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This case was last updated from Los Angeles County Superior Courts on 06/08/2019 at 04:56:26 (UTC).

BARBARA PIETROWSKI VALDEZ ET AL VS SMITH & NEPHEW INC ET AL

Case Summary

On 11/20/2017 BARBARA PIETROWSKI VALDEZ filed a Personal Injury - Other Personal Injury lawsuit against SMITH NEPHEW INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELAINE LU and MICHAEL J. CONVEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4293

  • Filing Date:

    11/20/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ELAINE LU

MICHAEL J. CONVEY

 

Party Details

Plaintiffs and Petitioners

PIETROWSKI-VALDEZ BARBARA

VALDEZ RUBEN

Defendants and Respondents

WEST HILLS HOSPITAL & MEDICAL CENTER

SMITH & NEPHEW INC

DOES 1 TO 50

SMITH & NEPHEW INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

IACOPINO JOSEPH J. ESQ.

IACOPINO JOSEPH JAMES

Defendant and Respondent Attorneys

SHAW JOHN W. ESQ.

DUMMIT CRAIG S. ESQ.

SHAW JOHN W.

DUMMIT CRAIG STEPHEN ESQ.

 

Court Documents

DEFENDANT SMITH & NEPHEW, INC.?S NOTICE TO ADVERSE PARTY OF REMOVAL TO FEDERAL COURT

5/9/2018: DEFENDANT SMITH & NEPHEW, INC.?S NOTICE TO ADVERSE PARTY OF REMOVAL TO FEDERAL COURT

DEFENDANT SMITH & NEPHEW, INC.'S NOTICE OF APPLICATION AND APPLICATION OF DAVID W. O?QUINN TO APPEAR AS COUNSEL PRO HAC VICE;

7/23/2018: DEFENDANT SMITH & NEPHEW, INC.'S NOTICE OF APPLICATION AND APPLICATION OF DAVID W. O?QUINN TO APPEAR AS COUNSEL PRO HAC VICE;

DEFENDANT SMITH & NEPHEW, INC.'S NOTICE OF APPLICATION AND APPLICATION OF DOUGLAS J. MOORE TO APPEAR AS COUNSEL PRO HAC VICE;

7/23/2018: DEFENDANT SMITH & NEPHEW, INC.'S NOTICE OF APPLICATION AND APPLICATION OF DOUGLAS J. MOORE TO APPEAR AS COUNSEL PRO HAC VICE;

ORDER TRANSFERRING COMPLICATED PERSONAL INJURY PI CASE TO AN INDEPENDENT CALENDAR IC COURT

9/5/2018: ORDER TRANSFERRING COMPLICATED PERSONAL INJURY PI CASE TO AN INDEPENDENT CALENDAR IC COURT

Minute Order

9/5/2018: Minute Order

Notice of Case Management Conference

9/13/2018: Notice of Case Management Conference

Case Management Statement

10/9/2018: Case Management Statement

Case Management Statement

10/15/2018: Case Management Statement

Other -

10/18/2018: Other -

Notice of Posting of Jury Fees

10/19/2018: Notice of Posting of Jury Fees

Order

10/26/2018: Order

Order

10/26/2018: Order

Notice

12/20/2018: Notice

Notice of Case Reassignment and Order for Plaintiff to Give Notice

12/26/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Minute Order

1/28/2019: Minute Order

Motion for Protective Order

3/29/2019: Motion for Protective Order

Declaration

4/2/2019: Declaration

Stipulation and Order

6/3/2019: Stipulation and Order

29 More Documents Available

 

Docket Entries

  • 06/03/2019
  • Stipulation and Order (to Cont FSC, Trial and all Trial Related Dates); Filed by Smith & Nephew Inc. (Defendant)

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  • 06/03/2019
  • Stipulation and Order (to file a First Amended Complaint); Filed by Smith & Nephew Inc. (Defendant)

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  • 05/24/2019
  • Notice of Posting of Jury Fees; Filed by West Hills Hospital & Medical Center (Defendant)

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  • 05/14/2019
  • at 08:30 AM in Department U, Michael J. Convey, Presiding; Hearing on Motion for Protective Order - Not Held - Advanced and Vacated

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  • 05/07/2019
  • at 08:30 AM in Department U, Michael J. Convey, Presiding; Hearing on Motion for Protective Order - Not Held - Advanced and Vacated

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  • 04/29/2019
  • Notice (BY DEFENDANT WEST HILLS HOSPITAL AND MEDICAL CENTER TAKING ITS MOTION AND MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITION OF MARK MILLER OFF CALENDAR); Filed by West Hills Hospital & Medical Center (Defendant)

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  • 04/29/2019
  • Notice (BY DEFENDANT WEST HILLS HOSPITAL AND MEDICAL CENTER TAKING ITS MOTION AND MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITION OF AMANDA DONNELLY OFF CALENDAR); Filed by West Hills Hospital & Medical Center (Defendant)

    Read MoreRead Less
  • 04/02/2019
  • Declaration (DECLARATION OF STEVEN F. CALDERWOOD, ESQ. IN SUPPORT OF WEST HILLS HOSPITAL AND MEDICAL CENTER MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITION OF AMANDA DONNELLY); Filed by West Hills Hospital & Medical Center (Defendant)

    Read MoreRead Less
  • 04/02/2019
  • Declaration (DECLARATION OF STEVEN F. CALDERWOOD, ESQ. IN SUPPORT OF WEST HILLS HOSPITAL AND MEDICAL CENTER MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITION OF MARK MILLER); Filed by West Hills Hospital & Medical Center (Defendant)

    Read MoreRead Less
  • 03/29/2019
  • Motion for Protective Order; Filed by West Hills Hospital & Medical Center (Defendant)

    Read MoreRead Less
55 More Docket Entries
  • 01/16/2018
  • Answer; Filed by Defendant/Respondent

    Read MoreRead Less
  • 01/16/2018
  • Answer; Filed by Attorney for Defendant/Respondent

    Read MoreRead Less
  • 01/05/2018
  • DEFENDANT, SMITH & NEPHEW, INC.'S ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL

    Read MoreRead Less
  • 01/05/2018
  • Answer; Filed by Smith & Nephew Inc. (Defendant)

    Read MoreRead Less
  • 01/05/2018
  • Answer (AND DEMAND FOR JURY TRIAL ); Filed by Attorney for Defendant/Respondent

    Read MoreRead Less
  • 11/20/2017
  • COMPLAINT FOR DAMAGES & REQUEST FOR JURY TRIAL

    Read MoreRead Less
  • 11/20/2017
  • Complaint; Filed by Barbara Pietrowski-Valdez (Plaintiff); Ruben Valdez (Plaintiff)

    Read MoreRead Less
  • 11/20/2017
  • Complaint; Filed by Barbara Pietrowski-Valdez (Plaintiff); Ruben Valdez (Plaintiff)

    Read MoreRead Less
  • 11/20/2017
  • Complaint

    Read MoreRead Less
  • 11/20/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC684293    Hearing Date: January 11, 2021    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

BARBARA PIETROWSKI-VALDEZ and RUBEN VALDEZ,

Plaintiffs,

vs.

SMITH & NEPHEW, INC.; WEST HILLS HOSPITAL & MEDICAL CENTER; and DOES 1-50,

Defendants.

