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Alice Walsh v. Abbott Vascular

May 20, 2011

ALICE WALSH,
PLAINTIFF,
v.
ABBOTT VASCULAR, INC., DEFENDANT.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiff Alice Walsh ("Plaintiff") originally filed this action in Shasta County Superior Court, and Defendant Abbott Vascular ("Defendant") subsequently removed the case to this Court. Presently before the Court is Defendant's Motion for Summary Judgment, or in the Alternative, Motion for Partial Summary Judgment ("Motion"). For the following reasons, Defendant's Motion is denied without prejudice.*fn1

BACKGROUND*fn2

Plaintiff initiated this litigation against Defendant alleging causes of action for strict liability and negligence arising out of Defendant's design, manufacture and labeling of a "perclose device" used during a medical procedure undergone by Plaintiff. Plaintiff contends that a portion of the device, which is used for closing ruptured blood vessels, broke off during Plaintiff's surgery, necessitating a further surgery to remove the foreign object from her body. Through this action, Plaintiff seeks to recover for pain and suffering and economic damages suffered as a result of that additional operation.

According to Defendant, it manufactures the "ProGlide Suture Mediated Closure System" ("ProGlide"), which is a Class III prescription perclose device that has been approved by the Food and Drug Administration ("FDA") through a Pre-Market Approval ("PMA") process. Sales and marketing of the ProGlide are regulated by the FDA pursuant to the Medical Device Amendments ("MDA"), 21 U.S.C. § 360k(a), to the Food, Drug and Cosmetic Act. Devices approved through the PMA process, such as the ProGlide, are approved as to their specific design, testing, intended use, manufacturing methods, performance standards and labeling. Defendant asserts that the ProGlide device was used during Plaintiff's procedure and that its alleged failure gives rise to her claims.

Because approval of the ProGlide was granted pursuant to the FDA's PMA process, Defendant now argues by way of its instant motion that at least some of Plaintiff's claims are preempted by federal law. In opposition to Defendant's motion, Plaintiff requests a continuance pursuant to Federal Rule of Civil Procedure 56(d) so that Plaintiff may conduct additional discovery, discovery that may support the viability of at least some of her claims.

STANDARD

A. Motion for Summary Judgment, or Alternatively, Summary Adjudication Under Federal Rule of Civil Procedure 56.

The Federal Rules of Civil Procedure provide for summary judgment when "materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions interrogatory answers, or other materials" "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a), (c). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986).

Rule 56 also allows a court to grant summary adjudication on part of a claim or defense. See Fed. R. Civ. P. 56(a) ("A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense--on which summary judgment is sought."); see also Allstate Ins. Co. v. Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992). The standard that applies to a motion for summary adjudication is the same as that which applies to a motion for summary judgment. See Fed. R. Civ. P. 56(a), 56(c); Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998).

A party seeking summary judgment always 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.

Celotex Corp. v. Catrett, 477 U.S. at 323 (quoting Rule 56(c)).

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, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).

In attempting to establish the existence of this factual dispute, the opposing party must tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its ...


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