Mendoza v. Intuitive Surgical, Inc.

Opinion

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11

12 DONNA MENDOZA, Case No. 18-CV-06414-LHK

13 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S 14 v. MOTION FOR SUMMARY JUDGMENT 15 INTUITIVE SURGICAL, INC., Re: Dkt. No. 66 16 Defendant. 17 18 Plaintiff Donna Mendoza (“Plaintiff”) brings this action against Defendant Intuitive 19 Surgical, Inc. (“Defendant”) alleging negligence, products liability, and strict liability claims 20 arising from alleged defects in Defendant’s da Vinci robotic surgery system. ECF No. 20 (“Am. 21 Compl.”). Before the Court is Defendant’s motion for summary judgment.1 Having considered 22 the parties’ briefs, the relevant law, and the record in this case, the Court GRANTS in part and 23 DENIES in part Defendant’s motion for summary judgment. 24

25 1 Defendant’s motion for summary judgment contains a notice of motion that is separately paginated from the memorandum of points and authorities in support of the motion. See ECF No. 26 66 at i. Civil Local Rule 7-2(b) provides that the notice of motion and the points and authorities in support of the motion must be contained in one document with a combined limit of 25 pages. See 27 Civ. Loc. R. 7-2(b). 1 I. BACKGROUND 1 A. Factual Background 2 1. The Parties 3 Plaintiff Donna Mendoza is a citizen of Indiana who resides in Hammond, Indiana. Am. 4 Compl. ¶ 3. Defendant Intuitive Surgical, Inc. is a Delaware corporation with a principal place of 5 business in Sunnyvale, California. Id. ¶ 4. 6 2. The da Vinci System 7 Defendant produces the da Vinci system, which is a robotic, “multi-armed, remote 8 controlled, surgical device.” Id. ¶ 9. Defendant also produces “‘EndoWrist’ instruments for use in 9 surgery by the [da Vinci system].” Id. ¶ 10. “The most commonly used EndoWrist instrument is 10 the Hot Shears Monopolar Curved Scissors” (“MCS”). Id. ¶ 46. The MCS “allows doctors to 11 both cut and cauterize tissue during surgical procedures,” and the MCS cauterizes “through the 12 application of monopolar electricity.” Id. ¶ 47. The MCS requires use of a “tip cover accessory” 13 (“TCA”) which covers the MCS and “insulate[s] the instrument’s metal parts” to “prevent the 14 electricity from spreading to unwanted areas.” Id. The MCS “is used in virtually all da Vinci 15 hysterectomies.” Id. ¶ 46. 16 3. Plaintiff’s Surgery and the MCS Recall 17 On October 12, 2011, Plaintiff underwent a hysterectomy and the operating surgeon, Dr. 18 Howard Marcus (“Marcus”), used a da Vinci system with an MCS and TCA. Id. ¶¶ 52, 56. At the 19 outset of the procedure, Marcus encountered extensive adhesions that Marcus was required to 20 remove before commencing the hysterectomy. ECF No. 74-25 at 6. Marcus used an 21 “EndoShears” device to remove the adhesions, which took roughly thirty minutes. Id. Marcus 22 then completed the hysterectomy using the da Vinci system, and Marcus did not note any injury to 23 Plaintiff. Id. Plaintiff spent the night in the hospital and was discharged the following day in 24 good condition. Id. at 2. However, on October 15, 2011, Plaintiff presented to the emergency 25 room with severe abdominal pain. ECF No. 76-2 (“Salsbury Decl.”) at 5. Plaintiff stated that 26 Plaintiff could not walk or breathe due to the pain. Id. On October 16, 2011, Plaintiff was treated 27 2 1 with a bowel resection, which Plaintiff initially tolerated well. Id. Over the following months, 2 however, Plaintiff returned to the hospital over the following months as a result of further pain. 3 Id. 4 On May 8, 2013, Defendant issued a notice that internal testing had revealed an issue in 5 the MCS model used in Plaintiff’s surgery. ECF No. 73-10. Specifically, Defendant concluded 6 that Defendant “identified the potential for micro-cracking of the main tube near the distal end of 7 the shaft.” Id. at 1. Defendant indicated that “micro-cracking” of this nature produced the 8 “potential for insulation failure, resulting in a pathway for electrosurgical energy to leak to tissue 9 and potentially cause unintended burns.” Id. Defendant further noted that “the micro-cracks . . . 10 are not visible to the naked eye and require magnification to visualize.” Id. at 4. On May 31, 11 2013, Defendant recalled the MCS model used during Plaintiff’s surgery. Am. Compl. ¶ 60; ECF 12 No. 73-23. 