AIMMY WILSON ET AL VS WELCH ALLYN INC ET AL

Tentative Rulings

Case Number: BC677924    Hearing Date: April 29, 2021    Dept: C

WILSON v. WELCH ALLYN INC.

CASE NO.: BC677924

HEARING: 04/29/21

#2

TENTATIVE ORDER

Defendant KAISER FOUNDATION HOSPITALS’ CCP §128.7 motion for sanctions is DENIED.

Opposing Party to give Notice.

Defendant KAISER FOUNDATION HOSPITALS (“Kaiser”) moves for sanctions pursuant to CCP §128.7(c) and (d) “on the grounds that Plaintiffs’ allegations against Defendant [Kaiser] have been presented for frivolous, improper, and unmeritorious purposes and lack evidentiary support. Specifically, [Kaiser] asserts the following: (1) Pursuant to § 128.7(b)(1), Plaintiffs and Plaintiffs’ counsel’s ‘advocating’ of Plaintiffs’ pleadings, specifically Plaintiff WILSON’s claims that she sustained a traumatic brain injury (TBI), cardiological irregularity, and stroke lack merit and are being presented primarily for an improper purpose, particularly to needlessly increase the costs of this litigation; and (2) Pursuant to § 128.7(b)(3), Plaintiff WILSON’s claims that she sustained a [TBI], cardiological irregularity, and stroke as a result of the incident are contentions which lack evidentiary support as evidenced by the medical records.” (Notice 2:3-16.)

In Opposition, Plaintiffs argue that Kaiser’s Motion should be denied because there exist factual disputes as to the extent of Plaintiff Wilson’s injuries.

“By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney…is certifying to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.” (CCP §128.7(b). CCP §128.7(c) provides: “If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may…impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.”

Kaiser’s Motion for 128.7 sanctions is DENIED. On April 27, 2021, this Court denied Kaiser’s Motion for Summary Judgment/Adjudication, specifically finding that there are triable issues of material fact on the issue of causation. Consequently, the Court does not find that Plaintiffs’ action is frivolous.

Case Number: BC677924    Hearing Date: April 27, 2021    Dept: C

WILSON v. WELCH ALLYN INC, et al.

CASE NO.:  BC677924

HEARING:  4/27/21

#6

TENTATIVE ORDER

I. Defendant Scale-Tronix, Inc.’s motion for summary judgment, or in the alternative, summary adjudication is GRANTED. Plaintiffs filed a Notice of Non-Opposition on 4/13/21.

II. Defendant Kaiser Foundation Hospitals (Doe 2)’s motion for summary adjudication is MOOT as to Issues 1-2, and 4, and DENIED as to Issues 3, 5 and 6. Because triable issues remain, motion for summary judgment is DENIED.

Plaintiffs to give NOTICE.

I. Scale-Tronix’s MSJ/MSA

Defendant Scale-Tronix, Inc.’s motion for summary judgment, or in the alternative, summary adjudication is GRANTED. Plaintiffs filed a Notice of Non-Opposition on 4/13/21.

II. Kaiser’s MSJ/MSA

Defendant Kaiser Foundation Hospitals (Doe 2) (“Kaiser”) moves for summary judgment, or alternatively summary adjudication, pursuant to CCP § 437c.

Evidentiary Objections

Plaintiffs’ Objections 102-131 to Wilson’s declaration are overruled.

The court declines to rule on Objections 1-101 and 132-245 because this court is not relying on either the Wohleglernter and Gold declarations. (CCP § 437c(q) - “the court need rule only on those objections to evidence that it deems material to its disposition of the motion.”)

First Amended Complaint

Plaintiff alleges that on 10/10/15, she was electrocuted during the course and scope of her employment as a nurse for Southern California Permanent Medical Group. Plaintiff was preparing to take the weight of a 21-day old baby when she noticed that the pediatric scale was not functioning properly. Plaintiff reached to adjust the power cord and felt an electric shock to her right side, causing Plaintiff to strike her head and lose consciousness. The FAC asserts causes of action for:

1. Products Liability – Design, Manufacturing & Assembly Defects

2. Products Liability – Failure to Warn

3. Premises Liability – Liability for Unsafe Conditions

4. Breach of Express Warranty

5. Negligence

6. Loss of Consortium

On 1/30/19, Kaiser Foundation Hospitals was named as Doe 2.

Standard

A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (CCP § 437c(p)(2).)

Issues 1, 2, and 4

On 4/8/21, Plaintiffs dismissed Kaiser from the 1^st, 2^nd, and 4^th causes of action. Therefore, summary adjudication of Issues 1, 2, and 4 is MOOT.

