there is no parallel state law duty (not even in California) supporting a claim regarding the conduct of post-approval studies. Further, there is no federal requirement to warn patients or doctors directly of adverse events.

The plaintiffs continued their tour circumnavigating preemption by relying on their manufacturing defect claim. For that claim to survive, the plaintiffs must allege that the defendants “deviated from a particular pre-market approval or other FDA requirement applicable to the Class III medical device.” They cannot “simply demonstrate a defect or a malfunction and rely on res ipsa loquitur to suggest only … that the things speaks for itself.” The plaintiffs contended that the breast implants contained some unspecified materials that differed from those approved by the FDA. Nice try. The Ninth Circuit held that such vague allegations were insufficient because the plaintiffs did not allege which particular FDA requirement was violated.

The Ninth Circuit ended the opinions by acknowledging that it was “sympathetic to Plaintiffs’ health problems,” but still ruling that the complaint was bereft of legal support, and that Judge Birotte had not abused his discretion in denying the plaintiffs’ requests for leave to amend as futile.

If our critic remains unpersuaded by the Ninth Circuit’s reasoning, we hope she at least is open to the possibility that sympathy and dismissal can coexist. After all, the Ninth Circuit said so.

We offer a tip of the cyber cap to Dustin Rawlin and the Tucker Ellis team for achieving these results. They have done a splendid job of defending their client. If we continue to be the target of slings and arrows from our critics, we may turn to them for help.

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