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The title is ridiculous, but unfortunately true.

Muldoon v. DePuy Orthopaedics, Inc., is a suit over “hip-replacement surgery conducted in 2007.”  2024 WL 1892907, at *1 (N.D. Cal. April 30, 2024) (“Muldoon II”).  Suit was not filed, however, until 2015 – undoubtedly Muldoon is another example of the flotsam and jetsam dredged up by MDL lawyer solicitation.

So Muldoon was stale from the beginning.

But it got worse.  For some eight years, Muldoon sat in the horribly mismanaged Pinnacle Hip MDL “in Texas.”  2024 WL 1892907, at *1.  It appears that nothing at all happened during those years.  These Muldoon opinions (there are two, we’ll introduce the other in just a bit) simply skip over the eight years between 2015 and 2023, when the case was ultimately remanded, id., without comment.

So, due to the combined lassitude of the plaintiffs and MDL management, the suit is nearly 14½ years post-surgery, and only now being addressed on the pleadings.  In typically overpleaded MDL style, the current Muldoon complaint sued not only the device manufacturer but also the implanting surgeons and the hospital where the surgery took place.  Muldoon v. DePuy Orthopaedics, Inc., 2024 WL 1861013, at *1 (N.D. Cal. April 29, 2024) (“Muldoon I”); Muldoon II, 2024 WL 1892907, at *1.  The complaint alleged no fewer than eighteen causes of action:

  • (1) negligence against the device manufacturer defendants;
  • (2) strict product liability, manufacturing defect against the device manufacturer defendants;
  • (3) strict product liability, design defect against the device manufacturer defendants;
  • (4) strict product liability, failure to warn against the device manufacturer defendants;
  • (5) strict product liability, failure to test against the device manufacturer defendants;
  • (6) strict product liability, breach of express warranty against the device manufacturer defendants;
  • (7) strict product liability, breach of implied warranty against the device manufacturer defendants;
  • (8) fraud, intentional misrepresentation against the device manufacturer defendants;
  • (9) negligent misrepresentation against the device manufacturer defendants;
  • (10) false advertising against the device manufacturer defendants;
  • (11) violation of consumer legal remedies act against the device manufacturer defendants;
  • (12) violation of unfair competition law against the device manufacturer defendants;
  • (13) civil RICO against all defendants;
  • (14) negligence, medical malpractice against the surgeon and hospital;
  • (15) negligent supervision against the hospital;
  • (16) medical malpractice, lack of informed consent against the surgeon and hospital;
  • (17) breach of fiduciary duty against the surgeon and hospital; and
  • (18) battery against the surgeon and hospital.

Muldoon I, 2024 WL 1861013, at *1; Muldoon II, 2024 WL 1892907, at *1.

These two Muldoon opinions solely addressed claims against the healthcare providers – Muldoon I adjudicating the hospital’s motion to dismiss, and Muldoon II the surgeon’s similar motion.  Those motions to dismiss were filed in 2015, and like everything else sat dormant for eight MDL years where nothing at all happened to resolve these claims.  Muldoon I, 2024 WL 1861013, at *1 (“[w]ith motions to dismiss pending by [the surgeon and hospital], the lawsuit was removed to the Multi-District Litigation”); Muldoon II, 2024 WL 1892907, at *1 (same).  These quotes are the remand court’s way of saying “don’t blame me.”

Muldoon I resulted in the dismissal of all the claims against the hospital, although not all of the dismissals were on the merits.  That happened because the hospital was not diverse – the only basis plaintiff had for keeping it in this suit for eight long years was a Rule 11-worthy RICO claim.  RICO, however, doesn’t apply to personal injuries, and that was all that this plaintiff alleged.  See 18 U.S.C. §1964(c) (cause of action for “[a]ny person injured in his business or property”).  Why do we invoke Rule 11?  Because when confronted with the defendant’s damages-based argument, the plaintiff had no response:

The essential question to determine whether plaintiff alleges statutory standing for his RICO claim is what business or property interest recognized under state law was injured. [The hospital] moves to dismiss plaintiff’s RICO claim based on plaintiff’s failure to allege this element, and plaintiff entirely fails to respond to the argument.  Because he fails to address the argument entirely, plaintiff’s opposition points to no such state-based property interest identified in the complaint, nor can this court identify any.

Muldoon I, 2024 WL 1861013, at *3 (emphasis added).  By not responding to the hospital’s argument in any way, plaintiff “concede[d] that he cannot state a claim under the RICO statute for failure to allege an injury to a business or property interest.”

With the RICO claims dismissed, no independent basis for subject matter jurisdiction existed for any of the other claims against the hospital.  Id. at *4.  Given that California’s saving statute, Cal. C. Civ. Proc. §355, only applies to appellate reversals, these claims would almost certainly be barred by the statute of limitations should the plaintiff be foolhardy enough to attempt to refile them.