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CASE NO: BC684293

[TENTATIVE] ORDER RE: BHAGIA’S MOTION FOR SUMMARY JUDGMENT

Dept. U

8:30 a.m.

January 11, 2021

I. BACKGROUND

Barbara Pietrowski-Valdez (Barbara) and Ruben Valdez (Ruben) (collectively, Plaintiffs) initiated this suit against Smith & Nephew, Inc. (Smith & Nephew), West Hills Hospital & Medical Center (West Hills) and Does 1 through 50 on November 20, 2017. Plaintiff filed a first amended complaint on June 28, 2019, alleging: (1) negligence via products liability; (2) strict liability for failure to warn; (3) strict products liability for design defect: (4) fraud by intentional misrepresentation; (5) fraud by concealment; (6) fraud by negligent misrepresentation; (7) negligence; and (8) loss of consortium. Umesh Bhagia, M.D. (Bhagia) was substituted in as Doe 1 on October 24, 2019.

On September 4, 2017, Barbara had a right total hip arthroplasty (hip replacement) performed at West Hills. (FAC, ¶7.) The prosthetic hip joint used was called the Birmingham Hip Modular Hip system (the hip joint). (Ibid.) The hip joint included the Smith & Nephew BHR Acetabular Cup with Impactor, High Offset Anthology Porous Femoral Component, Modular Femoral Head and Modular Head Sleeve. The hip joint was designed, manufactured, and sold by Smith & Nephew. (Id. at ¶9.) No later than 2005, Smith & Nephew tried to gain FDA approval for the hip joint but was unsuccessful. (Id. at ¶10.)

On July 17, 2006 and August 17, 2006, Smith & Nephew received FDA approval for component parts of the hip joint, the monoblock femoral head and modular femoral (hemi) head, respectively, for use only in hemi-arthroplasty procedures. (Id. at ¶¶ 14-15.)

Despite not having FDA approval for the entire hip joint for all types of hip replacements, Smith & Nephew sold, marketed, and placed the hip joint into commercial distribution by misrepresenting that it was FDA approved. (Id. at ¶16.) On July 12, 2007, Smith & Nephew initiated a recall of the hip joint but failed to cause this recall to be posted until October 25, 2017. (Id. at ¶ 17.) Barbara had her hip replacement surgery after the date of recall but before Smith & Nephew posted the recall. The hip joint used in Barbara’s surgery was ordered from Smith & Nephew in early September 2007. (Id. at ¶ 18.)

Barbara resumed her active life for several years following her 2007 hip replacement. (Id. at ¶21.) In December 2016, Barbara began experiencing pain, dysfunction, and difficulties with her right hip. (Ibid.) The hip joint had failed and was causing Barbara injury. Barbara underwent a second surgery in March 2017 to remove and replace the hip joint. (Ibid.)

On August 14, 2020, Bhagia filed this motion for summary judgment pursuant to Code of Civil Procedure sections 437(c) as to Plaintiffs’ claims for professional negligence and loss of consortium. Bhagia moves on the grounds that there is no triable issue of material fact as to whether Plaintiffs’ claims are barred by the statute of limitations.

II. LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c(c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc, § 437c(p)(2).) Defendant can also prove that summary judgment is proper by establishing that he or she has a complete defense to a cause of action. (Genisman v. Carley (2018) 29 Cal.App.5th 45.) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers, except evidence to which the court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; Code Civ. Prov., § 437c(c).)

Motions for summary adjudication are procedurally identical to summary judgment motions. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.)

III. DISCUSSION

A. Evidentiary Objections

Bhagia asserts multiple objections to the evidence submitted by Plaintiffs, none of which are well-taken. The Court overrules Bhagia’s objections to the Declarations of Barbara Pietrowski-Valdez and Ruben Valdez because the statements therein are relevant to Plaintiff’s knowledge about any facts that would tie Bhagia to their injuries and, thus, do not constitute hearsay, improper opinions or legal conclusions, and are not speculative, lacking in foundation or misleading. As to the objections to the Iacopino declaration, the Court overrules Bhagia’s objections because, while the recitation of information from other sources would be inadmissible hearsay if offered for the truth of the matters stated, here Iacopino sets forth this information for the non-hearsay purpose of demonstrating the state of his and his clients’ knowledge about the nature of Bhagia’s involvement in causing Plaintiffs’ injuries. To the extent Iacopino includes legal argument in his declaration, the Court sustains the objections and disregards such arguments.

B. Seventh Cause of Action – Negligence

Negligence requires proof: (1) that defendant owe a legal duty to plaintiff to use due care; (2) breach of that duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) To meet its initial burden on negligence, Bhagia must show that there is no triable issue of material fact as to any of the elements of Plaintiffs’ claim and that it is entitled to judgment based on the undisputed facts.

Bhagia argues Barbara’s professional negligence claim against him is barred by the statute of limitations. In relevant part, Code of Civil Procedure section 340.5 provides:

In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.

Bhagia reasons that the statute of limitations for Barbara’s injuries started to run in March 2017. Barbara began experiencing pain and dysfunction with her right hip in December 2016 and became aware of potentially wrongful conduct in March 2017. (Misshore Decl., Exhibit B.) Consequently, Bhagia argues Barbara had until March 2018, one year after she discovered her injury and suspected wrongdoing, to file her claim for professional negligence against him. Plaintiffs initiated this action on November 20, 2017 and filed their FAC on June 28, 2019. (UMF Nos. 7 & 8.) However, Bhagia was not added as a Defendant in this action until October 28, 2019 after Plaintiffs filed their FAC. (UMF No. 9.) Thus, Bhahia maintains Barbara’s professional negligence claim against him is barred by the one-year statute of limitations that commenced in March 2017, because he was not added as a defendant in this action until October 2019, over two years after Barbara discovered her injury and more than one year after the statute of limitations expired.

Bhagia argues his addition to this action does not relate back to the original date Plaintiffs filed their first complaint under Code of Civil Procedure section 474 because Plaintiffs cannot claim they were unaware of Bhagia’s involvement in Barbara’s hip replacement surgery until October 2019. Bhagia had been Barbara’s physician for over 12 years. (UMF Nos. 1-6.) Between 2007 and 2019, Bhagia performed various surgeries on Barbara, including Barbara’s hip replacement in 2007 and revision surgeries in March and August of 2017. Bhagia treated Barbara until March 2019. (UMF Nos 1, 3, 5, & 6.)

Plaintiffs knew the non-FDA approved hip system was implanted into Barbara when Plaintiffs filed their first complaint in 2017. Plaintiffs also knew Bhagia was the physician who implanted the non-FDA approved hip system into Barbara when they filed their original complaint and when they filed their FAC. Bhagia is referenced as “Plaintiff’s surgeon” in both the original and FAC prior to his being named. (Complaint, pp. 9; FAC, pp. 5-9, 14, 17-18, 22-25, & 26-28.) Since Plaintiffs knew both that the hip replacement was performed with a non-FDA approved device and that Bhagia implanted that device in 2017, it follows that Plaintiffs were aware of Bhagia’s involvement in Barbara’s injuries when this action was initiated.

