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Merancio v. Smith & Nephew, Inc.

United States District Court, E.D. California

May 23, 2017

SMITH & NEPHEW, INC. and DOES 1- 100, inclusive, Defendants.


         This matter is before the court on defendant's[1] 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.

         Plaintiffs 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.


         Because 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.)[2]

         In opposing the pending summary judgment motion plaintiffs have presented no substantive evidence concerning the merits of their claims.[3] 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 seq.)

         Plaintiff 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.

         During 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.

         For its 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.


         Summary 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.” Fed.R.Civ.P. 56(a).

         In 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.

         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. 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 (citations omitted).


         1. Purported Violations of Discovery Rules Do Not Bar Consideration of Defendant's Evidence on Summary Judgment

         As 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 below.

         a. Declaration of Paul Crabtree

         Plaintiffs 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. 17.)

         The sum 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)[4] 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.)[5]

         Initial 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.

         Rule 37 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. ...

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