We’ve written earlier than concerning the long-running Muldoon v. DePuy Orthopedics lawsuit. For one factor, it’s been round eternally – its info are virtually as previous because the Weblog. As we said right here:
Muldoon . . . is a go well with over hip-replacement surgical procedure performed in 2007. Swimsuit was not filed, nevertheless, till 2015 – undoubtedly Muldoon is one other instance of the flotsam and jetsam dredged up by MDL lawyer solicitation. So Muldoon was stale from the start. However it acquired worse. For some eight years, Muldoon sat within the horribly mismanaged Pinnacle Hip MDL in Texas. It seems that nothing in any respect occurred throughout these years . . . [until] 2023, when the case was in the end remanded, with out remark. So, as a result of mixed lassitude of the plaintiffs and MDL administration, the go well with is sort of 14½ years post-surgery, and solely now being addressed on the pleadings.
(citations and citation marks omitted).
Lastly, in Muldoon v. DePuy Orthopaedics, Inc., 2025 U.S. Dist. Lexis 34013 (N.D. Cal. Feb. 25, 2025), it was dismissed with prejudice. And in the long run, the plaintiff didn’t even put up a battle. Confronted with the defendant’s newest dismissal movement, “[p]laintiff has declined to file any opposition.” Id. at *2. What was at stake this time had been the claims that had survived the defendant’s first dismissal movement in opposition to the plaintiff’s absurdly extreme 18-count post-MDL amended criticism. We had some phrases to say about that criticism as nicely: “It’s a canine’s breakfast. Or it’s what our canines ship to our yard proper after consuming their breakfast.”
All of the claims that the product legal responsibility defendants (medical supplier defendants had beforehand received dismissal) moved in opposition to had been dismissed. These embody:
Categorical Guarantee
California privity guidelines in each categorical and implied guarantee litigation are a infamous morass, with extra exceptions and exceptions to exceptions than we’ve got fingers to rely them. Muldoon held that “privity is required except plaintiff adequately pleads California’s well-recognized exception whereby the producer made claims on to him on which he relied.” 2025 U.S. Dist. Lexis 34013, at *8. By way of ten years, three complaints, and the court docket’s most up-to-date invitation to amend his criticism (after plaintiff claimed direct privity in a short), plaintiff nonetheless had not pleaded the required info. As a substitute, he solely asserted what his surgeon – not the defendant producer − had advised him. Id. at *9. That wasn’t sufficient. “Such third-party representations are inadequate to fulfill the exception to California’s privity requirement.” Id. That was it, too. No extra amendments:
[F]urther modification can be futile. In opposition to the final movement to dismiss, plaintiff argued that he was in privity with the producer and that he might amend his criticism to allege that he bought the machine instantly from DePuy. Plaintiff failed to take action on modification, and continued makes an attempt to point out privity with the producer are more likely to be futile. Plaintiff has equally did not establish any statements made by the producer on which he relied, a lot much less particular statements alleged with the requisite significantly essential to state a declare.
Id. at *10.
Implied Guarantee
Privity can be (ostensibly) a component of California implied guarantee claims. Id. at *11 (“It’s settled regulation in California that privity between the events is a needed aspect to restoration on a breach of an implied guarantee of health for the customer’s use”) (quotation and citation marks omitted). As soon as once more, after claiming privity in a filed temporary, he did not plead it when given one other probability. Id. at *12. As soon as once more, the declare was dismissed with prejudice:
In granting go away to amend . . ., the court docket permitted plaintiff to say this explanation for motion once more provided that plaintiff alleged privity by “connect[ing] documentary proof of buy within the type of an bill, receipt, and/or particular particulars of fee.” Plaintiff failed to take action, and the court docket concludes that additional modification can be futile.
Id. (quotation omitted).
Fraud
Ditto. Plaintiff once more alleged nothing greater than supposedly receiving info from his surgeon. Id. at *16-17. Then he alleged, that the surgeon was the defendant’s “agent.” Id. However as a substitute of asserting any info to again that up, plaintiff made obscure claims that his surgeon was in some kind of consulting function with the defendant, for which the surgeon had been paid “substantial sums of cash.” Id. at *16. However boilerplate allegations like “each Defendant was the agent or worker of each different Defendant,” id., don’t minimize it beneath Fed. R. Civ. P. 9(b), significantly when what this plaintiff improperly outlined as one single defendant was, in reality, “5 distinct entities. Id. at *17.
[E]ach allegation regarding [the surgeon’s] statements merely asserts that he was performing as an agent of the outlined multi-entity time period . . . when making them − not any particular person defendant. Plaintiff’s pleading is insufficient as a result of Rule 9(b) doesn’t enable a criticism to merely lump a number of defendants collectively however requires plaintiffs to distinguish their allegations when suing a couple of defendant and inform every defendant individually of the allegations surrounding his alleged participation within the fraud.
Id. (quotation and citation marks omitted). But once more, modification was “futile” as a result of, in spite of everything this time, the plaintiff nonetheless did not “allege particular misrepresentations made by any [manufacturing] Defendant” however solely the surgeon’s statements. Id. at *18. The allegation “on behalf of” was a “naked authorized assertion[] advancing a brand new concept of legal responsibility unsupported by amended factual allegations,” and the generalized declare of economic ties didn’t change that. Id. at *9 n.2 & *19.
Negligent Misrepresentation
“For a similar causes plaintiff doesn’t adequately allege an intentional misrepresentation explanation for motion, he fails to allege negligent misrepresentation with the specificity required by Rule 9(b).” Id. at *19-20. Buh-bye.
RICO
RICO additionally requires Rule 9(b) “particular” pleading. Id. at *21. A decade after submitting go well with, plaintiff asserted nothing greater than boilerplate “allegations of mail fraud and wire fraud because the relevant predicate acts.” Id. at *20. Sayonara.
[Plaintiff’s] allegations regarding the explicit acts of mail and wire fraud are too normal and missing intimately to fulfill the heightened pleading necessities of Rule 9(b). For instance, the criticism doesn’t allege the timeframe throughout which [the mail or wire fraud occurred]. Nor has plaintiff alleged the identities of these concerned in any transmissions nor which defendant did which act.
Id. at *22. Once more, this was the tip of the litigation line. “Plaintiff has had a number of alternatives to remedy the very deficiencies nonetheless current in his pleading.” Id. at *24. Certainly, he did not plead info even after the court docket “introduced [him] with a proof of the [previous complaint’s] deficiencies.” Id.
Failure to Oppose Dismissal Movement
If you happen to’re within the Native Guidelines of the Northern District of California, Muldoon additionally holds, with intensive dialogue, that beneath the elements for Native Rule 7-3(a), the plaintiff’s failure to file a well timed opposition, alone, additionally justified dismissal with prejudice 2025 U.S. Dist. Lexis 34013, at *25-29.
* * * *
That the meritless Muldoon litigation took a decade to be dismissed, and that when push got here to shove the plaintiff couldn’t even muster a response, is yet one more indictment of our sluggish and dear MDL system. Muldoon is yet one more instance of bogus instances that plaintiffs park in MDLs for a few years, hiding within the weeds, within the hopes that sheer numbers alone will pressure settlement with out the nonexistent deserves of such instances ever being evaluated. Had Muldoon not been bundled off to an MDL, the place completely nothing was accomplished it most likely wouldn’t have lasted a 12 months, had it even been filed in any respect.
