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Erika Sanchez v. Stryker Corp.

May 2, 2012

ERIKA SANCHEZ, PLAINTIFF,
v.
STRYKER CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge

O

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [58] AND DENYING PLAINTIFF'S MOTION FOR RELIEF [70]

I.INTRODUCTION

Two motions are pending before this Court. The first is Stryker Corp.'s motion for summary judgment filed on March 16, 2012. (Dkt. No. 58.) Plaintiff filed her opposition on March 26, 2012, to which Stryker filed its reply on April, 2, 2012. (Dkt. Nos. 60, 65.) The Court heard the parties' oral arguments on April 16, 2012. Stryker seeks summary judgment on the basis that Plaintiff cannot proceed with her medical product liability case after the Court excluded the testimony of her expert witnesses. (See Dkt. No. 64.)

The second motion is Plaintiff's motion for relief under Federal Rule of Civil Procedure 60(b), filed on April 18, 2012. (Dkt. No. 70.) Stryker filed its opposition on April 30, 2012. (Dkt. No. 71.) Plaintiff requests relief from the Court's order excluding the testimony of her expert witness. Plaintiff argues relief should be granted based on two grounds-counsel's excusable neglect and counsel's gross negligence. After considering the papers filed in support of this motion, the Court deems this motion appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15.

II.BACKGROUND

In May 2008, Plaintiff underwent cranioplasty surgery and received a Stryker Custom Cranial Implant. (UF No. 1.) She later contracted an infection at the implant site, which she alleges resulted from the non-sterile condition of the Stryker implant. (UF No. 2.) Because of the injury, Plaintiff brought this action against Stryker for negligence, strict product liability, fraud and deceit, and negligent misrepresentation. (Compl. ¶¶ 97--158.)

The Court's August 23, 2011 scheduling order required the parties to disclose expert witness reports by January 9, 2012 and to provide rebuttal expert witness reports by January 30, 2012. (Dkt. No. 47 at 3.) Plaintiff failed to serve expert reports by the January 9, 2012 deadline. (UF No. 3.) On January 23, 2012, two weeks after the expert disclosure deadline, Plaintiff identified two expert witnesses, Dr. Bock and Mr. Christensen. (UF No. 4.) She served Bock's expert report on January 23, 2012 and later served Christensen's expert report on January 30, 2012. (UF Nos. 4--5.)

Stryker then brought a motion to preclude Plaintiff's expert testimony under Federal Rule of Civil Procedure 37(c). (Dkt. No. 50.) Because Plaintiff failed to establish an exception to Rule 37(c)'s exclusionary sanction, the Court granted Stryker's motion on March 28, 2012 and excluded Plaintiff's expert witnesses. (Dkt. No. 64.)

Stryker now moves for summary judgment, contending that Plaintiff cannot establish a prima facie case because California law requires causation in medical product liability lawsuits to be proven with expert testimony. Plaintiff argues otherwise, proposing that expert testimony is not required-circumstantial evidence is enough. Two days after the Court heard the parties' oral arguments on the summary judgment motion, Plaintiff brought a motion for relief from the Court's order excluding the testimony of Plaintiff's expert witnesses.

III.PLAINTIFF'S MOTION FOR RELIEF

The Court first addresses Plaintiff's motion for relief. Plaintiff raises two arguments. First, Plaintiff moves on the ground that counsel's calendaring error was excusable neglect-and under Rule 60(b)(1), a court may relieve a party from a final order on the basis of mistake, inadvertence, surprise, or excusable neglect. (Mot. 5--6.) Second, Plaintiff moves under Rule 60(b)(6)'s catch-all clause of "any other reason," suggesting that her counsel committed gross negligence and the exclusion would severely prejudice her, the faultless client. (Mot. 7--8.)

A. Rule 60(b) legal standard

Under Rule 60(b), the court may, upon motion of a party, withdraw or amend a final judgment or order. Kirby Forest Indus. v. United States, 467 U.S. 1, 18 (1984). Relief may be based upon mistake, inadvertence, surprise, excusable neglect, or for "any other reason justifying relief."*fn1 Fed. R. Civ. P. 60(b)(1), (6). But only final, appealable judgments and orders fall within the purview of Rule 60(b). United States v. Martin, 226 F.3d 1042, 1048 n.8 (9th Cir. 2000).

Plaintiff's Rule 60(b) motion is premature because an order imposing discovery sanctions under Rule 37 is not a final order. Cunningham v. Hamilton County, 527 U.S. 198, 200 (1999). Yet, in an abundance of caution, the Court will treat the Rule 37(c) exclusion order ...


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