The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT (Docs. 92, 154, 165, 172)
Pending before the Court is Plaintiff, Timothy Crayton's ("Plaintiff") Motion for Summary Judgment filed on December 30, 2009. Also pending before the Court is Defendant, Rochester Medical Corporation's ("ROCM" or "Defendant") Cross Motion for Summary Judgment filed on April 21, 2010. Upon a review of all of the pleadings, Plaintiff's Motion for Summary Judgment is DENIED. Defendant's Cross Motion for Summary Judgment is GRANTED.
II. Relevant Background *fn2
Plaintiff initially filed this action in the Superior Court of Kern County, California, on June 14, 2007 (Case No. S-1500-cv-261075). (Doc.1). The action was removed to this Court on September 7, 2007. (Doc. 1). Plaintiff is a wheelchair paralytic who is an inmate at Kern Valley State Prison ("prison" of "KVSP"). The matter arises from Plaintiff's allegations that he was injured when he used an Ultraflex Silicone Self-Adhering Male External Catheter ("Ultraflex catheter" or "catheter") manufactured by Defendant.
In an Amended Complaint filed on September 10, 2008, Plaintiff asserts that the catheter is inherently defective and dangerous because the glue of the condom is invisible, excessively strong, not water soluble, and unevenly distributed. (Doc. 34). Specifically, Plaintiff alleges that when he attempted to remove the catheter in March 2006, the glue tore the skin on his penis resulting in abrasions and the removal of patches of "pubic hair by the roots." (Doc. 34 at pg. 5).
Based on the above, Plaintiff alleges causes of action under California law for strict products liability, negligent products liability, fraudulent misrepresentations, and breach of implied warranty of fitness. Moreover, Plaintiff contends he has incurred hospital and medical expenses, a loss of earning capacity, and a loss of consortium including his "mating ability." Plaintiff is seeking $500,000.00 in compensatory damages, $1,000,000.00 in exemplary damages, punitive damages, and loss of earning capacity.
Pending before the Court is Plaintiff's Motion for Summary Judgment filed on December 30, 2009. *fn3 (Doc. 92, 93, 151). On January 26, 2010, Defendant filed an Opposition. (Docs. 111, 113-121). On May 3, 2010, Plaintiff filed a Motion to Strike Defendant's Opposition (Doc. 165), a Reply, and Requests for Judicial Notice. (Doc. 141, 167-170). On May 5, 2010, Defendant filed an Opposition to Plaintiff's Motion to Strike Defendant's Opposition. (Docs. 175-176).
Also pending before the Court is Defendant's Cross-Motion for Summary Judgment filed on April 21, 2010. (Docs. 154-161). On July 9, 2010, Plaintiff filed an opposition to the motion. (Docs. 190-195). Defendant filed a Reply on July 19, 2010. (Doc. 196). The Court has reviewed all of the documents listed above in rendering its decision. *fn4
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party [a]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
With regard to a plaintiff's motion for summary judgment, as the party with the burden of persuasion at trial, Plaintiff must establish "beyond controversy every essential element of its" his affirmative claims. S. Cal. Gas Co. v. City of Santa Ana , 336 F.3d 885, 888 (9th Cir. 2003) (quoting W. Schwarzer, California Practice Guide: Federal Civil Procedure Before Trial § 14:124-127 (2001)). The moving party's evidence is judged by the same standard of proof applicable at trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242 (1986).
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita , 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson , 477 U.S. at 248; Nidds v. Schindler Elevator Corp. , 113 F.3d 912, 916 (9th Cir. 1996), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Matsushita , 475 U.S. at 588; County of Tuolumne v. Sonora Community Hosp. , 263 F.3d 1148, 1154 (9th Cir. 2001).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." Giles v. Gen. Motors Acceptance Corp ., 494 F.3d 865, 872 (9th Cir. 2007). Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita , 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c). The evidence of the opposing party is to be believed, Anderson , 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita , 475 U.S. at 587 (citing United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962) (per curiam)). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).
Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita , 475 U.S. at 587 (citation omitted).
IV. Summary of Undisputed Material Facts *fn5
1. Prior to the invention and development of self-adhering male external catheters, external male urinary catheters or condom catheters were generally retained on a penis of an incontinent male with adhesive tape. Declaration of Anthony J. Conway dated April 14, 2010 ("Conway Dec'l) at ¶ 8. (Doc. 157). *fn6
2. If an incontinent male lacked sensation in his penis and put the tape on too tight, circulatory problems could occur.Id .
3. The self-adhering condom catheter eliminates the tape. Id .
4. Instead of using tape, the self-adhering condom catheters use a band of adhesive on the interior of the device. Id . at ¶ 9.
5. A band adhesive holds the device in place and, at the same time, seals it so as to avoid leaking. Id .
6. In order to function properly, there has to be sufficient amount of adhesive to hold the device in place and it must be sufficient to avoid leaking. Id . ¶ 17.
