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Allphin v. Peter K. Fitness, LLC

United States District Court, N.D. California, San Jose Division

January 28, 2015

SONDRA J ALLPHIN, Plaintiff,
v.
PETER K. FITNESS, LLC, et al., Defendants

For Sondra J Allphin, Plaintiff: Craig Evan Needham, LEAD ATTORNEY, Kirsten M. Fish, Needham, Kepner Fish & Rickard LLP, San Jose, CA.

For Peter K. Fitness, LLC, Defendant, Third party plaintiff, Cross-defendant: Colette F Stone, LEAD ATTORNEY, Stone and Associates, Walnut Creek, CA; Juliet MacMillin Lompa, LEAD ATTORNEY, Stone & Associates, Walnut Creek, CA.

For Peter T Kofitsas, Defendant, Third party plaintiff, Cross-defendant: Colette F Stone, LEAD ATTORNEY, Stone and Associates, Walnut Creek, CA; Juliet MacMillin Lompa, LEAD ATTORNEY, Stone & Associates, Walnut Creek, CA; Michael G. Waughtel, LeClairRyan, San Francisco, C.

For Fulco Fulfillment, Inc, Defendant: Charles Henry Horn, LEAD ATTORNEY, Michael G. Waughtel, LeClairRyan LLP, San Francisco, CA.

For Ideal Jacobs Corporation, Third party defendant, Cross-defendant: Sharon Lynn Hightower, LEAD ATTORNEY, Ericksen Arbuthnot Kilduff Day et al, San Jose, CA.

For Ideal Jacobs Corporation, Third party defendant: James Eugene Curry, LEAD ATTORNEY, Sheppard Mullin Richter Hampton LLP, Los Angeles, CA.

For Ideal Jacobs Malaysia Corporation, Third party defendant, Cross-defendant: James Eugene Curry, LEAD ATTORNEY, Sheppard Mullin Richter Hampton LLP, Los Angeles, CA.

For Fulco Fulfillment, Inc, Cross-claimant: Scott Allen Buell, LEAD ATTORNEY, Law Ofc Melissa M. Ballard, Santa Ana, CA; Michael G. Waughtel, LeClairRyan, San Francisco, CA.

For Fulco Fulfillment, Inc, Cross-claimant: Michael G. Waughtel, LeClairRyan, San Francisco, CA.

Page 988

ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

[Re: ECF 136]

BETH LABSON FREEMAN, United States District Judge.

This is a strict products liability action brought by Plaintiff against several Defendants, alleging that a defective exercise resistance band unexpectedly broke while she was properly using it, causing her serious injury. Plaintiff has been diagnosed by her treating doctors, resident at Stanford Hospitals and Clinics as well as

Page 989

Palo Alto Medical Foundation (" PAMF" ), with Complex Regional Pain Syndrome Type I (" CRPS-I" ), which she describes as " a debilitating condition that results in near constant, severe pain that affects a victim's limbs and makes touching or moving those limbs seem intolerable." Mot. at 1. As a result of her injury, Plaintiff contends that she has been unable to return to work as a trusts and estates attorney. See id.

Defendants Fulco Fulfillment (" Fulco" ), Peter Kofitsas, and Peter K. Fitness have asserted affirmative defenses which allege, among other things, that they are entitled to apportionment of responsibility for non-economic damages, if any are found by the jury, caused by Plaintiff's treating doctors' medical malpractice. Defendants' affirmative defense is premised on their claim that the diagnosis of CRPS-I in Plaintiff, and the treating doctors' corresponding treatment of Plaintiff consistent with that diagnosis, was malpractice. In support of this medical malpractice affirmative defense, Defendants have utilized the testimony and reports of an expert, Dr. Jose Ochoa, who contends that Plaintiff's treating doctors have committed malpractice by " failing to properly diagnose Plaintiff with a pseudoneurological condition . . . rather than CRPS-I." Opp. at 1. Dr. Ochoa does not believe that CRPS-I is a valid medical diagnosis, despite uniform endorsement of the diagnosis in the pain management community.

Plaintiff now seeks summary adjudication on Defendants' medical malpractice defense, and has framed her motion as to a single issue: " Defendants cannot establish that any of Plaintiff's treating healthcare providers committed medical malpractice by a preponderance of the evidence and as such, there can be no apportionment of damages to these nonparty healthcare providers at trial." See ECF 151 at 2. Plaintiff argues that Defendants' evidence, including the testimony and expert reports of Dr. Ochoa, fails to make out a prima facie case for medical malpractice under California law, and as such that these Defendants cannot seek apportionment of harm for Plaintiff's injuries to her treating doctors as joint tortfeasors.[1]

Plaintiff therefore requests that the Court grant partial summary judgment and thus deny Defendants the ability to utilize two jury instructions -- CACI 406 regarding " Apportionment of Responsibility" and CACI VF-402 regarding " Negligence -- Fault of Plaintiff and Others at Issue" -- with regard to any nonparty healthcare provider. See Reply at 12.

Having reviewed the briefing and oral argument of the parties, the Court GRANTS Plaintiff's motion, for the reasons set forth below.

I. BACKGROUND

A. Procedural History

Plaintiff filed suit in Santa Clara County Superior Court against Defendants Peter K. Fitness, Peter Kofitsas, and Fulco Fulfillment on February 13, 2013, alleging a single cause of action for strict products liability.[2] On March 21, 2013, Fulco answered. See Fish Decl. Exh. A. On ...


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