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This case was last updated from Los Angeles County Superior Courts on 05/23/2021 at 15:40:24 (UTC).

NEISY OLIVERA, AN INDIVIDUAL VS X-SPINE SYSTEMS, INC., UNKNOWN ENTITY, ET AL.

Case Summary

On 06/15/2020 NEISY OLIVERA, AN INDIVIDUAL filed a Personal Injury - Other Product Liability lawsuit against X-SPINE SYSTEMS, INC , UNKNOWN ENTITY. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is EDWARD B. MORETON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2400

  • Filing Date:

    06/15/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Product Liability

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

EDWARD B. MORETON

 

Party Details

Plaintiff

OLIVERA AN INDIVIDUAL NEISY

Defendants

X-SPINE SYSTEMS INC. UNKNOWN ENTITY

XTANT MEDICAL A MONTANA CORPORATION

TOVAR AN INDIVIDUAL RICHARD

NEXXT SPINE LLC

Attorney/Law Firm Details

Plaintiff Attorney

AZIZI DANIEL

Defendant Attorneys

PERSKY JENNIFER

STRICKLIN KATHLEEN ANNE

 

Court Documents

Answer

4/2/2021: Answer

Answer

4/2/2021: Answer

Notice of Posting of Jury Fees

4/1/2021: Notice of Posting of Jury Fees

Answer

3/23/2021: Answer

Amended Complaint - AMENDED COMPLAINT (1ST)

2/11/2021: Amended Complaint - AMENDED COMPLAINT (1ST)

Amended Complaint - AMENDED COMPLAINT (1ST)

1/19/2021: Amended Complaint - AMENDED COMPLAINT (1ST)

Objection - OBJECTION DEFENDANT NEXXT SPINE, LLCS OBJECTION TO PLAINTIFFS UNTIMELY FIRST AMENDED COMPLAINT FOR DAMAGES

1/22/2021: Objection - OBJECTION DEFENDANT NEXXT SPINE, LLCS OBJECTION TO PLAINTIFFS UNTIMELY FIRST AMENDED COMPLAINT FOR DAMAGES

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE)

1/26/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE)

Declaration - DECLARATION DECLARATION OF KATIE A. STRICKLIN IN SUPPORT OF DEFENDANT NEXXT SPINE, LLCS DEMURRER TO PLAINTIFFS COMPLAINT FOR DAMAGES

11/30/2020: Declaration - DECLARATION DECLARATION OF KATIE A. STRICKLIN IN SUPPORT OF DEFENDANT NEXXT SPINE, LLCS DEMURRER TO PLAINTIFFS COMPLAINT FOR DAMAGES

Answer

9/29/2020: Answer

Proof of Service by Substituted Service

8/13/2020: Proof of Service by Substituted Service

Proof of Service by Substituted Service

8/13/2020: Proof of Service by Substituted Service

Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURE AND HEARING DATES

6/23/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURE AND HEARING DATES

PI General Order

6/23/2020: PI General Order

Summons - SUMMONS ON COMPLAINT

6/15/2020: Summons - SUMMONS ON COMPLAINT

Civil Case Cover Sheet

6/15/2020: Civil Case Cover Sheet

Notice of Case Assignment - Unlimited Civil Case

6/15/2020: Notice of Case Assignment - Unlimited Civil Case

Complaint

6/15/2020: Complaint

13 More Documents Available

 

Docket Entries

  • 06/12/2023
  • Hearing06/12/2023 at 08:30 AM in Department 27 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal

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  • 12/13/2021
  • Hearing12/13/2021 at 08:30 AM in Department 27 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 11/29/2021
  • Hearing11/29/2021 at 10:00 AM in Department 27 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 05/03/2021
  • DocketNotice of Change of Address or Other Contact Information; Filed by NEXXT SPINE, LLC (Defendant)

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  • 04/02/2021
  • DocketAnswer; Filed by XTANT MEDICAL, A MONTANA CORPORATION (Defendant)

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  • 04/02/2021
  • DocketAnswer; Filed by X-SPINE SYSTEMS, INC., UNKNOWN ENTITY (Defendant)

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  • 04/01/2021
  • DocketNotice of Posting of Jury Fees; Filed by NEXXT SPINE, LLC (Defendant)

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  • 03/23/2021
  • DocketAnswer; Filed by NEXXT SPINE, LLC (Defendant)

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  • 02/11/2021
  • DocketAmended Complaint ( (1st)); Filed by NEISY OLIVERA, AN INDIVIDUAL (Plaintiff)