In McOwen v. Grossman (2007) 153 Cal.App.4th 937 (McOwen), the plaintiff filed a medical malpractice action against a medical group and named several Doe defendants. Almost one year later, plaintiff amended the complaint by substituting Grossman, plaintiff’s surgeon, as a Doe defendant. Grossman argued plaintiff’s one-year statute of limitations had run prior to his being named in the suit and, thus, plaintiff’s claim against him was time-barred. (McOwen, supra, 153 Cal.App.4th at 940-941.) The McOwen court explained the difference between determining whether the statute of limitations had run on a claim and whether the requirements of adequately naming a Doe defendant were met:

A plaintiff can avail him or herself of section 474 if the plaintiff is ignorant of facts that give rise to a cause of action against a person who is otherwise known to the plaintiff. “In keeping with th[e] liberal interpretation of section 474, it is now well established that even though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though the plaintiff knows the defendant's actual identity (that is, his name), the plaintiff is ‘ignorant’ within the meaning of the statute if he lacks knowledge of that person's connection with the case or with his injuries.” (General Motors Corp. v. Superior Court, supra, 48 Cal.App.4th at 593–594.) As put by another court: “The phrase ‘ignorant of the name of a defendant’ is broadly interpreted to mean not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant.” (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.)

In concluding that the amputation of appellant's leg put him on notice of his claim “sufficient to trigger the statute of limitations,” the trial court committed the same error that was committed by the trial court in Fuller v. Tucker, supra, 84 Cal.App.4th 1163. In Fuller, as in the case at bar, the medical malpractice complaint naming Doe defendants was filed within the statute of limitations. Dr. Tucker was substituted for one of the Does, as respondent was in this case, after the statute of limitations had run. (Id. at 1167.) Citing Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, as did the trial court in this case, as well as Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, the trial court in Fuller concluded that the statute of limitations had run. (Fuller, supra, at p. 1168.)

The error in this case, as it was in Fuller v. Tucker, is in identifying the issue in terms of the statute of limitations. The issue, however, is not when the cause of action against the newly named defendant accrued, i.e., whether the statute of limitations bars the action against respondent. This cannot be the issue since the complaint was filed within the statute of limitations and because the complaint, as filed, named Doe defendants. The statute of limitations is not at issue under these circumstances. As the court put it in Fuller: “Fuller timely filed her initial complaint. However, after the statute of limitations had expired, Fuller brought in Dr. Tucker as a Doe defendant. In such situations, Code of Civil Procedure section 474 permits plaintiffs to bring in defendants if the requirements of section 474 are met. If so, that defendant is considered a party to the action from its commencement.” (Fuller v. Tucker, supra, 84 Cal.App.4th at 1169–1170.)

Whether “the requirements of section 474 are met” (Fuller v. Tucker, supra, 84 Cal.App.4th at p. 1170) is different from deciding when the cause of action accrued for the purposes of the statute of limitations. If the identity of the Doe defendant is known but, at the time of the filing of the complaint the plaintiff did not know facts that would cause a reasonable person to believe that liability is probable, the requirements of section 474 are met. “Section 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.” (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 363) “The fact that the plaintiff had the means to obtain knowledge is irrelevant.” (General Motors Corp. v. Superior Court, supra, 48 Cal.App.4th at p. 594.) “In short, section 474 does not impose upon the plaintiff a duty to go in search of facts she does not actually have at the time she files her original pleading.” (Id. at 596.)

The McOwen court concluded that the plaintiff’s claim against Grossman was not barred by the statute of limitations because there was no evidence that the plaintiff was aware of the theory of liability Grossman was sued upon prior to March 2005, when Grossman was substituted in as a Doe defendant. (Id. at 944-945.)

Likewise, here, Bhagi has provided no evidence that Plaintiffs knew he had knowledge that the hip system was not FDA-approved before October 2019 when he was substituted in as a Doe Defendant. While Plaintiffs were obliviously aware of Bhagia’s involvement in implanting the hip system into Barbara when this action was filed, there are no facts showing Plaintiffs knew Bhagia was aware that the hip system was not approved when he implanted it. Bhagia’s awareness that the hip system was not FDA-approved is fact that is critical for connecting him to wrongful conduct causing Barbara’s injury. Without knowing this critical information, Plaintiffs had no reason to suspect Bhagia was liable for her injuries and, thus, no reason for him to be added as a defendant until 2019.

Therefore, Bhagia has failed to demonstrate the absence of any triable issues of material fact regarding whether Barbara’s professional negligence claim is barred by the statute of limitations. As such, the burden does not shift to Barbara to show a triable issue of material fact as to this claim. Moreover, even if the burden shifted to Barbara, she provided sufficient evidence to raise a triable issue of fact that she discovered Bhagia’s knowledge of the absence of FDA approval for his use of the hip system implanted in Barbara just months before she added Bhagia as a Doe defendant in October 2019.

C. Eighth Cause of Action – Ruben’s Loss of Consortium

Loss of consortium requires: (1) a valid and lawful marriage between the plaintiff and injured party, at the time of the injury; (2) tortious injury to the plaintiff’s spouse; (3) loss of consortium suffered by the plaintiff; and (4) loss proximately causes by defendant’s act. (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)

To meet is initial burden on Ruben’s loss of consortium claim, Bhagi must show there is no triable issue of material fact that Ruben cannot prove at least one of the elements of his claim.

Bhagia argues, because Ruben’s loss of consortium claim is derivative of Barbara’s professional negligence claim, it too is barred by the one-year statute of limitations under Code of Civil Procedure section 340.5.

Again, Bhagia fails to meet his burden of demonstrating there is no triable issue of material fact that Ruben’s claim against him is barred by the statute of limitations for the same reasons discussed with respect to Bhagia’s challenge to Barbara’s claim fails. As such, the burden does not shift to Ruben to demonstrate a triable issue of material fact. Further, for the reasons explained above, even if the burden shifted to Ruben, he has submitted sufficient evidence exposing a triable issue as to when Plaintiffs first discovered that Bhagia may have knowingly implanted a hip system in Barbara that was not FDA-approved for that use.

II. CONCLUSION

For the foregoing reasons, Bhagi’s motion for summary judgment is DENIED.

Plaintiffs are ordered to give notice of the Court’s ruling.

DATED: January 11, 2021

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court

Case Number: BC684293    Hearing Date: July 28, 2020    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

BARBARA PIETROWSKI-VALDEZ and RUBEN VALDEZ,

Plaintiffs,

vs.

SMITH & NEPHEW, INC.; WEST HILLS HOSPITAL & MEDICAL CENTER; and DOES 1-50,

Defendants.

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CASE NO: BC684293

[TENTATIVE] ORDER RE: SMITH & NEPHEW’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION

Dept. U

8:30 a.m.

July 28, 2020

I. BACKGROUND

Barbara Pietrowski-Valdez (Barbara) and Ruben Valdez (Ruben) (collectively, Plaintiffs) initiated this suit against Smith & Nephew, Inc. (Smith & Nephew), West Hills Hospital & Medical Center (West Hills), and Does 1 through 50 on November 20, 2017. Plaintiff filed a first amended complaint on June 28, 2019, alleging: (1) negligence via products liability; (2) strict liability for failure to warn; (3) strict products liability for design defect: (4) fraud by intentional misrepresentation; (5) fraud by concealment; (6) fraud by negligent misrepresentation; (7) negligence; and (8) loss of consortium. Umesh Bhagia, M.D. (Bhagia) was substituted in a Doe 1 on October 24, 2019.