13 B. Procedural History 14 On October 19, 2018, Plaintiff filed a complaint against Defendant in this district and 15 alleged various tort claims arising from injuries that Plaintiff allegedly suffered because of defects 16 in Defendant’s da Vinci system. See ECF No. 1. 17 On January 3, 2019, Defendant filed a motion to dismiss Plaintiff’s complaint. ECF No. 18 11. However, on January 17, 2019, Plaintiff filed an amended complaint, Am. Compl., and on 19 January 22, 2019, United States District Judge Beth Labson Freeman terminated Defendant’s 20 motion to dismiss as moot. ECF No. 21. Defendant’s amended complaint alleges the following 21 causes of action under California law: (1) negligence; (2) “products liability – design defect”; (3) 22 “products liability – failure to warn”; (4) “strict liability – manufacturing defect”; and (5) punitive 23 damages. Am Compl. ¶¶ 66–100. 24 On January 28, 2019, the case was reassigned to the undersigned judge, ECF No. 24, and 25 on the same day, the Court related the instant case to Trump v. Intuitive Surgical Inc., No. 5-18- 26 CV-06413-LHK (N.D. Cal. filed Oct. 19, 2018), and to Bohannon v. Intuitive Surgical, Inc., No. 27 3 1 5-18-CV-02186-LHK (N.D. Cal. filed Apr. 12, 2018). ECF No. 23. 2 On March 6, 2020, Defendant filed Daubert motions to exclude the expert opinions of Dr. 3 Helen Salsbury (“Salsbury”) and Mr. Roger Odell (“Odell”). ECF Nos. 67, 69. On April 24, 4 2020, the Court denied both of Defendant’s Daubert motions. ECF No. 80. 5 On March 6, 2020, Defendant also filed the instant motion for summary judgment. ECF 6 No. 66 (“Mot.”). On March 27, 2020, Plaintiff filed an opposition, ECF No. 73-2 (“Opp’n”), and 7 on April 3, 2020, Defendant filed a reply, ECF No. 78 (“Reply”). 8 II. LEGAL STANDARD 9 Summary judgment is proper where the pleadings, discovery, and affidavits show that 10 there is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as 11 a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of 12 the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material 13 fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the 14 nonmoving party. Id. 15 The party moving for summary judgment bears the initial burden of identifying those 16 portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue 17 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party 18 meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own 19 affidavits or discovery, “set forth specific facts showing that there is a genuine issue for trial.” 20 Fed. R. Civ. P. 56(e). If the nonmoving party fails to make this showing, “the moving party is 21 entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323. 22 At the summary judgment stage, the Court must view the evidence in the light most 23 favorable to the nonmoving party: if evidence produced by the moving party conflicts with 24 evidence produced by the nonmoving party, the judge must assume the truth of the evidence set 25 forth by the nonmoving party with respect to that fact. See Leslie v. Grupo ICA, 198 F.3d 1152, 26 1158 (9th Cir. 1999). 27 4 III. DISCUSSION 1 Defendant argues that Defendant is entitled to summary judgment because Plaintiff has 2 failed to produce any evidence that a defective MCS or TCA was used during Plaintiff’s surgery. 3 Mot. at 6. Defendant also argues that Defendant is entitled to summary judgment because Plaintiff 4 cannot show that a defect in the MCS or TCA caused Plaintiff’s injury. Id. at 12. First, the Court 5 briefly addresses Plaintiff’s TCA claims. The Court then analyzes Defendant’s arguments about 6 the MCS in turn. 7 A. Summary Judgment on TCA Products Liability Claims Is Appropriate. 8 As an initial matter, Defendant argues that Defendant is entitled to summary judgment on 9 Plaintiff’s products liability claims as to the TCA. Reply at 13. Indeed, although Defendant 10 makes numerous arguments for summary judgment on Plaintiff’s TCA-related claims, Plaintiff 11 fails to respond to these arguments. E.g., Mot. at 6 (“Plaintiff has offered no evidence that there 12 was anything defective in the manufacturing of any tip cover, let alone the one specific to Ms. 13 Mendoza’s surgery, that made it different from other tip covers.”). Instead, in opposition, Plaintiff 14 focuses exclusively on alleged defects in the MCS, such as the development of micro-cracks. See, 15 e.g., Opp’n at 9 (“Micro-Cracks Caused Ms. Mendoza’s Bowel Injury”). 