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  • 01/26/2021
  • Docketat 3:30 PM in Department 27, Edward B. Moreton, Presiding; Hearing on Demurrer - without Motion to Strike - Held

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9 More Docket Entries
  • 09/29/2020
  • DocketAnswer; Filed by X-SPINE SYSTEMS, INC., UNKNOWN ENTITY (Defendant)

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  • 09/29/2020
  • DocketAnswer; Filed by XTANT MEDICAL, A MONTANA CORPORATION (Defendant)

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  • 08/13/2020
  • DocketProof of Service by Substituted Service; Filed by NEISY OLIVERA, AN INDIVIDUAL (Plaintiff)

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  • 08/13/2020
  • DocketProof of Service by Substituted Service; Filed by NEISY OLIVERA, AN INDIVIDUAL (Plaintiff)

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  • 06/23/2020
  • DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedure and Hearing Dates); Filed by Clerk

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  • 06/23/2020
  • DocketPI General Order; Filed by Clerk

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  • 06/15/2020
  • DocketSummons (on Complaint); Filed by NEISY OLIVERA, AN INDIVIDUAL (Plaintiff)

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  • 06/15/2020
  • DocketCivil Case Cover Sheet; Filed by NEISY OLIVERA, AN INDIVIDUAL (Plaintiff)

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  • 06/15/2020
  • DocketComplaint ( (1st)); Filed by NEISY OLIVERA, AN INDIVIDUAL (Plaintiff)

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  • 06/15/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: 20STCV22400    Hearing Date: January 26, 2021    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

NEISY OLIVERA,

Plaintiff,

vs.

X-SPINE SYSTEMS, INC., et al.,

Defendants.

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.20STCV22400

[TENTATIVE] ORDER

Dept. 27

3:30 p.m.

January 26, 2021

I.INTRODUCTION

On June 15, 2020, Neisy Xtant Nexxt Plaintiff asserts causes of action for Strict Product Liability and Negligence. 

On November 30, 2020, Defendant filed a motion to strike and demurrer.  Plaintiff did not file an Opposition. n January 22, 2021, Plaintiff filed a First Amended Complaint.  However, she did so without leave of court or stipulation.   Therefore, the Court proceeds to examine Defendant’s demurrer and motion to strike.  The Court also, on its on motion, strikes the .  

This action revolves around pedicle screws, which are a medical device used in spinal fusion procedures.  Plaintiff brought this action for injuries allegedly sustained from her physician’s use of Defendant’s pedicle screws in a spinal fusion procedure performed in 2019.  

Defendant demurs to each of Plaintiff’s causes of action on the following grounds:

  1. Plaintiff’s strict product liability claim fails because: (a) California prohibits claims of design defect against implantable medical devices; ny warning defect claim would have to allege that Defendant provided inadequate warnings to Plaintiff’s physician and that such warnings would have altered Plaintiff’s physician’s decision to use the pedicle screws; and (c) any manufacturing defect claim fails to allege how the pedicle screws used on Plaintiff differed from Defendant’s intended design or other identical products;

  1. California prohibits claims for breach of implied warranties t claim;

  1. There is no independent cause of action for negligent infliction of emotional distress (“NIED”).  

II.LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.¿(City of Atascadero v. Merrill Lynch, Pierce, Fenner ¿(1998) 68 Cal.App.4th 445, 459.)¿¿“We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.¿¿We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.¿¿[Citation.]”¿¿(Mitchell v. California Department of Public Health¿(2016) 1 Cal.App.5th 1000, 1007;¿Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)¿¿Allegations are to be liberally construed.¿¿(Code Civ. Proc., § 452.)¿¿A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.¿(Code Civ. Proc., § 430.10, subd. (e).)¿

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.¿¿(Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿The burden is on the complainant to show the Court that a pleading can be amended successfully.¿¿(Ibid.)

III.DISCUSSION

Before filing a demurrer , the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).)  

Defense counsel states that on November 20, 2020, she sent Plaintiff’s counsel a letter to initiate the meet and confer process.  The letter set forth Defendant’s position and arguments ’s counsel did not respond to the letter.  

Strict Liability

The elements of a strict products liability cause of action are a [1] defect in the manufacture or design of the product or a failure to warn, [2] causation, and [3] injury.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)¿

Design Defect

Defendant first contendthat California law prohibits strict liability claims for design defect against manufacturers of medical devices available only through the services of a physician. This Brown v. Superior Court drug cases because public policy supports development and market exposure of prescription drugs even if they post serious risks. (Id. at pp. 1061, 1063, 1068-1069.) Brown Id. at p. 1065) or by failure to warn of unknowable risks (Id. at p. 1066.) Brown Id. at p. 1069.)¿ extended the Brown (See e.g., Artiglio barring design defect claim against manufacturer of ]; Plenger Alza design defect claim against the manufacturer of intrauterine devices].)  