7. Mr. Conway is the primary inventor of the Ultraflex. Id . at ¶ 2.
8. The Ultraflex is used in the United States and in other countries where large numbers of users are uncircumcised men. Id . at ¶ 26.
9. ROCM manufactures the Ultraflex self-adhering male external catheter. ROCM manufactures three categories of self-adhesive catheters for distribution in the United States. They are the : (1) WideBand; (2) PopOn; and (3) Standard. Declaration of Robert Anglin ("Anglin Dec'l") dated April 8, 2010 at ¶ 6 (Doc. 158); (Doc. 34).
10. Ultraflex is a brand name for one of the "Standard" category of catheters. Anglin Dec'l at ¶ 6.
11. Since 1993, there have been over one hundred fifty-six million ROCM Standard male external condom catheters sold worldwide. Conway Dec'l at ¶ 26 (Doc. 157); Anglin Dec'l at ¶ 29 (Doc. 158).
12. Plaintiff is a wheelchair paralytic state prison inmate who is incontinent. His medical condition requires the use of condom catheters, due to his inability to control his urine flow. Plaintiff is not circumcised. Declaration of Timothy Crayton in support of Motion for Summary Judgment dated December 18, 2009. (Doc. 93 at Exhibit 1).
13. On March 20, 2006, Plaintiff was examined by a medical professional at the prison and was diagnosed with active bleeding, pain, an injury to the skin flap, and swollen area in his pubic region. Plaintiff was medically cleared and released back to custody. Medical document dated March 20, 2006, entitled "Medical Report of Injury or Unusual Occurrence." (Doc. 93 at Exhibit 7 at pg. 47; Doc. 118 at Exhibit 4, pgs. 1-2; Doc. 160 at Exhibit 4, pgs. 1-2).
14. On March 20, 2006, Plaintiff submitted a Medical Care Service
Request Form to
refill his medication, Tolnaftate, for "fungus" and "jock rash."
*fn7 (Doc. 118-1 at Exhibit 3, pgs. 1-2;
Doc. 160-3 at Exhibit 3 at pgs. 1-2).
15. Plaintiff claims adhesive on an Ultraflex catheter he used on March 20, 2006 caused the injuries to his penis. Amended Complaint. (Doc. 34 at pgs. 4-5).
16. On March 21, 2006, Plaintiff submitted a Health Services Request Form and stated, he "need[ed] to see doctor for stronger pain pills and no-glue condoms. I followed your instructions put the ointment on my penis skin rips and on the 4 x 4 pads before taping it to the rips [sic] area - hurts like hell when the wrapping comes off with still a little bleeding." Health Care Services Request Form dated March 21, 2006. (Doc. 93 at Exhibit 6, pg. 43; Doc. 118 at Exhibit 5, pg. 2).
17. Mr. Crayton's medical records for March 20, 2006 and March 21, 2006 do not indicate the injuries to his pubic area were the result of the use of a condom catheter. *fn8
18. Mr. Crayton's medical records make no mention of use of the Ultraflex or any type of catheter on March 20, 2006.
19. On February 27, 2007, Plaintiff received a first level response to his appeal filed with the Department of Corrections and Rehabilitation. The appeal issue presented was that Plaintiff filed several written requests that he be provided with non-glue condoms in the correct size. Plaintiff indicated that he had found a way to remove the glue from the condoms but that the size of the condoms were incorrect. On February 27, 2007, Plaintiff was provided with correct sizes of the glue-on condom. Memorandum from the Department of Corrections and Rehabilitation dated February 27, 2007 (Appeal Log, KVSP-0-0602127). (Doc. 93 at Exhibit 9, pg. 51). *fn9
20. On April 19, 2007, Plaintiff received a second level response to his appeal filed with the Department of Corrections and Rehabilitation. Plaintiff had requested non-glue condoms to avoid further injuries. Plaintiff's appeal was granted and the appeal was withdrawn. Memorandum from the Department of Corrections and Rehabilitation dated April 19, 2007. (Appeal Log, KVSP-0-06-3488). *fn10 (Doc. 93 at Exhibit 10, pg. 53).
21. On December, 5, 2005, prior to the injury in question, Plaintiff filled out a Health Care Services Request Form. On the form Plaintiff indicated that he "[Did] not require glue-on condoms. Please change to regular condoms ... The Ultraflex condoms have changed to super glue and extremely [sic] painful to remove from my 'Johnson.' Soaking the condoms in soapy water to remove the glue no longer works. No glue-on condoms." Health Care Services Request Form dated December 5, 2005. (Doc. 160-1, Defendant's Exhibit 1 at pg. 1-2).
22. Dr. DiLeo, M.D. is a doctor at KVSP. Plaintiff listed Dr. DiLeo as his "post-injury physician" in his Initial Disclosures. Plaintiff's Initial Disclosures at pg. 3 ...