Issues 3, 5, and 6

Issue 3 (Premises Liability):

In the 3^rd cause of action for Premises Liability, Plaintiffs contend: 1) that the pediatric scale was provided to her for work-related use when it was known that it was in a “dangerous state”; 2) that there was no verification that the scale “was relieved of existing or reasonably foreseeable dangerous conditions; and 3) as a result Wilson suffered her alleged injuries while using the scale. (FAC, ¶¶ 22-25.)

Issue 5 (Negligence):

In the 5^th cause of action for Negligence, Wilson contends that Kaiser breached a duty “to exercise reasonable care in the use, control, management, repair, maintenance, ownership, supervision, set up, and operation of the subject pediatric scale and premises so as to ensure that the premises were properly maintained in compliance with applicable medical facility and instrumentality standards and other product care standards to reduce and/or eliminate the risk of injury to invitees, employees, consumers, or other users of the subject pediatric scale and premises.” (FAC, ¶ 31-33.)

“In order to state a cause of action for negligence, plaintiff must state facts showing that defendant had a duty to plaintiff, that the duty was breached by negligent conduct, and that the breach was the cause of damages to the plaintiff. Premises liability is a form of negligence… and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence… The fundamental inquiry is whether the duty of a landowner to exercise reasonable care in preventing injury to persons on the premises (Civ. Code, § 1714) required such measures.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611.)

Kaiser contends that Wilson’s alleged injuries were not the result of a shock that she received from using the scale or touching the power cord. Kaiser submits the following evidence:

· Roger Wilson, P.E., an electrical engineer, concluded that, although there was some damage to the green wire in the power cord, there was no exposed wire in the power cord that could have caused, or contributed to, the electric shock alleged by Wilson. (Defense Separate Statement (DSS) 29-30, 34-38, 40.)

The court finds that Wilson is a qualified expert, and that Kaiser has met its initial burden of production.

In opposition, Plaintiff submits the following evidence:

· The scale was resting on top of a metal cart. (Plaintiff’s Separate Statement (PSS) 4.)

· Wilson reached down to adjust the plug of the scale with her left hand, while her right hand was positioned on the bar of the cart. (PSS 8-9.)

· The cord of the scale was severely damaged exposing wiring. (PSS 10.)

· The exposed wires had electric current flowing through them due to electrical failure in the scale, the power cord, the plug or the outlet and the electrical circuit that powers that outlet. (PSS 16; Nicholas Decl., ¶10a, ¶11).

· Wilson was holding the cord in the damaged area with the plug inserted in the electrical outlet. (PSS 11.)

· Wilson was part of an uninterrupted electrical circuit between the energized outlet and the grounded metal cart or the metal handle of the grounded scale. (PSS 14.)

· Wilson suffered from electric burns with an exit wound to the palm of her right hand. (PSS 24, 39-41.)

· Wilson testified that she felt electric current going through her body, was shaking, and could not “let go” of the source of electrical current. (Wilson Depo., Vol. 1, 62:17-19; 63:5-15; 65:21-25)

· The only eyewitness to the event testified that Wilson touched the cord and it looked like she got electrocuted. (Deposition of the baby’s mother, 40:19-21.)

· Plaintiff suffered injuries. (PSS 25-35, 39-41.)

The court finds that triable issues exist regarding whether the cord and/or outlet were damaged; whether Wilson suffered from electrical shock as a result of using the equipment; whether Kaiser had a reasonable duty of care to inspect the equipment to ensure that it was functioning safely; and whether Kaiser could have avoided exposing Wilson to an unreasonable risk of harm.

Accordingly, summary adjudication of Issues 3 (Negligence) and 5 (Premises Liability) is DENIED.

Issue 6 (Loss of Consortium) is predicated on the previous negligence claims, and as such, summary adjudication of Issue 6 is also DENIED.

Because triable issues remain, motion for summary judgment is DENIED.

Case Number: BC677924    Hearing Date: March 9, 2021    Dept: C

WILSON v. WELCH ALLYN INC, et al.

CASE NO.:  BC677924

HEARING:  3/9/21 @ 1:30 PM

#6

TENTATIVE ORDER

Plaintiffs Wilson and McConkey’s motion to compel inspection of the subject outlet, wiring and panel and destructive testing of the subject electrical plug is DENIED.

Opposing Party to give NOTICE.

Plaintiffs Wilson and McConkey move to compel a visual inspection of the patient room and destructive testing of the scale’s electrical plug pursuant to CCP § 2031.300.

The party making the demand for inspection may move for an order compelling response to the demand. (CCP § 2031.310(b).)