On September 4, 2017, Barbara had a right total hip arthroplasty (hip replacement) performed at West Hills. (FAC, ¶7.) The prosthetic hip joint used was called the Birmingham Hip Modular Hip system (the hip joint). (Ibid.) The hip joint included the Smith & Nephew BHR Acetabular Cup with Impactor, High Offset Anthology Porous Femoral Component, Modular Femoral Head and Modular Head Sleeve. The hip joint was designed, manufactured, and sold by Smith & Nephew. (Id. at ¶9.) No later than 2005, Smith & Nephew tried to gain FDA approval for the hip joint, but was unsuccessful. (Id. at ¶10.)

On July 17, 2006 and August 17, 2006, Smith & Nephew received FDA approval for component parts of the hip joint, the monoblock femoral head and modular femoral (hemi) head, respectively, for use only in hemi-arthroplasty procedures. (Id. at ¶¶ 14-15.)

Despite not having FDA approval for the entire hip joint for all types of hip replacements, Smith & Nephew sold, marketed, and placed the hip joint into commercial distribution by misrepresenting that it was FDA approved. (Id. at ¶16.) On July 12, 2007, Smith & Nephew initiated a recall of the hip joint, but failed to cause this recall to be posted until October 25, 2017. (Id. at ¶ 17.) Barbara had her hip replacement surgery after the date of recall but before Smith & Nephew caused the recall to be posted. The hip joint used in Barbara’s surgery was ordered from Smith & Nephew in early September 2007. (Id. at ¶ 18.)

Barbara resumed her active life for several years following her 2007 hip replacement. (Id. at ¶21.) In December 2016, Barbara began experiencing pain, dysfunction, and difficulties with her right hip. (Ibid.) The hip joint had failed and was causing Barbara injury. Barbara underwent a second surgery in March 2017 to remove and replace the hip joint. (Ibid.)

On November 8, 2019, Smith & Nephew filed this motion for summary judgment or, alternatively, summary adjudication pursuant to Code of Civil Procedure sections 437(c) as to each of Plaintiffs’ claims. Smith & Nephew moves on the grounds that there is no triable issue of material fact that Plaintiffs cannot prove any of their causes of action against it.

II. LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c(c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc, § 437c(p)(2).) Defendant can also prove that summary judgment is proper by establishing that he or she has a complete defense to a cause of action. (Genisman v. Carley (2018) 29 Cal.App.5th 45.) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers, except evidence to which the court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; Code Civ. Prov., § 437c(c).)

Motions for summary adjudication are procedurally identical to summary judgment motions. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.)

III. DISCUSSION

A. First Cause of Action – Products Liability via Negligence

A products liability claim based on a negligence theory requires a showing that defendant owed plaintiff a legal duty, breached the duty, and that the breach was a proximate or legal cause of the injury. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.) In the context of a products liability lawsuit, “[u]nder a negligence theory, a plaintiff must also prove ‘an additional element, namely, that the defect in the product was due to negligence of the defendant.’” (Id. at 479.) Negligence law in a failure-to-warn case requires a plaintiff to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care, i.e., what a reasonably prudent manufacturer would have known and warned about. (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1112.)

In this case, Plaintiffs pled that Smith & Nephew breached its duties to refrain from causing the hip implant system to be dangerous, defective, and unsafe for use in hip replacement surgery and to warn purchasers, doctors, and patients of the risks associated with the hip joint, including that it was not approved by the FDA for a complete hip replacement. (First Amended Complaint, ¶ 25.) To meet its initial burden with respect to Plaintiffs’ claim for products liability on a negligence theory, Smith & Nephew must show through affirmative evidence that Plaintiffs cannot succeed on this claim by negating at least one of the elements.

i. Failure to Warn and Other Breaches of Duty

Smith & Nephew first attempts to use FDA approval as a shield against liability, arguing that it should not be held liable because the FDA approved its distribution of the acetabular cup for resurfacing hip application and cleared it to distribute the modular head for hemi-arthroplasty. Smith & Nephew contends that doctors can legally use devices as they deem appropriate according to their medical judgment once the FDA has approved distribution. This off-label use, it is argued, is a necessary part of good medicine that is unregulated by the FDA. (Buckman Co. v. Plaintiffs’ Leg. Comm. (2001) 531 U.S. 341, 350.)

The FDA’s approval and clearance of components of the hip joint for some uses does not relieve Smith & Nephew from negligence or strict products liability with respect to its use in a particular case. (Medtronic, Inc. v. Lohr (1996.) 518 U.S. 470, 471.) Therefore, Smith & Nephew is not absolved from liability simply because components of the hip joint were approved and cleared for some uses.

Smith & Nephew also argues that Plaintiffs cannot establish that it breached a duty to warn that allegedly caused Plaintiffs’ injuries. Smith & Nephew contends its only duty is to warn doctors of the risks associated with its devices, not patients, and this duty is satisfied if the manufacturer provides adequate warnings to the doctor about any known or reasonably knowable dangerous side effects, regardless of whether the warning reaches the patient. Smith & Nephew contends, for example, that it did disclose to Barbara’s physician, Dr. Bhagia, that its implant device had not been approved by the FDA for use in the kind of hip replacement surgery that Plaintiff underwent.

Smith & Nephew relies on two documents to support its argument that it warned Plaintiffs’ doctor about the FDA status of the implant devices, but neither is admissible or adequate to negate Plaintiffs’ failure to warn contention. Defense counsel David O’Quinn declares that Exhibits C and D attached to his declaration are the Surgical Technique Brochure for the BHR system and the package label for the hemi head in effect at the time of Plaintiff’s implant surgery. But nothing in the attorney’s declaration demonstrates his personal knowledge of what these documents are, whether they were “in effect” at the time of Plaintiff’s surgery, or what it means to be “in effect.” Even more significantly, no evidence establishes that the brochure pertains to the kind of surgery performed on Plaintiff’s hip. As Plaintiff’s opposition points out, even if the brochure were properly authenticated and established as admissible evidence, nothing on the face of the document demonstrates that the “Birmingham Resurfacing System” referred to in the brochure is the same kind of procedure as Plaintiff’s hip replacement surgery. What is more, Smith & Nephew fails to highlight any language in these documents that reflects any notice about the FDA status of the implant devices at issue. These documents provide no support for Smith & Nephew’s motion as they do not constitute admissible evidence, and Smith & Nephew’s descriptions about their significance are untethered to any supporting evidence.

Nor is there any evidence in the record that Smith & Nephew sent either document to Plaintiff’s doctor or that he received them from some other source. To the contrary, evidence in the record contradicts such a conclusion. Dr. Bhagia testified that he had no memory of seeing either of these documents and denied that he knew that the use of the implant devices in Barbara’s surgery would have been an off-label use not specifically approved by the FDA. Based on its review of the evidence, the Court finds that Smith & Nephew has not negated the failure-to-warn claim with the submission of admissible evidence.