Plaintiff alleges that Defendant manufactures the pedicle screws at issue.  However, based on the cases stated above, Plaintiff’s strict liability action on this ground is barred. 

Failure to Warn

Howevera plaintiff may still bring suit against the manufacturer of a medical device under a strict liability failure to warn theory.  In Carlin v. Superior Court Id. at p. 1117.)¿

Here, Defendant argues Plaintiff’s allegations are still too conclusory and do not allege how their warnings were deficient. t.  The Court agrees fair notice about her claims.  Plaintiff’s Complaint does not adequately plead a claim for strict liability under a failure to warn theory. 

Manufacturing Defect

Next, Defendant argues Plaintiff’s manufacturing defect claim fails.  Strict liability for a “manufacturing defect” may be imposed if¿(1)¿the defendant manufactured the product and,¿(2)¿when the product left the particular defendant’s control, it¿differed from the manufacturer’s¿intended result¿or from apparently identical products of the same manufacturer,¿(3)¿the product was used in a manner reasonably foreseeable by the defendant but nonetheless caused plaintiff injury, and (4) the product’s defect was a substantial factor in causing plaintiff’s injury.¿ (Barker v. Lull Engineering Co., Inc.

Plaintiff alleges that the pedicle screw “contained a manufacturing defect when it left each Defendant’s possession Compl., ¶ 22.)  Plaintiff did not adequately plead that the pedicle screws that were used differed from Defendant’s intended result or apparently identical products.  Accordingly, Plaintiff has not adequately pled a claim for strict liability based on a manufacturing defect. 

Breach of Implied Warranties

Defendant further argues that Plaintiff’s claims under the theory of breach of implied warranties fails because there is no privity of contract between Defendant and Plaintiff.  Plaintiff did not purchase the pedicle screws from Defendant, her physician did.  “[P]rivity Adams v. I-Flow Corp (C.D. Cal. Mar. 30, 2010) 2010 WL 1339948, citing Blanco v. Baxter Healthcare Corp. (2008) 158 Cal. App. 4th 1039, 1058-9.)  In Blanco, the Court of Appeal confirmed the privity requirement as to claims for breach of implied warranties of merchantability and fitness in a case involving a mitral heart valve. The court Id. at 1058-9.) (See also, McCarty v. Johnson & Johnson (E.D. Cal. June 29, 2010) 2010 WL 2629913 at *6 (in an orthopaedic nder Quatela . (N.D. Cal. 2010) 820 F. Supp. 2d 1045, 1047-8 (same in prescription infusion pump case).) Accordingly, Plaintiff has not and cannot state sufficient facts to constitute a legally cognizable claim for breach of implied warranty against Defendant.

Negligent Infliction of Emotional Distress

Lastly, Defendant argues that Plaintiff’s NIED cause of action fails .  The Court agrees

California courts have repeatedly recognized that¿NIED¿is not an independent tort, but the tort of negligence such that the traditional elements of duty, breach of duty, causation, and damages apply. (See, e.g.,¿Spates v.¿Dameron¿Hospital Association¿(2003) 114 Cal.App.4th 208, 213;¿Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc.¿(1989) 48 Cal.3d 583, 588.) “[T]here is no duty to avoid causing emotional distress to another, and that damages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff.” (Potter v. Firestone Tire & Rubber Co.¿(1993) 6 Cal.4th 965, 984.) “[U]nless¿the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” (Id.¿at 985.) “Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.” (Id.)¿¿

Plaintiff did not oppose the Demurrer, but because there is a reasonable possibility of amendment, the Court grants leave to amend as to Plaintiff’s strict liability claim on the grounds of failure to warn and manufacturing defect.  (Smith v. County of Kern 1993( 20

IV.CONCLUSION

Defendant’s Demurrer to the First Cause of Action is SUSTAINED without leave as to a theory based on design defect, but

Defendant’s Demurrer to the Third Cause of Action for NIED is SUSTAINED without leave to amend. 

Defendant’s Demurrer to the Fourth and Fifth Cause of action for Breach of Implied Warranties is SUSTAINED without leave to amend. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  

Dated this 26th January 21

Hon. Edward B. Moreton, Jr.

Judge of the Superior Court

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