Muldoon Dismissed – The End of an Error?

We’ve written before about the long-running Muldoon v. DePuy Orthopedics lawsuit.  For one thing, it’s been around forever – its facts are almost as old as the Blog.  As we stated here:

Muldoon . . . is a suit over hip-replacement surgery conducted in 2007.  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.  It appears that nothing at all happened during those years . . . [until] 2023, when the case was ultimately remanded, 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.

(citations and quotation marks omitted).

Finally, 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 end, the plaintiff didn’t even put up a fight.  Faced with the defendant’s latest dismissal motion, “[p]laintiff has declined to file any opposition.”  Id. at *2.  What was at stake this time were the claims that had survived the defendant’s first dismissal motion against the plaintiff’s absurdly excessive 18-count post-MDL amended complaint.  We had some words to say about that complaint as well:  “It is a dog’s breakfast.  Or it is what our dogs deliver to our yard right after consuming their breakfast.”

All the claims that the product liability defendants (medical provider defendants had previously won dismissal) moved against were dismissed.  Those include:

Express Warranty

California privity rules in both express and implied warranty litigation are a notorious morass, with more exceptions and exceptions to exceptions than we have fingers to count them.  Muldoon held that “privity is required unless plaintiff adequately pleads California’s well-recognized exception wherein the manufacturer made claims directly to him on which he relied.”  2025 U.S. Dist. Lexis 34013, at *8.  Through ten years, three complaints, and the court’s most recent invitation to amend his complaint (after plaintiff claimed direct privity in a brief), plaintiff still had not pleaded the necessary facts.  Instead, he only asserted what his surgeon –  not the defendant manufacturer − had told him.  Id. at *9.  That wasn’t enough.  “Such third-party representations are insufficient to satisfy the exception to California’s privity requirement.”  Id.  That was it, too.  No more amendments:

[F]urther amendment would be futile. In opposition to the last motion to dismiss, plaintiff argued that he was in privity with the manufacturer and that he could amend his complaint to allege that he purchased the device directly from DePuy. Plaintiff failed to do so on amendment, and continued attempts to show privity with the manufacturer are likely to be futile. Plaintiff has similarly failed to identify any statements made by the manufacturer on which he relied, much less specific statements alleged with the requisite particularly necessary to state a claim.

Id. at *10.

Implied Warranty

Privity is also (ostensibly) an element of California implied warranty claims.  Id. at *11 (“It is settled law in California that privity between the parties is a necessary element to recovery on a breach of an implied warranty of fitness for the buyer’s use”) (citation and quotation marks omitted).  Once again, after claiming privity in a filed brief, he failed to plead it when given another chance.  Id. at *12.  Once again, the claim was dismissed with prejudice: 

In granting leave to amend . . ., the court permitted plaintiff to assert this cause of action again only if plaintiff alleged privity by “attach[ing] documentary proof of purchase in the form of an invoice, receipt, and/or specific details of payment.”  Plaintiff failed to do so, and the court concludes that further amendment would be futile.

Id. (citation omitted).

Fraud

Ditto. Plaintiff again alleged nothing more than supposedly receiving information from his surgeon.  Id. at *16-17.  Then he alleged, that the surgeon was the defendant’s “agent.”  Id.  But instead of asserting any facts to back that up, plaintiff made vague claims that his surgeon was in some sort of consulting role with the defendant, for which the surgeon had been paid “substantial sums of money.”  Id. at *16.  But boilerplate allegations like “each and every Defendant was the agent or employee of each and every other Defendant,” id.,  don’t cut it under Fed. R. Civ. P. 9(b), particularly when what this plaintiff improperly defined as one single defendant was, in fact, “five distinct entities.  Id. at *17.

[E]ach allegation concerning [the surgeon’s] statements merely asserts that he was acting as an agent of the defined multi-entity term . . . when making them − not any individual defendant.  Plaintiff’s pleading is inadequate because Rule 9(b) does not allow a complaint to merely lump multiple defendants together but requires plaintiffs to differentiate their allegations when suing more than one defendant and inform each defendant separately of the allegations surrounding his alleged participation in the fraud.

Id. (citation and quotation marks omitted).  Yet again, amendment was “futile” because, after all this time, the plaintiff still failed to “allege specific misrepresentations made by any [manufacturing]  Defendant” but only the surgeon’s statements.  Id. at *18.  The allegation “on behalf of” was a “bare legal assertion[] advancing a new theory of liability unsupported by amended factual allegations,” and the generalized claim of financial ties did not change that.  Id. at *9 n.2 & *19.

Negligent Misrepresentation

“For the same reasons plaintiff does not adequately allege an intentional misrepresentation cause of action, he fails to allege negligent misrepresentation with the specificity required by Rule 9(b).”  Id. at *19-20. Buh-bye.

RICO

RICO also requires Rule 9(b) “specific” pleading.  Id. at *21.  A decade after filing suit, plaintiff asserted nothing more than boilerplate “allegations of mail fraud and wire fraud as the applicable predicate acts.”  Id. at *20.  Sayonara.

[Plaintiff’s] allegations concerning the particular acts of mail and wire fraud are too general and lacking in detail to satisfy the heightened pleading requirements of Rule 9(b).  For example, the complaint does not allege the timeframe during which [the mail or wire fraud occurred].  Nor has plaintiff alleged the identities of those involved in any transmissions nor which defendant did which act.

Id. at *22.  Again, this was the end of the litigation line.  “Plaintiff has had multiple opportunities to cure the very deficiencies still present in his pleading.”  Id. at *24.  Indeed, he failed to plead facts even after the court “presented [him] with an explanation of the [previous complaint’s] deficiencies.”  Id.

Failure to Oppose Dismissal Motion

If you’re interested in the Local Rules of the Northern District of California, Muldoon also holds, with extensive discussion, that under the factors for Local Rule 7-3(a), the plaintiff’s failure to file a timely opposition, alone, also 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 came to shove the plaintiff couldn’t even muster a response, is yet another indictment of our slow and costly MDL system.  Muldoon is one more example of bogus cases that plaintiffs park in MDLs for many years, hiding in the weeds, in the hopes that sheer numbers alone will force settlement without the nonexistent merits of such cases ever being evaluated.  Had Muldoon not been bundled off to an MDL, where absolutely nothing was done it probably would not have lasted a year, had it even been filed at all.