In addition to its reliance on the device brochure and product label, Smith & Nephew point to the testimony of their sales representative, Steven Owens, who testified that he told Dr. Bhagia that his intended use of the implant devices in Plaintiff’s surgery was an off-label use. While this testimony is evidence that Smith & Nephew gave some information about the FDA-status of the implant devices, Plaintiff has created triable issues by relying on the testimony of Dr. Bhagia, who testified that, while he did not remember if Mr. Owens told him that the implantation of the BHR femoral head would constitute an off-label us in Plaintiff’s surgery, he did not believe he was making an off-label use of the devices in Plaintiff’s surgery. He also explained that if he had believed their use was off-label, he would have explained that to Barbara before the surgery and secured her informed consent. This evidence creates a genuine dispute of fact about whether Dr. Bhagia received any warning that must be resolved by a jury.

Because the record reveals a triable issue about whether Smith & Nephew gave any warning about the off-label use of the implant devices, the Court need not address its related argument that Plaintiffs must prove the inadequacy of the disputed warning. If there is a triable dispute about whether any warning was given, Plaintiffs need not demonstrate that the alleged warning was inadequate to defend against Smith & Nephew’s summary judgment motion.

Smith & Nephew has made no effort in its motion to negate all liability theories raised by Plaintiffs in their First Amended Complaint. For example, it has ignored Plaintiffs’ allegation of breach arising from Smith & Nephew’s conduct in recalling components of the hip joint just prior to Barbara’s surgery, but then failing to post the recall until after her implant was complete. Smith & Nephew has provided no evidence that a reasonably prudent manufacturer would have waited months before noticing a recall and continued to sell and distribute the device in the interim. As another example, Smith & Nephew has provided no factual challenge to Plaintiffs’ allegations that the implant device was dangerous, defective, unsafe or unfit for use or that it failed to give Plaintiffs’ doctor notice of these defects. There is no question on this record, then, that Smith & Nephew has not satisfied its initial burden to negate Plaintiffs’ contention it breached its duty of due care.

ii. Causation and Injury

Smith & Nephew contend that Plaintiffs will be unable to demonstrate that any failure to warn resulted in their alleged injuries, arguing in effect that Dr. Bhagia would have chosen the implant devices for use in Barbara’s surgery even if he had been provided the warnings Plaintiffs contends were wanting. To support its motion, Smith & Nephew offers the testimony of Dr. Bhagia to the effect that he selected the implant device based on his own knowledge and experience, with awareness of its risks and benefits, and that any warnings about the absence of FDA approval would not have altered his decision. But Dr. Bhagia also explained in his deposition that, if he had thought that he was pursuing an off-label use of the implant devices, he would have talked to Barbara to explain the situation and obtain her informed consent and that he would not have employed the implant devices unless she approved their off-label use. This is enough evidence to raise triable issues regarding Plaintiffs’ reliance on Smith & Nephew’s lack of notice and a causal connection between Smith & Nephew’s breach and the injuries Plaintiffs suffered.

In addition, Smith & Nephew argues Plaintiffs cannot demonstrate that Barbara suffered a compensable injury from its hip joint. Smith & Nephew offer Bhagia’s testimony that, based on the time of the implantation, the treatment options available, and Barbara’s activity level, the hip joint was expected to last her 10 to 15 years and Barbara was able to benefit from the hip joint for nine years and seven months. Thus, Smith & Nephew reasons Barbara reaped the intended benefit from its hip joint and was not damaged as a result.

But the evidence that Smith & Nephew presented belies the conclusion it would have the Court reach. This evidence establishes that Dr. Bhagia found metallosis in the tissues in Barbara’s hip and osteolysis and large cysts in the acetabulum behind the cup, that Barbara had to undergo a revision of the right hip on March 28, 2017, that she reported continued discomfort in her hip in March 2018,and that her most recent medical records reveal reports of continued softness and soreness in her right hip. (SSUF 36, 41, 43.) Based on this record, the Court cannot find that Smith & Nephew has established based on undisputed evidence that use of its implant devices caused no injury to Barbara or that her continued medical problems were not caused by the use of these devices.

For the reasons explained above, the Court finds that Smith & Nephew failed to meet its burden or that Plaintiffs demonstrated triable issues with respect to each element of Plaintiffs’ cause of action for products liability based on a negligence theory. Thus, the motion for summary judgment or alternatively for summary adjudication as to this claim must be denied.

B. Second Cause of Action – Strict Liability for Failure to Warn

Strict liability for failure to warn requires: (1) the manufacture of a product; (2) that was defective; (3) and a cause of injury to the plaintiff; and (4) plaintiff’s injury resulted from a use of the product that was reasonably foreseeable. (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 255.) The rules of strict liability require a plaintiff to prove only that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution. (Carlin v. Superior Court, supra, 13 Cal.4th at 1112-1113)

To meet its initial burden on strict liability for failure to warn, Smith & Nephew must show that it is entitled to judgment based on undisputed facts by presenting affirmative evidence negating each element of the claim. Smith & Nephew has not its burden on this claim for the same reasons as it failed on the first cause of action. As a key example, Plaintiffs allege Smith & Nephew knew that components of the hip joint had been recalled prior to her hip replacement and did not give notice the recall until after her hip replacement, but Smith and Nephew failed to offer any affirmative evidence to negate this allegation of breach. As a result, the question of whether Smith & Nephew failed to notice this recall and instead continued to sell and distribute the hip joint, despite the recall, constitutes a triable issue of material fact which must be resolved to determine its liability to Plaintiffs for strict products liability under a failure to warn theory.

C. Third Cause of Action – Strict Products Liability for Design Defect

The elements of a strict products liability cause of action are a defect in the manufacture or design of the product or a failure to warn, causation, and injury. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) In order to be liable for strict products liability, a plaintiff must allege that the defendant “produced, manufactured, sold, or was in some way responsible for the product.” (Garcia v. Joseph Vince Co. (1978) 84 Cal.App.3d 868, 874.)  “Design defects appear in products that, although properly manufactured, are dangerous because they lack a critical feature needed to ensure safe use.” (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 180.) “A product design may be found defective if: (1) ‘the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner’ (consumer expectations test) or (2) the risk of danger inherent in the product’s design outweighs the design’s benefits (risk benefit test).”  (Id. quoting Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432.)

To meet its initial burden on strict products liability for design defect, Smith & Nephew must show the absence of any triable issues of material fact on the elements of this claim.

Smith & Nephew argues this claim fails because California’s substantive law precludes strict products liability via design defect in cases where a medical device is implanted. Here, Smith & Nephews’ contention is well-taken. Artiglio v. Superior Court (1994) 22 Cal.App.4th 1388, 1397, extended the protection afforded to manufacturers of prescription drugs to manufacturers of medical devices from strict products liability via a design defect. The Artiglio court concluded that “the imposition of the condition of a ‘prescription’ provides insulation between the manufacturer and the user such as to warrant elimination of the consumer protections afforded by strict liability. We find the same to be true of medical prostheses, at least as to those in the category of devises available only through the services of a physician.” (Id. at 1396-1397.)

Here, Barbara could only, and did, receive the hip joint implantation from her surgeon, Bhagia. She would not have been able to procure it without his recommendation and implantation of it into her body. Therefore, Smith & Nephew is insulated from liability for any design defect of the hip joint from Bhagia “prescribing” the hip joint for Barbara’s medical use.

Smith & Nephew has met its burden of showing that there is no triable issue of material fact that Plaintiffs cannot prove strict liability via design defect against it. The burden now shifts to Plaintiffs to show a triable issue of material fact.

