United States District Court, D. Oregon
ANGELA K. PARKER, Plaintiff,
ORTHOFIX INC. and ORTHOFIX HOLDINGS, INC., Defendants.
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
OPINION AND ORDER
Michael H. Simon United States District Judge.
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.
Summary Judgment Generally
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,
Evidence Considered at Summary Judgment
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.
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.
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.
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.
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 ...