The subject scale and electrical plug were previously inspected by the parties on 8/24/20 and 10/21/20. (Wilson Decl., ¶¶ 12, 16-17, 19-21.) Plaintiffs fail to demonstrate good cause for a further inspection.

Additionally, Plaintiffs seek to conduct destructive testing of the subject plug, which would destroy evidence. There is a pending worker’s compensation case related to the same incident. Plaintiff Wilson’s employer has not agreed to destructive testing. Based thereon, this court declines to allow further inspection and destructive testing of the scale plug.

Regarding the patient room, the room is not in the possession, custody, or control of Defendant Kaiser Foundation Hospitals. Rather, the property is in the control of Kaiser Foundation Health Plan, Inc.

Accordingly, the motion is DENIED. Plaintiffs are to reach out to Kaiser Foundation Health Plan, Inc. to obtain access.

To guide the parties in their discovery efforts, if Kaiser Foundation Health Plan, Inc. allows access, Plaintiffs’ inspection will be limited.

Plaintiffs seek to shut off the power, which will impact parts of the refrigeration system where a number of medications need to be stored, including vaccines. Additionally, any such site inspection and testing would disable computers and servers in the building, and shut off an array of medical equipment. Given the impact to the medical building, including medicines, vaccines, and medical equipment, this court declines to allow Plaintiffs to shut off the power to conduct their tests.

However, since Kaiser’s expert was allowed to use a “digital circuit analyzer” in the room (Reply, 3:12), Plaintiffs’ expert should be given the same opportunity.

Plaintiffs’ inspection of the room is limited to tests that would not require the power to be shut off.

Case Number: BC677924    Hearing Date: December 15, 2020    Dept: C

WILSON v. WELCH ALLYN INC, et al.

CASE NO.:  BC677924

HEARING:  12/15/20 @ 10:30 AM

JUDGE: OLIVAI ROSALES

#6

TENTATIVE ORDER

Defendant Kaiser Foundation Hospital’s motion to compel further responses from Plaintiff Aimmy Wilson is GRANTED in part and DENIED in part. Within 15 days, Plaintiff is ordered identify the doctor. The motion is DENIED as to the surveillance video.

Moving Party to give NOTICE.

Defendant Kaiser Foundation Hospital’s moves to compel further responses from Plaintiff Wilson pursuant to CCP § 2025.480.

“(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP § 2025.480.)

Identity of the Doctor:

Plaintiff testified that she suffers from PTSD when she was assaulted by a doctor when she was a minor. She testified that she reported the doctor when she was an adult to the Downey Police Department and Child Protective Services.

Plaintiff now refuses to identify the doctor. Plaintiff contends that the information is protected by her right of privacy.

However, the constitutional right of privacy is not absolute; it may be abridged when there is a compelling state interest. Inquiry into one’s private affairs will not be constitutionally justified simply because the inadmissible and irrelevant matter sought might lead to other relevant evidence. The burden is on the party seeking the constitutionally protected information to establish direct relevance. (Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.) Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a “careful balancing” of the compelling public need for discovery against the fundamental right of privacy. If an intrusion on the right of privacy is deemed necessary under the circumstances of a particular case, any such intrusion should be the “least intrusive means” to satisfy the interest. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1854-1855.)

The court finds that the requested information is directly relevant to Plaintiff Wilson’s claims of mental and emotional damages, and Plaintiff McConkey’s claims of loss of consortium.

Plaintiff claims to suffer from post traumatic stress disorder (“PTSD”) from the alleged incident at issue in this litigation. Plaintiff’s husband, Steven McConkey, alleges loss of consortium due to the impact of the incident, which has impacted their sexual relations.

However, Plaintiff’s medical records reveal she made complaints of sexual issues both prior to getting married to McConkey and prior to the subject incident. Additionally, Plaintiff’s medical records reveal that various healthcare providers suspect Plaintiff has somatoform disorder, factitious disorder, and/or is simply malingering. Plaintiff testified that she has “severe forms of disassociation, syncope” and her medical records reveal she has a history of becoming paranoid with her thinking.

Plaintiffs have placed their mental, emotional, and loss of consortium damages at issue in this case. Therefore, Defendant is entitled to information concerning prior injuries that may reduce damages and/or evidence that calls into question Plaintiffs’ veracity. To ensure the least intrusive means, a protective order will issue for attorney’s eyes only.