In order for the protection afforded in Artilgo to apply here, Plaintiffs contend Smith & Nephew must show that the manufacturer has properly prepared and marketed its product and given the proper warnings. (Huft v. Horowitz (1992) 4 Cal.App.4th 8, 19-20.) Plaintiffs argue that Smith & Nephew has not shown these two prerequisites to immunity from strict liability for a design defect. Review of the relevant case law shows that Plaintiffs’ contention is correct and Smith & Nephew must meet the Huft standard in order to receive Artilgo’s protection. Therefore, Plaintiffs have successfully shown that triable issues about the sufficiency of Smith & Nephew’s marketing and warnings prevent entry of summary judgment or adjudication on this claim.

Smith & Nephew do not directly reply to this specific argument advanced by Plaintiffs. Smith & Nephew do argue that the packaging label submitted as an exhibit has been approved by the FDA and clearly discloses the components regulatory status. However, this does not show that no triable issue exists here because the U.S. Supreme Court held that FDA approval and clearance does not relieve a manufacturer from negligence or strict products liability. (Medtronic, Inc. v. Lohr (1996.) 518 U.S. 470, 471.) State tort law must still be followed in addition to FDA regulations.

D. Fourth Cause of Action – Fraud by Misrepresentation

Fraud by misrepresentation requires: (1) a misrepresentation; (2) knowledge of the falsity; (3) intent to defraud; (4) justifiable reliance; (5) resulting damage. (Conroy v. Regents of the University of California (2009) 45 Cal.4th 1244, 1255.) To meet its initial burden on fraud by misrepresentation, Smith & Nephew must show through affirmative evidence that Plaintiffs cannot prove at least one of the elements of this claim.

Smith & Nephew argues Plaintiffs have no competent evidence showing their reliance on any representation or that such reliance was the proximate cause of Barbara’s alleged injuries. Smith & Nephew claims Plaintiffs have no evidence that it improperly concealed the hip joint’s regulatory status from Bhagia or improperly induced him to use its component parts off-label. Bhagia does not recall Owens ever mentioning this off-label use and that the hip joint’s packaging specified its regulatory status in 2007. In order to show reliance and proximate cause, Smith & Nephew contends Plaintiffs must introduce expert testimony that its failure to provide information would have caused Bhagia to alter his treatment recommendation.

Smith & Nephew presents Bhagia’s deposition testimony that he did not rely on information provided by it or its independent sale representative, Owens, in deciding to implant the components he chose for Barbara and that he was aware of the risks the hip joint possessed. Bhagia testified that he based his decision to use the hip joint in Barbara’s treatment on his training, experience, and independent investigation. Bhagia acknowledged he was not aware of the hip joint’s regulatory status when he chose to implant it into Barbara, but such knowledge would not have changed his decision to recommend the component parts for her. Smith & Nephew also contends that its product labelling disclosed the hip joint’s FDA regulatory status and the medical risks of the procedure chosen and Bhagia testified that he was not misled by Smith & Nephew or Owens.

Here, Bhagia testified in his deposition that, while it would not have altered his treatment decision, he did not know that the use of the hip joint in full hip replacements was an off-label use. (Bhagia deposition, p.64.) Smith & Nephew attempts to distract from this fact by emphasizing Bhagia’s testimony that even if he had been aware of the hip joint’s regulatory status, he would have still recommended the implantation of the device into Barbara’s hip joint. However, Bhagia goes onto state that, had he been aware of the hip joint’s implantation being an off-label use, he would have informed Barbara of this fact when he presented her with her treatment options. (Id. at p. 91.) While this knowledge might not have changed Bhagia’s treatment recommendation for Barbara, it might have affected Barbara’s decision and consent to her treatment.

Moreover, Bhagia was not asked about the alleged recall of the hip joint that was issued prior to Barbara’s hip replacement, but not noticed until afterwards. This alone creates a question of material fact. Smith & Nephew submitted no evidence that could be used to negate the possibility that Bhagia’s treatment decision would have been different had he known of the recent recall. Therefore, a triable issue of material fact exists as to whether Plaintiffs can prove fraud by misrepresentation.

E. Fifth & Sixth Causes of Action – Fraud by Negligent Misrepresentation & Fraud by Concealment

In addition to the elements for fraud set forth above, negligent misrepresentation requires the defendant to make false statements believing them to be true, but without reasonable ground for such belief. (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407.)

Fraud by concealment requires: (1) that defendant concealed or suppressed a material act; (2) defendant was under a duty to disclose the fact to the plaintiff; (3) defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) plaintiff was unaware of the fact and would not have acted in the same way knowing of the concealed or suppressed fact; (5) causation; and (6) the plaintiff sustained damages. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.)

To meet its initial burden on these fraud claims, Smith & Nephew must show based on affirmative evidence that Plaintiffs cannot prove at least one element of each claim. Smith & Nephew argues Plaintiffs have no competent evidence showing their reliance on any representations or that such reliance was the proximate cause of Barbara’s alleged injuries. In order to show reliance and proximate cause, Smith & Nephew contends Plaintiffs must introduce expert testimony that its failure to provide information would have caused Bhagia to alter his treatment recommendation.

Smith & Nephew’s effort to seek judgment in its favor on these claims misses the mark for the same reasons explained in the discussion above about Plaintiffs’ misrepresentation claim. Because its evidence fails to negate Plaintiffs’ ability to demonstrate that Dr. Bhagia’s decision would have been altered if information about the product recall had been disclosed to him, Smith & Nephew failed to satisfy its initial burden of production so as to shift the burden to Plaintiffs. For this reason, the motion for summary judgment or, in the alternative, for summary adjudication fails.

F. Seventh Cause of Action – Negligence

Negligence requires: (1) that defendant owe a legal duty to plaintiff to use due care; (2) breach of that duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) To meet its initial burden on negligence, Smith & Nephew must show there is no triable issue of material fact that as to any of the elements of Plaintiffs’ claim and that it is entitled to judgment based on the undisputed facts.

Smith & Nephew argues Plaintiff cannot prove that it breached any duty nor that any alleged breach proximately causes Plaintiffs’ purported injuries. This contention fails for many of the reasons discussed above.

To focus on just one deficiency, Smith & Nephew has not met its initial burden because it did not even address Plaintiffs’ focus on the hip joint’s unnoticed recall. Plaintiffs pled in their FAC that “on July 12, 2017, Smith & Nephew initiated a recall of its [hip joint]. However, Smith & Nephew did not cause such recall to be posted until October 25, 2007.” (FAC, ¶17.) Barbara’s hip replacement was performed on September 4, 2007. Therefore, there is a triable issue of material fact whether it was negligent of Smith & Nephew to delay in noticing the recall for over three months while continuing to sell and distribute the hip joint in the interim. Smith & Nephew submitted no evidence to negate this contention so it did not meet its initial burden. As a result, the burden does not shift to Plaintiffs to demonstrate a triable issue.

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G. Eighth Cause of Action – Ruben’s Loss of Consortium

Loss of consortium requires: (1) a valid and lawful marriage between the plaintiff and injured party, at the time of the injury; (2) tortious injury to the plaintiff’s spouse; (3) loss of consortium suffered by the plaintiff; and (4) loss proximately causes by defendant’s act. (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)

To meet is initial burden on Ruben’s loss of consortium claim, Smith & Nephew must show there is no triable issue of material fact that Ruben cannot prove at least one of the elements of his claim.