In Muldoon II, the surgeon was not quite as successful.  But then, the surgeon’s motion (also pending for eight years) addressed only three of the claims against him – RICO, medical malpractice, and battery.  2024 WL 1892907, at *3.

Plaintiff responded in a manner similar to his grotesquely overpleaded complaint.  He filed an overlong brief that violated the local rules.  Id.  If the defendant had sought to have it stricken, it would have been.  Id.

The first claim, RICO, had the same basic deficiency as in Muldoon I – plaintiff sought recovery of only personal injury damages.  Unless “based on a property interest,” purported “[f]inancial losses, in and of themselves, are insufficient to confer standing under RICO.”  Muldoon II, 2024 WL 1892907, at *4 (citation and quotation marks omitted).  Thus, the “out-of-pocket expenses” that plaintiff pleaded, “paying for a second implant, another hospital stay, another surgeon, etc.,” “d[id] not constitute injury to business or property sufficient to confer statutory standing.”  Id.

That’s great as far as it went, but Muldoon II didn’t go far enough.  Fifteen years after the disputed surgery, plaintiff claimed he could “amend his complaint to include allegations of injury to property interests . . ., such as intentional interference with contract and interference with prospective business relations.”  Id. at *5.  So plaintiff received leave to continue his practice of ridiculous overpleading.  The RICO pleadings also failed Rule 9(b)’s requirement of pleading fraud with specificity.  Id. at *6.  However, once again, plaintiff received leave to amend to add more stale allegations:

Although plaintiff alleges a background scheme of kickbacks . . ., the allegations plaintiff points to fail to satisfy Rule 9(b)’s heightened pleading standard.  For example, many of the allegations refer to all defendants together . . ., which obfuscates which actor plaintiff alleges committed which act.  Moreover, the allegations generally sound in plausible conjecture based on past conduct by the parties, but they are not pled with the specificity to put the parties on notice of what specific conduct is at issue in this action.

Id.  So, fifteen years after the fact, plaintiff receives another chance to plead facts that he hasn’t done so far.

As for the medical malpractice claim, plaintiff decided (again, fifteen years late) to try making Muldoon into an off-label use case, claiming that, while all of the “individual components” were marketed with the FDA’s blessing, “they were not at that time FDA-approved to be used as a system.”  Id. at *7.  Big whoop.  As we have discussed many times, off-label use is perfectly legal and not a basis for a medical malpractice claim.  Plaintiff, however, threw up enough smoke to confuse the court into thinking that the relevant FDA process – pre-market approval versus §510(k) clearance – made a difference in a medical malpractice case.  Id. (referencing a “dispute whether plaintiff’s hip replacement used §510(k)-approved or PMA-approved devices”).

The relevant FDA process would matter if a manufacturer were arguing preemption (see, for example the component cases in our PMA preemption scorecard).  But whether a device had FDA approval versus clearance has nothing to do with the medical standard of care.  Preemption is simply irrelevant.  What matters is whether off-label use is some sort of tort.  It isn’t – in California or anyplace else.

“Physicians may, in their professional judgment, prescribe a drug [or device] for a purpose other than that for which it has been approved by the FDA.”  T.H. v. Novartis Pharmaceuticals Corp., 407 P.3d 18, 24 n.1 (Cal. 2017) (citation omitted).  “Off-label use of a drug [or device] is legal, and is generally based on published scientific reports purporting to show a beneficial effect of the drug in such indications or patient populations.”  Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1230 n.2 (9th Cir. 2017) (applying California law).  “Nothing in the MDA prevents a doctor from using a medical device in an off-label manner.”  Coleman v. Medtronic, Inc., 167 Cal. Rptr.3d 300, 307 (Cal. App. 2014).  Off-label “surgeries ha[ving] a therapeutic purpose” are not “experimental” under California law.  Perez v. Nidek Co., 711 F.3d 1109, 1115 (9th Cir. 2013).  We could go on for pages and pages with similar precedent, but we’ll stop here.  The relevant law on medical malpractice and off-label use is collected in Bexis’ 2021 law review article, available here.  Unfortunately, plaintiff sowed sufficient confusion in Muldoon II for his bogus malpractice claim to survive.

But all the smoke and mirrors in the world could not save plaintiff’s battery claim in Muldoon II:

The operative question concerns whether the patient has consented to the procedure that actually occurred.  Here, the complaint clearly confirms that plaintiff consented to hip replacement surgery. . . .  At bottom, plaintiff alleges that [the surgeon] performed the agreed-upon procedure − a hip replacement − and withheld information. . . .  That sounds in negligence.

Id. at *10.

Between the plaintiff sleeping on his purported rights until encountering MDL solicitation, and the eight years Muldoon sat in MDL suspended animation, Muldoon is already one of the most dilatory pieces of litigation we have ever seen.  Unfortunately, the dance marathon continues.