United States District Court, E.D. California
RUBEN B. MERANCIO and LUPE MERANCIO, Plaintiffs,
SMITH & NEPHEW, INC. and DOES 1- 100, inclusive, Defendants.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT (DOC. NO.
matter is before the court on defendant's motion for
summary judgment, filed January 24, 2017. (Doc. No. 25.) Oral
argument on that motion was heard by the court on March 21,
2017. Attorney Edward Chatoian appeared on behalf of
plaintiffs, and attorney John Shaw appearing on behalf of
defendant. For the reasons set forth below, defendant's
motion will be granted.
filed a form complaint on June 4, 2014 in Fresno County
Superior Court in which they indicated this is a products
liability/personal injury action. (Doc. No. 1-1 at 6.) The
action was removed to this federal court by defendant on May
27, 2015 on the basis of diversity jurisdiction under 28
U.S.C. § 1332. (Doc. No. 1.) This court has jurisdiction
pursuant to 28 U.S.C. §§ 1332 and 1446.
plaintiffs filed a form complaint in state court and did not
amend the complaint following removal of the action to
federal court, neither factual details concerning
plaintiffs' claimed injuries nor specific legal theories
of liability have been alleged in any detail. A brief summary
of the claims contained in the joint status report filed by
the parties with the court shortly after removal indicates
that plaintiff Ruben Merancio seeks compensatory damages
based on allegedly defective artificial knee manufactured by
defendant and implanted in him on June 4, 2012. (Doc. No. 10
at 2.) Ultimately, on summary judgment, plaintiffs have
agreed with defendant's characterization of their claims
as being the following: “(1) Strict Products Liability
for Design Defect; (2) Strict Products Liability for
Manufacturing Defect; (3) Breach of Implied Warranty; (4)
Negligence, and (5) Loss of Consortium.” (Doc. No. 27
at ¶ 26.)
opposing the pending summary judgment motion plaintiffs have
presented no substantive evidence concerning the merits of
their claims. Rather, plaintiffs' opposition is
premised solely on objections to certain portions of the
evidence offered by defendant in support of its motion for
summary judgment. Moreover, plaintiffs' objections to
defendant's evidence are premised almost solely on
purported violations of rules governing discovery. Because
the court finds plaintiffs' objections to be meritless
for the reasons explained below, the court treats
defendant's statement of facts as undisputed.
Defendant's separate statement of uncontroverted facts,
as supported by the exhibits submitted with that statement,
reflect the following. (See Doc. No. 25-1, et
Ruben Merancio is approximately 61 years old, and previously
worked at the Wine Group Winery as a filter operator from
September 1998 to 2014. Plaintiff Lupe Merancio has been Mr.
Merancio's wife for over 25 years. Mr. Merancio underwent
total knee arthroplasty-a surgical replacement of the knee
joint-on his left knee on June 5, 2006. Beginning in 2009,
Mr. Merancio again began having problems with his left knee,
and was ultimately advised by Dr. Kevin Lester that
non-surgical treatments would not help the condition. Mr.
Merancio thereafter had revision surgery performed by Dr.
Lester on his left knee on June 4, 2012. During that surgery,
a knee system called the “Legion System, ” which
was manufactured by defendant, was implanted to replace the
artificial knee that had been implanted in 2006.
follow-up medical appointments, Dr. Lester reviewed X-rays
from both June 19, 2012 and October 16, 2012, which revealed
no complications or indications that the newly implanted
device or surgery had failed. Nevertheless, Mr. Merancio
claimed he experienced pain in that knee following this 2012
surgery, and sought a second opinion in 2013 from a Dr.
Thomas. Dr. Thomas advised plaintiff that he needed another
revision surgery, which Dr. Thomas performed on October 28,
2013. As of August 9, 2016, Mr. Merancio was no longer
experiencing any problems with his left knee. However, the
only evidence supporting plaintiffs' claims against
defendant Smith & Nephew, Inc.-disclosed to defendants
pursuant to a discovery request served on plaintiffs'
counsel -appears to be that plaintiff Mr. Merancio has stated
merely he “was told the hardware inserted in his knee
failed.” (Doc. No. 25-11 at 4.) The discovery response
provided by plaintiffs specifies neither who told Mr.
Merancio the artificial knee used in his 2012 replacement
surgery had failed nor when he was told that fact.
part, defendant has presented the following evidence in
support of its pending motion. Defendant located the lot
numbers for the component pieces of the Legion System used in
Mr. Merancio's 2012 knee revision. It determined these
lot numbers were inspected during the manufacturing process
and were found to be compliant with defendant's standard
operating procedures and quality control guidelines. Further,
defendant retained Dr. Ian C. Clarke as an expert witness,
who specializes in the mechanical and bio-engineering aspects
of orthopedic devices. Dr. Clarke determined there was no
evidence suggesting that the Legion components manufactured
by defendant and used in Mr. Merancio's 2012 knee
revision surgery were involved in the apparent ultimate
failure of that procedure.
judgment is appropriate when the moving party “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
summary judgment practice, the moving party “initially
bears the burden of proving the absence of a genuine issue of
material fact.” In re Oracle Corp. Sec.
Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
The moving party may accomplish this by “citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions,
interrogatory answers, or other materials” or by
showing that such materials “do not establish the
absence or presence of a genuine dispute, or that the adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). When the
non-moving party bears the burden of proof at trial,
“the moving party need only prove that there is an
absence of evidence to support the nonmoving party's
case.” Oracle Corp., 627 F.3d at 387 (citing
Celotex, 477 U.S. at 325.). See also Fed.
R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be
entered, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial. See Celotex, 477 U.S. at
322. “[A] complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”
Id. In such a circumstance, summary judgment should
be granted, “so long as whatever is before the district
court demonstrates that the standard for entry of summary
judgment . . . is satisfied.” Id. at 323.
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. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). In either event, “[a] trial court
can only consider admissible evidence in ruling on a motion
for summary judgment.” Orr v. Bank of America, NT
& SA, 285 F.3d 764, 773 (9th Cir. 2002). “In
evaluating the evidence to determine whether there is a
genuine issue of fact, ” the court draws “all
reasonable inferences supported by the evidence in favor of
the non-moving party.” Walls v. Central Costa
County Transit Authority, 653 F.3d 963, 966 (9th Cir.
2011). Ultimately, 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
Purported Violations of Discovery Rules Do Not Bar
Consideration of Defendant's Evidence on Summary
noted above, plaintiffs oppose defendant's motion only on
the grounds that certain evidence offered by defendant in
support of its motion should be stricken and not considered
by the court because of defendant's failure to comport
with certain rules governing discovery. (Doc. No. 26 at 2-4.)
More specifically, plaintiffs maintain: (1) the declaration
of Paul Crabtree, an employee of defendant's, should be
stricken because defendant “failed to make timely
Initial Disclosures and failed to timely produce
documents”; (2) the declaration of Dr. Clarke,
defendant's retained expert, should be stricken because
he failed to attach the facts and data considered in forming
his opinion to his declaration and because the list of cases
in which he was an expert was not disclosed; (3) Dr.
Clarke's opinion should be stricken because it was based
in part on an eleven-year-old study that did not include
defendant's components; and finally, (4) Dr. Clarke's
opinion should be stricken because he is not a medical
doctor. (Id.) These objections to the declarations
of Mr. Crabtree and Dr. Clarke will be addressed in turn
Declaration of Paul Crabtree
represent that defendant's initial disclosures were
untimely in this case, and therefore Paul Crabtree's
declaration should be struck. (See Doc. No. 29 at
¶¶ 8-10.) According to plaintiff, defendant's
initial disclosures were due on October 28, 2015, which is
the date plaintiffs' initial disclosures were served.
(Doc. No. 29 at ¶ 8.) When plaintiffs' counsel
notified defense counsel on March 3, 2016 that he had not
received any initial disclosures, defense counsel promptly
responded by e-mail and then followed up with a hard copy of
defendant's initial disclosures on March 7, 2016. (Doc.
No. 29 at ¶¶ 9, 10.) Defense counsel supplemented
defendant's initial disclosures on July 8, 2016, July 22,
2016, September 14, 2016, October 17, 2016, and November 15,
2016. (Doc. No. 29 at ¶¶ 14, 15, 17, 19, 20, 23.)
Under this court's amended scheduling order, non-expert
discovery in this case closed September 11, 2016. (Doc. No.
total of plaintiffs' argument here is that “the
declaration of Paul Crabtree should be disregarded and
stricken in it's [sic] entirety pursuant to FRCP
26(a)(1)(C) and 26(a)(1)(E) and 26(g)(1)(A) and Rule 37(a)(4)
and 37(c)(1) on the grounds that Defendant failed to make
timely Initial Disclosures and failed to timely produce
documents.” (Doc. No. 26 at 2.)
disclosures under Rule 26 are due “at or within 14 days
after the parties' Rule 26(f) conference unless a
different time is set by stipulation or court order.”
Fed.R.Civ.P. 26(a)(1)(C). Parties must make their initial
disclosures based on the information they have, and are not
excused from disclosure requirements simply because they have
not fully investigated the case. Fed.R.Civ.P. 26(a)(1)(E).
That is, at least in part, because Rule 26(e) also requires
the supplementation of any initial disclosures.
bars parties from using evidence that was improperly
disclosed unless the failure to follow the rule was harmless.
Fed.R.Civ.P. 37(c)(1) (disallowing use “unless the
failure was substantially justified or harmless”).
Here, defendant represents it complied with Rule 26, though
it does not state when its initial disclosures were provided
to plaintiffs' counsel. (Doc. No. 30 at 7.) Nevertheless,
defendant notes it disclosed the identity of Crabtree in a
supplemental initial disclosure well prior to the close of
discovery in this action, and that Crabtree was ultimately
deposed by plaintiffs. (Doc. No. 29-13 at 3 (disclosing
Crabtree in supplemental disclosures dated July 5, 2016);
Doc. No. 29-14 at 2 (email from plaintiff's counsel's
office seeking to schedule deposition of Crabtree).)
Plaintiffs have made no showing that they were prejudiced by
the timing of defendant's disclosures. Indeed, plaintiffs
have made no allegations of any harm- not even general,
vague, and conclusory ones-flowing from defendant's
allegedly belated disclosures. Plaintiffs' counsel
confirmed at oral argument that Crabtree was deposed. See
El Ranchito, Inc. v. City of Harvey, 207 F.Supp.2d 814,
818 (N.D. Ill. ...