Surveillance Video:

Plaintiff claims that Kaiser harassed her by hiring a private investigator “multiple times” over the course of several years. Plaintiff testified that the individual has followed her in various cars that were different colors, tried to run over her husband and this individual left photographs for her depicting the subject incident in an envelope at her apartment complex. She claims this investigator is showed up at her parents’ house in January 2020 where she was and that he was wearing a “long gray wig” as a disguise. She asserted that she would obtain and provide her parents’ surveillance video.

Plaintiff now contends that her parents no longer have the surveillance video.

Although the court finds that Defendants may be entitled to the surveillance video, Defendants have made no Motion to Compel the Production of such. At the deposition, Defendants merely asked Plaintiff whether she still had a copy of the surveillance video— there is no evidence to suggest that any formal request for production has been made. Moreover, based on Plaintiff’s testimony, it does not appear as though Plaintiff is in possession, custody, or control of the surveillance video. Therefore, it appears as though the video may only be obtainable via subpoena directed towards Plaintiff’s non-party parents. If the surveillance video no longer exists, Plaintiff’s parents could submit a verification, attesting to such. Plaintiff does not have personal knowledge to attest to what is in her parents’ possession.

Accordingly, the motion is GRANTED in part, and DENIED in part. Within 15 days, Plaintiff is ordered identify the doctor. The motion is denied as to the surveillance video.

Case Number: BC677924    Hearing Date: November 17, 2020    Dept: C

WILSON v. WELCH ALLYN INC, et al.

CASE NO.:  BC677924

HEARING:  11/17/20 @ 1:30 PM

JUDGE: OLIVIA ROSALES

#8

TENTATIVE ORDER

I. Plaintiffs Wilson and McConkey’s motion to compel further responses to form interrogatories, set one to Defendant Kaiser Foundation Hospitals is DENIED as to No. 4.1, and GRANTED as to No. 12.1.

II. Defendant Scale-Tronix, Inc.’s motion to compel Defendant Kaiser Foundation Hospital’s further responses to special interrogatories (set one) is GRANTED.

Plaintiffs to give NOTICE.

I.¿Plaintiff’s Motion

Plaintiffs Wilson and McConkey move to compel Defendant Kaiser’s further responses to form pursuant to CCP § 2030.300.

CCP § 2030.300 allows a party to file a motion compelling further answers to interrogatories if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. The motion shall be accompanied with a meet and confer declaration. (CCP § 2030.300(b).)

Form Interrogatory No. 4.1

No. 4.1 requests whether there were any policies of insurance in effect at the time of the incident.

Defendant responded that it is insured for well above the amount of the claim being made. Further, during the meet and confer process, Kaiser informed Plaintiff that it is self-insured and thus, No. 4.1 does not apply.

The court finds Kaiser’s response is adequate.

Form Interrogatory No. 12.1

Plaintiff, a pediatric nurse, alleges that she was electrocuted when she touched a defective scale used to weigh babies.  No. 12.1 seeks the identity and contact information of the minor patient’s mother and visitors who may be percipient witnesses. 

The court finds that Plaintiff is entitled to contact information of the percipient witness, and that the State’s interest in the information outweighs the mother’s privacy interest.

Pursuant to H&S Code § 1280.15, CC § 56, and HIPAA, the court will issue an Order directing Kaiser to access the third party minor patient’s medical records to disclose the mother’s identity and contact information.

To ensure the least intrusive means, a protective order will issue to restrict the use of the information to counsel only, and the information cannot be disclosed to any other person, including Plaintiffs. The information may be used by counsel only for the purpose of preparing for, conducting, participating in the conduct of, and/or prosecuting and/or defending this action.

The court declines to impose sanctions. Kaiser is prohibited from accessing medical information of its patients without a court order. Thus, Kaiser’s refusal is reasonable and does not warrant sanctions.

II.¿Scale-Tronix, Inc.’s Motion

Defendant Scale-Tronix, Inc. moves to compel Defendant Kaiser’s further responses to special interrogatory No. 1 pursuant to CCP § 2030.300.

Special Interrogatory No. 1 seeks identity of percipient witnesses (which includes the identity of the mother).

For the same reasons discussed above, the court finds that the parties are entitled to identifying information about the mother, who may be a percipient witness, and that the State’s interest in the information outweighs the mother’s privacy interest.

Pursuant to H&S Code § 1280.15, CC § 56, and HIPAA, the court will issue an Order directing Kaiser to access the third party minor patient’s medical records to disclose the mother’s identity and contact information.

To ensure the least intrusive means, a protective order will issue to restrict the use of the information to counsel only, and the information cannot be disclosed to any other person, including Plaintiffs. The information may be used by counsel only for the purpose of preparing for, conducting, participating in the conduct of, and/or prosecuting and/or defending this action.