16 “A district court may not grant a motion for summary judgment solely because the 17 opposing party has failed to file an opposition.” Van Mathis v. Safeway Grocery, No. C 09–2026 18 WHA (PR), 2010 WL 3636213, at *1 (N.D. Cal. Sept. 14, 2010) (citing Cristobal v. Siegel, 26 19 F.3d 1488, 1494–95 & n.4 (9th Cir. 1994)). However, a court may grant summary judgment if the 20 movant’s papers are themselves sufficient to support the motion and do not on their face reveal a 21 genuine issue of material fact. See, e.g., Bains v. Director of Corrections, No. C 04-1619 WHA 22 (PR), 2007 WL 2253563, at *1 (N.D. Cal. Aug. 3, 2007). In the instant case, Defendant’s 23 arguments as to the TCA are sufficient to entitle Defendant to summary judgment. E.g., Mot. at 6 24 (“Plaintiff has offered no evidence that there was anything defective in the manufacturing of any 25 tip cover, let alone the one specific to Ms. Mendoza’s surgery, that made it different from other tip 26 covers.”). Moreover, Defendant’s motion does not on its face reveal a genuine issue of material 27 5 1 fact about the TCA that precludes the entry of summary judgment. Accordingly, the Court 2 GRANTS Defendant’s motion for summary judgment on Plaintiff’s products liability claims 3 insofar as they concern defects in the TCA. The Court now proceeds to consider Defendant’s 4 arguments for summary judgment as to the MCS. 5 B. There is a Genuine Issue of Material Fact with Respect to Whether a Defective MCS Was Used in Plaintiff’s Hysterectomy. 6 First, Defendant claims that there is no genuine issue of material fact as to whether a 7 defective MCS was used in Plaintiff’s surgery. Specifically, Defendant asserts (1) that there is no 8 genuine issue of material fact as to whether the MCS used in Plaintiff’s hysterectomy was 9 defectively manufactured; (2) that there is no genuine issue of material fact as to whether the MCS 10 used in Plaintiff’s hysterectomy was defectively designed; and (3) that there is no genuine issue of 11 material fact as to whether the MCS used in Plaintiff’s hysterectomy was defective because of a 12 failure to warn. The Court considers these arguments in turn. 13 1. There Is a Genuine Issue of Material Fact as to Whether the MCS Suffered from 14 a Manufacturing Defect. 15 Defendant argues that summary judgment on Defendant’s manufacturing products liability 16 claim is proper. Mot. at 7. Specifically, Defendant argues that “there is no direct evidence that the 17 MCS used in [Plaintiff’s] surgery had microcracks.” Id. The Court disagrees. 18 “A product with a manufacturing defect ‘is one that differs from the manufacturer’s 19 intended result or from other ostensibly identical units of the same product line.’” Dunson v. 20 Cordis Corp., 2016 WL 3913666, at *6 (N.D. Cal. July 20, 2016) (quoting Barker v. Lull Eng’g 21 Co., 20 Cal. 3d 413, 430 (Cal. 1978)). Here, Plaintiff has produced a genuine issue of material 22 fact on the question of whether the MCS used in Plaintiff’s surgery suffered from a manufacturing 23 defect. 24 As noted, Defendant focuses on the absence of “direct evidence” that the MCS used in 25 Plaintiff’s surgery suffered from manufacturing defects. Mot. at 7. However, Plaintiff may prove 26 a manufacturing defect with sufficient circumstantial evidence. See, e.g., Notmeyer v. Stryker 27 6 1 Corp., 502 F.Supp.2d 1051, 1059 (N.D. Cal. 2007) (explaining that under California law, a 2 plaintiff may “prov[e] a manufacturing defect using only circumstantial evidence”); Hinckley v. La 3 Mesa R.V. Center, Inc., 158 Cal. App. 3d 630, 643 (1984) (“Where a product fails to such an 4 extent that its examination can furnish no clue as to the specific part that failed, the facts (1) the 5 accident occurred shortly after sale, (2) plaintiffs did nothing to bring about the accident, and (3) 6 expert testimony suggests a defect in fact was responsible for the accident, allow the issue of 7 whether defendants are strictly liable for plaintiffs’ injuries to be submitted to the jury.”). 