Anita Laux v. Mentor Worldwide, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANITA LAUX,
Plaintiff-Appellant,
v.
MENTOR WORLDWIDE, LLC,
Defendant-Appellee.
No. 17-56832
D.C. No. 2:16-cv-01026-ODW-
AGR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Submitted November 18, 2019**
Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.
Anita Laux appeals pro se from the district court’s summary judgment in her
diversity action alleging state law claims arising from alleged defects in her breast
implants manufactured by Mentor Worldwide, LLC. We have jurisdiction under
28 U.S.C. § 1291. We review de novo. Kohler v. Bed Bath & Beyond, LLC, 780
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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F.3d 1260, 1263 (9th Cir. 2015). We may affirm on any basis supported by the
record. Id. We affirm.
Summary judgment was proper for Mentor on each of Laux’s state law
claims because Laux failed to raise a genuine dispute of material fact as to whether
Mentor violated a Food and Drug Administration (“FDA”) requirement, and
therefore her state law claims are expressly preempted under the Medical Device
Amendments (“MDA”) to the Food, Drug, and Cosmetic Act. See Weber v.
Allergan, Inc., 940 F.3d 1106, 1111 (9th Cir. 2019) (“[F]or a state law claim
regarding a Class III medical device[, such as breast implants,] to survive express
preemption by the MDA, a plaintiff must establish that the defendant violated an
FDA requirement.”).
The district court did not abuse its discretion by excluding the opinions of
Laux’s proffered expert witnesses because their opinions failed to satisfy the
requirements of Federal Rule of Evidence 702. Wendell v. GlaxoSmithKline LLC,
858 F.3d 1227, 1231-32 (9th Cir. 2017) (setting forth standard of review and
admissibility requirements for expert opinion testimony under Rule 702, as
explained in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)); see also
Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)
(district court may exclude information by an expert witness “required to be
disclosed by [Federal Rule of Civil Procedure] 26(a) that [was] not properly

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disclosed”).
The district court did not abuse its discretion by denying Laux’s motion for
leave to amend her complaint because amendment would have caused an undue
delay, prejudiced Mentor, and been futile. See Desertrain v. City of Los Angeles,
754 F.3d 1147, 1154 (9th Cir. 2014) (setting forth standard of review and factors
for determining whether to grant leave to amend).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Laux’s motion to supplement the record on appeal is denied. See Gonzalez
v. United States, 814 F.3d 1022, 1031 (9th Cir. 2016) (“Absent extraordinary
circumstances, we generally do not permit parties to supplement the record on
appeal.”).
Mentor’s motion to strike references to portions of deposition transcripts that
are not part of the record on appeal is denied as unnecessary.
AFFIRMED.

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