Smith & Nephew argues there is no competent evidence that it intentionally or negligently injured Barbara. As previously discussed, there are numerous triable issues of material fact that preclude entry of summary judgment in favor of Smith & Nephew on Barbara’s underlying claims. Therefore, Smith & Nephew has failed to demonstrate that it is entitled to judgment on Ruben’s derivative claim. The burden does not shift to Plaintiffs.

II. CONCLUSION

For the foregoing reasons, Smith & Nephew’s motion for summary judgment and its alternative motion for summary adjudication are DENIED.

Plaintiffs are ordered to give notice of the Court’s ruling.

DATED: July 28, 2020

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Hon. Theresa M. Traber

Judge of the Superior Court

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

BARBARA PIETROWSKI-VALDEZ and RUBEN VALDEZ,

Plaintiffs,

vs.

SMITH & NEPHEW, INC.; WEST HILLS HOSPITAL & MEDICAL CENTER; and DOES 1-50,

Defendants.

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CASE NO: BC684293

[TENTATIVE] ORDER RE: WEST HILLS HOSPITAL & MEDICAL CENTER’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION

Dept. U

8:30 a.m.

July 28, 2020

I. BACKGROUND

Barbara Pietrowski-Valdez (Barbara) and Ruben Valdez (Ruben) (collectively, Plaintiffs) initiated this suit against Smith & Nephew, Inc. (Smith & Nephew), West Hills Hospital & Medical Center (West Hills), and Does 1 through 50 on November 20, 2017. Plaintiff filed a first amended complaint on June 28, 2019, alleging: (1) negligence via products liability; (2) strict liability for failure to warn; (3) strict products liability for design defect: (4) fraud by intentional misrepresentation; (5) fraud by concealment; (6) fraud by negligent misrepresentation; (7) negligence; and (8) loss of consortium. Umesh Bhagia, M.D. (Bhagia) was substituted in a Doe 1 on October 24, 2019.

On September 4, 2017, Barbara had a right total hip arthroplasty (hip replacement) performed at West Hills. (FAC, ¶7.) The prosthetic hip joint used was called the Birmingham Hip Modular Hip system (the hip joint). (Ibid.) The hip joint included the Smith & Nephew BHR Acetabular Cup with Impactor, High Offset Anthology Porous Femoral Component, Modular Femoral Head and Modular Head Sleeve. The hip joint was designed, manufactured, and sold by Smith & Nephew. (Id. at ¶9.) No later than 2005, Smith & Nephew tried to gain FDA approval for the hip joint but was unsuccessful. (Id. at ¶10.)

On July 17, 2006 and August 17, 2006, Smith & Nephew received FDA approval for component parts of the hip joint, the monoblock femoral head and modular femoral (hemi) head, respectively, for use only in hemi-arthroplasty procedures. (Id. at ¶¶ 14-15.)

Despite not having FDA approval for the entire hip joint for all types of hip replacements, Smith & Nephew sold, marketed, and placed the hip joint into commercial distribution by misrepresenting that it was FDA approved. (Id. at ¶16.) On July 12, 2007, Smith & Nephew initiated a recall of the hip joint but failed to post the recall until October 25, 2017. (Id. at ¶ 17.) Barbara had her hip replacement surgery after the date of recall but before Smith & Nephew caused the recall to be posted. The hip joint used in Barbara’s surgery was ordered from Smith & Nephew in early September 2007. (Id. at ¶ 18.)

Barbara resumed her active life for several years following her 2007 hip replacement. (Id. at ¶21.) In December 2016, Barbara began experiencing pain, dysfunction, and difficulties with her right hip. (Ibid.) The hip joint had failed and was causing Barbara injury. Barbara underwent a second surgery in March 2017 to remove and replace the hip joint. (Ibid.)

On September 5, 2019, West Hills filed this motion for summary judgment or, alternatively, summary adjudication pursuant to Code of Civil Procedure sections 437(c) and 437(c)(f)(1). West Hills moves on the grounds there is no triable issue of material fact that it is not liable under a products liability theory, Plaintiffs’ claim for negligence via professional liability is time barred, and Ruben’s loss of consortium claim is meritless because it is predicated on the insufficient negligence claim.

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II. LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c(c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc, § 437c(p)(2).) Defendant can also prove that summary judgment is proper by establishing that he or she has a complete defense to a cause of action. (Genisman v. Carley (2018) 29 Cal.App.5th 45.) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers, except evidence to which the court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; Code Civ. Prov., § 437c(c).)

Motions for summary adjudication are procedurally identical to summary judgment motions. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.)

III. DISCUSSION

a. Request for Judicial Notice

West Hills requests judicial notice be taken of all pleadings and records in the Court’s file in this action. Pursuant to Evidence Code section 452(d), the Court can judicially notice “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” Therefore, West Hills’ request is granted.

b. First Cause of Action – Products Liability via Negligence

A products liability claim based on a negligence theory requires that defendant owed plaintiff a legal duty, breached the duty, and that the breach was a proximate or legal cause of the injury. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.) In the context of a products liability lawsuit, “[u]nder a negligence theory, a plaintiff must also prove ‘an additional element, namely, that the defect in the product was due to negligence of the defendant.’” (Id. at 479.)

West Hills challenges the first, second, and third causes of actions on the same grounds. West Hills relies on Silverheart v. Mount Zion Hospital (Silverheart) (1971) 20 Cal.App.3d 1022 for the proposition that “a manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspecting for defects, proves to have a defect that causes injury to a human being.” (Silverheart v. Mount Zion Hospital, supra, 20 Cal.App.3d at 1025.) West Hills claims liability has only been extended to a limited number of entities outside of manufacturers when the defendant “played an integral and vital part in the overall production or marketing enterprise . . . . The defendant in each case was a link in the chain of getting goods from the manufacturer to the ultimate user or consumer.” (Id. at p.1026.)

Although Plaintiffs’ first cause of action is a products liability claim that is grounded on a negligence theory, West Hills has not even attempted to submit evidence that contests Plaintiffs’ allegation of negligence. West Hills’ argument is based on the holding in Silverheart, which dealt with products liability on a theory of strict liability, not a negligence-based products liability claim like the one asserted by Plaintiffs here. West Hills owed Barbara, as its patient, the duty to provide a non-defective implant device and perform her hip replacement with the competence of similar professionals. West Hills’ summary judgment motion does not even address this theory of liability.

Because the legal challenge West Hills raises to this claim misses the mark and its evidence of compliance with its duty of care is completely absent, the Court finds that West Hills has not met its initial burden in showing based on undisputed facts that Plaintiffs will be unable to prove products liability using a negligence theory. Accordingly, the burden does not shift to Plaintiffs to demonstrate a triable issue of material fact.

c. Second and Third Causes of Action – Strict Liability for Failure to Warn and Strict Products Liability for Design Defect

Strict liability for failure to warn requires: (1) the manufacture of a product; (2) that was defective; (3) and a cause of injury to the plaintiff; and (4) plaintiff’s injury resulted from a use of the product that was reasonably foreseeable. (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 255.)

