Renee Annette Richards, individually, and as executrix of the Estate of Robert E. Richards, deceased, Plaintiffv.Johnson & Johnson, Inc.; Cordis Corporation; and Does 1-100, Defendants
MEMORANDUM-DECISION AND ORDERI. INTRODUCTION Plaintiff Renee Annette Richards brings this action individually and as the executrix of the estate of her late husband, Robert E. Richards, alleging that his death was caused by a defective inferior vena cava (“IVC”) filter designed, manufactured, and sold by Johnson & Johnson, Inc. (“J&J”), Cordis Corporation (“Cordis”), and one hundred unidentified Doe defendants. (See generally Dkt. No. 64). Cordis has moved, under Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the claim for breach of express warranty (Count V) asserted in Plaintiff’s Second Amended Complaint (the “SAC”). (Dkt. No. 66). For the reasons discussed below, Cordis’ motion is denied.1 II. STANDARD OF REVIEWTo survive a motion to dismiss under Rule 12(b)(6), “a complaint must provide ‘enough facts to state a claim to relief that is plausible on its face.’” Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must provide factual allegations sufficient “to raise a right to relief above the speculative level.” Id. (quoting Bell, 550 U.S. at 555). The Court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff’s favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).III. DISCUSSIONDefendant Cordis moves to dismiss Plaintiff’s express warranty claim on the grounds that Plaintiff failed to provide presuit notice of the breach of warranty and failed to allege the substantive elements of the claim. The Court assesses these arguments in turn below.A. Express Warranty Claim (Count V)1. Presuit NoticeTo recover on a warranty claim under the New York Uniform Commercial Code (“UCC”), a “buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” N.Y. U.C.C. §2-607(3). The policies underlying the notice requirement include: (1) facilitating settlement through negotiation; (2) giving the seller access to the facts to investigate the claim; (3) allowing the seller to avoid future defects; and (4) protecting the seller from stale claims. See 1 Barkley Clark & Christopher Smith, The Law of Product Warranties §9.3, Westlaw (database updated Nov. 2017); Tomasino v. Estee Lauder Co. Inc., No. 13-cv-4692, 2015 WL 4715017, at *3, 2015 U.S. Dist. LEXIS 103991, at *8-9 (E.D.N.Y. Aug. 7, 2015). The notice requirement is “designed to defeat commercial bad faith, not to deprive a good faith consumer of his remedy.” N.Y. U.C.C. §2-607 cmt. 4.The comments to the UCC specify the level of detail required:The content of the notification need merely be sufficient to let the seller know that the transaction is still troublesome and must be watched. There is no reason to require that the notification which saves the buyer’s rights under this section must include a clear statement of all the objections that will be relied on by the buyer, as under the section covering statements of defects upon rejection (§2-605). Nor is there reason for requiring the notification to be a claim for damages or of any threatened litigation or other resort to a remedy. The notification which saves the buyer’s rights under this Article need only be such as informs the seller that the transaction is claimed to involve a breach, and thus opens the way for normal settlement through negotiation.Id.; see also Cliffstar Corp. v. Elmar Indus., Inc., 254 A.D.2d 723, 724 (4th Dep’t 1998). “[T]he sufficiency and timeliness of the notice is generally a question for the jury.” Tomasino v. Estee Lauder Cos. Inc., 44 F. Supp. 3d 251, 260 (E.D.N.Y. 2014).Plaintiff alleges that Defendants “were made aware and received notice of their breach of…warranties via adverse event reports received on March 16, 2015 and March 27, 2015, as well as other notices of the breach.” (Dkt. No. 64,131).2 In her opposition to the motion to dismiss, Plaintiff submitted an adverse event report dated March 16, 2015, notifying “Cordis A Johnson and Johnson Co” of a patient’s death on February 19, 2015 after a TrapEase IVC Filter or a component of the device had migrated to the right ventricle of the patient’s heart. (Dkt. No. 68-1). Plaintiff argues that this adverse event report “clearly indicates that Cordis was aware of the injury and death of Mr. Roberts as early as March 2015, well before the filing of this lawsuit.” (Dkt. No. 68, at 9). Cordis objects to the Court’s consideration of this report. A complaint, however, “is deemed to include…materials incorporated in it by reference, and documents that, although not incorporated by reference, are ‘integral’ to the complaint.” Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (citation omitted). A document is “integral” to the complaint when the complaint “relies heavily upon its terms and effect.” DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010) (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)). Here, the SAC explicitly refers to and relies upon the March 16, 2015 adverse event report as notice of the breach of warranty. (Dkt. No. 64,131). The report is thus incorporated by reference into the SAC and may be considered by the Court. See Sira, 380 F.3d at 67.Cordis argues that, in any event, the adverse event report is insufficient because the Plaintiff herself had to give notice. The Court notes that neither party has cited any case considering the sufficiency of notice under §2-607(3) when the defective product is alleged to have caused the death of the buyer.Plaintiff contends that, even if the allegations in the SAC regarding notice were deemed insufficient, no notice was necessary because “the UCC requirements are not necessarily applicable to claims regarding products liability,” asserting that there are, for example, exceptions to the notice requirement “where the product is for retail sale3 or where the product is intended for human consumption.” (Dkt. No. 86, at 6). Citing Fischer v. Mead Johnson Labs., 41 A.D.2d 737 (2d Dep’t 1973), Neri v. R.J. Reynolds Tobacco Co., No. 98-cv-371, 2000 WL 33911224, 2000 U.S. Dist. LEXIS 22223 (N.D.N.Y. Sept. 28, 2000), and Tomasino v. Estee Lauder Cos., No. 13-cv-4692, 2015 WL 4715017, 2015 U.S. Dist. LEXIS 103991 (E.D.N.Y. Aug. 7, 2015), Plaintiff argues that the rationale underlying New York case law excusing the notice requirement is based on a distinction between claims grounded in tort, as opposed to claims based on contract.Plaintiff’s argument is not without force. In Fischer, for example, the Appellate Division ruled that the notice requirement did not apply to claims of personal injury involving an oral contraceptive because requiring such notice for a complaint “grounded on tortious elements…on account of a defect of edible goods in a retail transaction would strain the rule beyond a breaking point of sense or proportion to its intended object.” 41 A.D.2d at 737-38 (quoting Kennedy v. Woolworth Co., 205 A.D. 648, 650 (1st Dept. 1923)). In Kennedy, the court ruled that no presuit notice was necessary in a father’s action against a retailer for the injury his daughter sustained when she ate candy sold by the retailer. See 205 A.D. at 648-50. And in Tomasino, the court summarized the rationale of this case law as follows: “regardless of the stated theory of recovery, there is no purpose in imposing a requirement relating to contracts on cases that essentially sound in tort law.” 2015 WL 4715017, at *4. As the court further noted, “every case of which I am aware in which courts implementing New York law declined to apply the notice requirement to a breach of contract claim amounted to a tort claim in which the plaintiff suffered some personal injury.” Because Tomasino’s damages were “entirely monetary and sound[ed] only in contract law,” the court found “no reason to excuse her from the procedural requirements of §2-607(3)(a).” Id.; see also 1 Michael Weinberger, New York Products Liability 2d §15:1, Westlaw (database updated Apr. 2018) (explaining that “[p]ersonal injury actions for breach of express warranty are usually viewed differently from commercial actions,” and noting that “the requirement of notice to the defendant of the breach, applicable to commercial cases, has been held to be inapplicable to personal injury cases” (footnote omitted) (citing Fischer)).Cordis cites no New York authority rejecting this distinction.4 The distinct treatment of warranty claims in personal injury cases is found in other jurisdictions.5 In light of the allegations of notice in the SAC, the fact that the sufficiency of notice is generally a question for the jury, and the aforementioned authority declining to apply the notice requirement in personal injury actions, at this preliminary stage of the case, the Court declines to dismiss Plaintiff’s express warranty claim for lack of presuit notice.2. Substantive ElementsUnder the UCC, “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” N.Y. U.C.C. Law §2-313(1)(a). “New York breach of express warranty claims require (i) a material statement amounting to a warranty; (ii) the buyer’s reliance on this warranty as a basis for the contract with his immediate seller; (iii) the breach of this warranty; and (iv) injury to the buyer caused by the breach.” Babayev v. Medtronic, Inc., 228 F. Supp. 3d 192, 216 (E.D.N.Y. 2017) (quoting Avola v. La.-Pac. Corp., 991 F. Supp. 2d 381, 391 (E.D.N.Y. 2013)).First, Cordis argues that Plaintiff failed to plead reliance on any expressed warranty. (Dkt. No. 66-1, at 8). In the context of express warranty, however, reliance “requir[es] no more than reliance on the express warranty as being a part of the bargain between the parties.” CBS Inc. v. Ziff-Davis Publ’g Co., 75 N.Y.2d 496, 503 (1990). The requirement does not turn on “whether the buyer believed in the truth of the warranted information on the warranty…but ‘whether [it] believed [it] was purchasing the [seller's] promise [as to its truth].’” Id. (alterations in original) (quoting Ainger v. Mich. Gen. Corp., 476 F. Supp. 1209, 1225 (S.D.N.Y. 1979), aff’d, 632 F.2d 1025 (2d Cir.1980)). If reliance, so understood, is found, “the right to be indemnified in damages for its breach does not depend on proof that the buyer thereafter believed that the assurances of fact made in the warranty would be fulfilled”; it “depends only on establishing that the warranty was breached.” Id. at 503-504. Here, Plaintiff has alleged that Plaintiff’s decedent, through his physicians, purchased a Cordis TrapEase IVC filter from Cordis and that Cordis made certain representations about its filters in product documentation and advertisements, including that the filters were “designed to provide resistance to migration” and were “self-centering…to avoid filter titling.” (Dkt. No. 64,
