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Parker v. Orthofix, Inc.

United States District Court, D. Oregon

February 14, 2019

ANGELA K. PARKER, Plaintiff,

          William J. Macke, William Macke & Associates, Of Attorneys for Plaintiff.

          Michael J. Hurvitz, BOWMAN AND BROOKE LLP, John W. Knottnerus and Stephen P. Yoshida, MB LAW GROUP LLP, Of Attorneys for Defendants


          Michael H. Simon United States District Judge.

         Angela K. Parker asserts a claim of negligence against Orthofix Inc. and Orthofix Holdings, Inc. (collectively, “Defendant”). Defendant manufactures medical implants. In her Complaint, Plaintiff alleges that Defendant was negligent in two respects: (1) by negligently providing inaccurate information to Plaintiff's surgical team before Plaintiff's second unsuccessful surgery; and (2) by negligently manufacturing a medical device with a known and safer option. After Defendant moved for summary judgment against both theories of negligence, Plaintiff conceded her second theory, alleging negligent product design. Accordingly, all that remains before the Court is Plaintiff's first theory, alleging negligent misrepresentation resulting in personal injury. For the reasons that follow, Defendant's motion for summary judgment is granted.


         A. Summary Judgment Generally

         A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). “Where the non-moving party bears the burden of proof at trial, ” however, “the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the non-moving party bears the burden of designating “specific facts demonstrating the existence of genuine issues for trial.” Id. “This burden is not a light one.” Id. The Supreme Court has directed that in such a situation, the non-moving party must do more than raise a “metaphysical doubt” as to the material facts at issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Furthermore, the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986).

         B. Evidence Considered at Summary Judgment

         In evaluating the nonmoving party's facts offered at summary judgment, the Court does “not focus on the admissibility of the evidence's form. [The Court] instead focus[es] on the admissibility of its content.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see also Celotex, 477 U.S. at 324 (“We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.”). At summary judgment, the Court may consider “evidence submitted in an inadmissible form, so long as the underlying evidence could be provided in an admissible form at trial, such as by live testimony.” JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016) “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita, 475 U.S. at 587 (citation and quotation marks omitted); see also Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010); Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1120 (E.D. Cal. 2006); cf. Fed. R. Civ. P. 56(c)(2) (permitting a party to “object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence”). For example, in Fraser the Ninth Circuit considered a diary's contents as evidence to defeat a motion of summary judgment, despite a hearsay challenge, because the contents of the diary “could be admitted into evidence at trial in a variety of ways, ” including that the witness “could testify to all the relevant portions of the diary from her personal knowledge.” Fraser, 342 F.3d at 1037. “Because the diary's contents could be presented in an admissible form at trial, we may consider the diary's contents in the [movant's] summary judgment motion.” Id.


         In 2013, Plaintiff had surgery to decompress and fuse vertebrae in her neck in an attempt to relieve her back and neck pain. As part of this procedure, the surgeon implanted Defendant's Hallmark Anterior Cervical Plating System (the “Orthofix Plate”), a metal implant used to facilitate neck vertebrae fusion. Plaintiff's pain, however, continued after her 2013 surgery, and her physicians referred Plaintiff to Dr. Richard S. Polin, a neurosurgeon. Dr. Polin determined that some of the fusions from Plaintiff's 2013 surgery had failed and that Plaintiff would need a second surgery to fix the earlier fusions and fuse additional vertebrae. Dr. Polin planned to remove the Orthofix Plate, perform the decompression and fusion procedure, and reinstall a new plate made by Aesculap, a different manufacturer of medical devices.

         The second surgery also was unsuccessful. In fact, it could not be completed. The surgical team placed Plaintiff under general anesthesia and made the necessary incisions. As Dr. Polin prepared to remove the Orthofix Plate, he discovered that he lacked the correct “impact driver bit, ” which is a specialized tool needed to remove the locking screws on the Orthofix Plate. To remove these locking screws requires a tri-lobed driver bit. The standard “universal tray” of surgical tools found in the operating room included only square and hexagonal driver bits, not the needed tri-lobed driver bit. During the procedure, the surgical team called Defendant and spoke with one of Defendant's employees, who confirmed that the driver bits in the hospital's universal tray could not remove the Orthofix Plate. Dr. Polin decided to terminate the surgical procedure and leave the Orthofix Plate temporarily in place. Plaintiff then needed a third surgery to complete Dr. Polin's planned procedure with the appropriate tools.

         Defendant and other medical device manufacturers regularly provide, upon request, trays of specialized tools that a surgeon will need to implant or remove the manufacturer's devices. Hospitals routinely request these tools from a manufacturer's local sales representative, who may be an independent contractor. The local sales representative then acquires any needed specialized tools from the manufacturer, delivers the tools to the hospital at least 24 hours in advance of the surgery, and often attends the surgery.

         Dr. Polin performed Plaintiff's second surgery at the Providence Portland Medical Center (“Providence”). That hospital has a supply office responsible for ordering specialized surgical tools after a surgeon either requests those tools or notes that an upcoming surgery will involve installing or removing medical implants. Providence requires that ...

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