The elements of a strict products liability cause of action are a defect in the manufacture or design of the product or a failure to warn, causation, and injury. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) In order to be liable for strict products liability, a plaintiff must allege that the defendant “produced, manufactured, sold, or was in some way responsible for the product.” (Garcia v. Joseph Vince Co. (1978) 84 Cal.App.3d 868, 874.)  “Design defects appear in products that, although properly manufactured, are dangerous because they lack a critical feature needed to ensure safe use.” (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 180.) “A product design may be found defective if: (1) ‘the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner’ (consumer expectations test) or (2) the risk of danger inherent in the product’s design outweighs the design’s benefits (risk benefit test).”  (Id. quoting Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432.)

To meet its initial burden on strict liability for failure to warn, West Hills must show based on undisputed facts that Plaintiffs will be unable prove at least one of the elements of these claims. Here, West Hills attempts to show that there is no triable issue of material fact that it did not manufacture the hip joint.

West Hills provides the deposition testimony of Steven Owens (Owens) purportedly to show that the hip joint was used by its surgeon only to provide care to Barbara and that West Hills is not involved in the manufacture or distribution of the hip joint, but the evidence does not demonstrate this. Nothing in the deposition testimony actually defines the scope of West Hills’ role in the process of providing the implant device to Plaintiff. Although Mr. Owens’ testimony can be read as evidence that the implant device was likely manufactured elsewhere and shipped to West Hills, it does not show that West Hills had no role in the “chain of getting goods from the manufacturer to the ultimate user or consumer.” (Silverheart, 20 Cal.App.3d at p. 1026.) Even more disconcerting is that Mr. Owens uses the present tense to describe the procedure of receiving the medical device and preparing it for use, so it is unclear whether he is testifying from personal knowledge about how Plaintiff’s implant device was actually handled, or about his company’s general practices for dealing with such devices. (Owens deposition, p. 37.)

The Court finds that West Hills has not met its burden of demonstrating entitlement to judgment based on undisputed facts. While it may be that West Hills could show that it is not in the business of manufacturing and distributing medical devices, it has not done so. The Court finds it perplexing that West Hills did not provide a declaration from one of its managers describing its procedures for securing implant devices and its lack of involvement in the manufacture or distribution of such medical equipment. Having chosen to rely on the thin and unclear testimony of Mr. Owens, West Hills must live with the results of such a decision. Based on this record, the Court finds that the burden does not shift to Plaintiffs to prove the existence of triable issues of fact and that West Hills’ motion must be denied.

d. Seventh Cause of Action – Negligence

Negligence requires: (1) that defendant owe a legal duty to plaintiff to use due care; (2) breach of that duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) When the claim is for professional negligence, the professional is held to the standard of care “to use the skill, prudence, and diligence as other members of the same profession commonly possess and exercise.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077.) The professional duty of a hospital is primarily to provide a safe environment within which diagnosis, treatment, and recovery can be carried out. (Williams v. Superior Court (1994) 30 Cal.App.4th 318, 325.)

To meet its initial burden on professional negligence, West Hills must show there is no genuine dispute of material fact that warrants a trial of this claim. West Hills is a medical provider and is held to the professional standard of care to use the skill, prudence, and diligence other medical centers commonly possess and exercise. West Hills owed Barbara the duty to provide a safe environment within which to carry out her hip replacement.

West Hills contends this claim is barred by the statute of limitation in Code of Civil Procedure section 340.5, which provides in relevant part:

In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or with reasonable diligence should have discovered, the injury, whichever occurs first.

The initial hip replacement was performed on September 4, 2007. West Hills argues that the lawsuit should have been filed within three years of the surgery or by September 4, 2010. West Hills contends Plaintiffs failed to timely bring suit because the initial complaint was not filed until November 20, 2017, more than seven year after the three-year statute of limitations expired.

The timeliness of Plaintiffs’ negligence claim turns on when Barbara’s injury “occurred.” It is undisputed that she discovered the injury in December 2016 when she began to experience pain and dysfunction in her hip. One year from December 2016 was December 2017 and Plaintiffs commenced this action on November 20, 2017, before the expiration of the one-year time limit for bringing suit after discovery of the injury. However, this is not the only consideration. If the injury occurred more than three years prior to Plaintiffs initiating this suit, then their complaint may be untimely because the time period expiring first controls.

For purposes of the statute of limitations on medical malpractice claims, the date of injury could be much later than the date of the wrongful act where the plaintiff suffers no physical harm until months or years after the wrongful act. (Garabet v. Superior Court (Garabet) (2007) 151 Cal.App.4th 1538, 1535.) Once there is a manifestation of the injury in some significant way, the three-year limitations period begins to accrue. )(Id.) An “injury” is “manifested” for purposes of commencing the three-year limitations period governing medical malpractice claims when it has become evidenced in some significant fashion, regardless of whether plaintiff actually becomes aware of injury. (Marriage & Family Center v. Superior Court (1991) 228 Cal.App.3d 1647, 1652-1653.) “Irrespective of the one-year provision of [Code of Civil Procedure] section 340.5, its three-year provision ‘provides an outer limit which terminates all malpractice liability and it commences to run when the patient is aware of the physical manifestations of [his] injury without regard to awareness of the negligent cause.’” (Artal v. Allen (2003) 111 Cal.App.4th 273, 282.)

In Garabet, the patient brought an action against a doctor and lasik eye clinic. Plaintiff underwent lasik surgery on both eyes on August 8, 1998 and began to experience side effects within a few weeks of the surgery. (Garabet v. Superior Court, supra, 151 Cal.App.4th at 1542.) The court held that the patient’s cause of action accrued and the three-year statute of limitations period began to run when the patient first experienced side effects following the lasik eye surgery rather than from the date of his eye surgery. (Id. at 1551.)

Here, while Barbara’s first hip replacement occurred on September 4, 2007, she did not experience any negative physical side effects of her surgery until December 2016. As Barbara did not experience physical manifestations of her injury until December 2016, her date of injury did not occur until then. Here, the date of injury and discovery are the same. The one-year statute of limitations is operative here because it expired first in December 2017, one year after Barbara’s date of injury. The Court finds that Plaintiffs commenced this action against West Hills in a timely manner when they filed it on November 20, 2017, within one year after Barbara’s injury manifested itself.

West Hills has not met its initial burden of showing that that it is entitled to summary judgment or adjudication based on evidence of material facts. Therefore, the burden does not shift to Plaintiffs to demonstrate a triable issue of material fact.

e. Eighth Cause of Action – Ruben’s Loss of Consortium

Loss of consortium requires: (1) a valid and lawful marriage between the plaintiff and injured party, at the time of the injury; (2) tortious injury to the plaintiff’s spouse; (3) loss of consortium suffered by the plaintiff; and (4) loss proximately causes by defendant’s act. (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)

To meet is initial burden on Ruben’s loss of consortium claim, West Hills must show there is no triable issue of material fact that Ruben cannot prove at least one of the elements of his claim. West Hills argues Ruben’s loss of consortium claim cannot survive without Barbara being able to sustain her claims against it. Since the Court has rejected West Hills’ attacks on Barbara’s underlying claims, however, West Hills’ contention is unpersuasive. For the reasons explained above, West Hills has not met its initial burden of demonstrating its entitlement to judgment in its favor on Ruben’s loss of consortium claim.

IV. CONCLUSION

For the foregoing reasons, West Hills’ motions for summary judgment and, alternatively, for summary adjudication are DENIED.

Plaintiffs are ordered to give notice of the Court’s ruling.

DATED: July 28, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court

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