In this week when we celebrate the founding of our country, other than a case from Philadelphia, second best would be to talk about Virginia. It’s the home of the first English settlement, where the first Thanksgiving was held, and was home to eight U.S. Presidents. And drug and device defense lawyers have some pretty positive things to say about Virginia law too. So, it’s no wonder that the plaintiff in Boyer v. Abbott Vascular Inc., 2023 U.S. Dist. LEXIS 112747 (N.D. Cal. Jun. 29, 2023), trekked to the other side of the country looking for a friendlier jurisdiction. But running away from home isn’t as easy as it sounds.
Plaintiff’s husband died following heart surgery during which a catheter manufactured by defendant broke and could not be removed. Plaintiff’s husband was a resident of Virginia, and the surgery took place in Virginia. Id. at *1-2. Presumably his doctors are in Virginia, his pre-surgical care was in Virginia, and the catheter would have been purchased in Virginia. The only connection this case has to California is that is defendant’s principal place of business. Id. at *2. Plaintiff’s complaint did not allege that the catheter was designed in or manufactured in California. Plaintiff tried to include such allegations in her opposition to defendant’s motion to dismiss, but the court cannot consider new allegations outside the complaint. Id. at *4n.1. They also appear to be at least partially inaccurate. Id. So, if the alleged design defect, manufacturing defect, and failure to warn did not occur in California, California’s interest in the claim is outweighed by Virginia’s interest in “regulating conduct by imposing liability for harm occurring within its borders.” Id. at *2. With the California court applying Virginia law, most of plaintiff’s claims were dismissed.
First, Virginia does not recognize strict product liability. Id. at *3. Second, plaintiff’s claim that defendant negligently failed to warn plaintiff’s husband directly was dismissed under the learned intermediary doctrine. Plaintiff did allege that defendant failed to adequately warn her husband’s surgeons, but that is all she alleged. She did not specify the warnings that were given or explain how they were deficient. That claim was dismissed as inadequately pleaded. Another negligence claim was also dismissed as not recognized under Virginia law – failure to recall. Id. at *3-4.
Third, plaintiff’s implied warranty claim was dismissed to the extent it was based on design defect as such a claim is barred by comment k to the Restatement (Second) of Torts §402A. Fourth, her express warranty claim also did not survive TwIqbal, because she failed to allege any “specific statements” that would form the basis for the warranty. Id. at *5.
The court gave plaintiff two months to do some discovery and then amend her current barebones complaint, including as to the application of California law. Given the deference to applying the law of the location of the injury, while plaintiff may have filed her complaint over 2000 miles from home, that may not be far enough to escape Virginia law.