                           NOT FOR PUBLICATION                           FILED
                                                                          JUN 21 2017
                    UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SUSAN FAUSTINO,                                 No. 15-56892

             Plaintiff-Appellant,               D.C. No.
                                                2:15-cv-04145
 v.
                                                MEMORANDUM*
ALCON LABORATORIES, INC.
(a division of NOVARTIS AG),

             Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    Gary Klausner, District Judge, Presiding

                             Submitted June 7, 2017**
                               Pasadena, California

Before: THOMAS, Chief Judge, REINHARDT, Circuit Judge, and KORMAN,***
District Judge.

      Susan Faustino appeals the dismissal with prejudice of her first amended



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9TH CIR. R. 36-3.
      **
            The panel unanimously finds this case suitable for decision without
oral argument. See FED. R. APP. P. 34(a)(2)(C).
      ***
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

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complaint against Alcon Laboratories. In summary, Faustino’s complaint alleged

that when she used eye drops manufactured by Alcon, she immediately suffered

intense pain in her eyes, and that this event caused her lasting discomfort. Based on

this experience, the complaint alleged a products liability claim, among other causes

of action. Nevertheless, it is devoid of specific allegations about what was wrong

with the eye drops, how they caused this injury, or what Alcon did wrong.

Consequently, the district court properly dismissed the first amended complaint with

prejudice. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(“[T]he pleading standard Rule 8 announces does not require detailed factual

allegations, but it demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (internal quotations omitted)). It also properly denied Faustino’s motion for

reconsideration, because the proposed second amended complaint attached to that

motion did not cure the problems with the first. See Fed. R. Civ. P. 59(e); Kona

Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (“[A] motion for

reconsideration should not be granted, absent highly unusual circumstances, unless

the district court is presented with newly discovered evidence, committed clear error,

or if there is an intervening change in the controlling law.”).

      Faustino argues that the district court should have inferred that her injuries

were “caused by a product defect existing at the time of sale or distribution,” because

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“the incident that harmed [her]: (a) was of a kind that ordinarily occurs as a result of

product defect; and (b) was not, in the particular case, solely the result of causes

other than product defect existing at the time of sale or distribution.” Restatement

(Third) of Torts: Prod. Liab. § 3 (1998). The inference described by the Restatement

may be appropriate “when the product unit involved in the harm-causing incident is

lost or destroyed in the accident,” such that “direct evidence of specific defect may

not be available.” Restatement (Third) of Torts: Prod. Liab. § 3, cmt. b (1998).

Under those circumstances, such an inference “may offer the plaintiff the only fair

opportunity to recover.” Id. Nevertheless, Faustino did not allege, in either her first

amended complaint or her proposed second amended complaint, that the remaining

eye drops or the vial were lost or destroyed in the accident. Her complaint therefore

did not allege facts sufficient to invoke the principle set forth in the Restatement.

      AFFIRMED.




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