8 Plaintiff has presented sufficient circumstantial evidence that the MCS used in Plaintiff’s 9 surgery suffered from a manufacturing defect to produce a genuine issue of material fact on this 10 issue. Indeed, Plaintiff produced an expert report in which Salsbury, an obstetrician and 11 gynecologist, conducted a differential diagnosis and ultimately concluded that Plaintiff’s 12 “complications and subsequent procedures were caused by thermal injury to the bowel as a result 13 of the da Vinci System.” Salsbury Decl. at 6. Salsbury surveyed numerous potential causes and 14 concluded that “[a]fter ruling out the possibilities [], all that remains is a defect in the da Vinci 15 System.” Id. at 9. Under California law, “[t]he plaintiff’s expert may satisfactorily demonstrate 16 proof of a defect by excluding other possible causes.” Lowe v. TDY Industries, Inc., No. B172635, 17 2005 WL 1983750, at *8 (Cal. Ct. App. Aug. 18, 2005). 18 Salsbury’s conclusion is buttressed by additional circumstantial evidence. In May 2013, 19 the MCS model that was used in Plaintiff’s surgery was recalled by Defendant due to the fact that 20 testing revealed that the “MCS may develop micro-cracks near the scissor end of the shaft, which 21 could create a pathway for electrosurgical energy to pass to tissue.” ECF No. 73-30; Am. Compl. 22 ¶ 60. Further, Defendant’s internal documents indicate that micro-cracks on the MCS are “not 23 visible to the naked eye and require magnification to visualize,” which is consistent with the defect 24 having gone unnoticed at the time of Plaintiff’s surgery.2 ECF No. 73-10 at 4. 25

26 2 Because the Court concludes that the expert report of Salsbury and the foregoing circumstantial evidence are admissible and raise a genuine issue of material fact as to the presence of a 27 manufacturing defect in the MCS, the Court need not address whether Plaintiff’s Exhibits 16–22 7 1 Defendant cites two cases to argue that Plaintiff has failed to present a genuine issue of 2 material fact notwithstanding the foregoing. First, Defendant cites Yun v. Ethicon, Inc., No. C 00- 3 0487 CRB, 2002 WL 732276 (N.D. Cal. Apr. 22, 2002). However, Yun is highly distinguishable. 4 In Yun, the plaintiff’s expert declared that the plaintiff’s injury appeared to stem from the area in 5 the plaintiff’s body in which allegedly defective sutures were used. Id. at *2. Moreover, the 6 plaintiff presented evidence that allegedly defective sutures, which were subject to a recall, “may 7 not have been removed” from the hospital’s shelves, and hence may have been in the hospital at 8 the time of the plaintiff’s surgery. Id. at *3. In the instant case, Plaintiff’s evidence is far stronger. 9 Unlike the expert in Yun, Salsbury specifically opines that a defect in the MCS is the most likely 10 cause of Plaintiff’s injury. Indeed, according to Salsbury, Plaintiff “most likely suffered a thermal 11 injury to her small bowel caused by stray electricity from the da Vinci System.” Salsbury Decl. at 12 7. Moreover, unlike in Yun, it is undisputed that the MCS model used in Plaintiff’s surgery was 13 later subject to a recall due to concerns about a manufacturing defect. ECF No. 73-30. 14 Second, Defendant cites Willett v. Baxter Internat’l, Inc., 929 F.2d 1094 (5th Cir. 1991) 15 (Wisdom, J.). Willett is even farther afield from the instant case, however. In Willett, the court 16 simply rejected the plaintiffs’ bare argument that “the existence of soot pockets in some [heart] 17 valves is sufficient to create a factual issue as to whether their [heart] valves have soot pockets.” 18 Id. at 1097. Here, Plaintiff has put forward far more evidence than the existence of a 19 manufacturing defect in other MCSs. Again, Plaintiff has presented expert evidence that ruled out 20 other causes of Plaintiff’s injury and deemed a manufacturing defect in the MCS to be the most 21 likely cause.3 See generally Salsbury Decl. 22 Thus, the Court concludes that there is a genuine issue of material fact as to whether the 23 MCS used in Plaintiff’s surgery suffered from a manufacturing defect. Accordingly, the Court 24 25 and 27–48 constitute inadmissible evidence. Reply at 7–8. 26 3 For the same reason, Defendant is not entitled to summary judgment merely because Plaintiff lacks direct evidence that the “conditions [that] must occur simultaneously for energy to leak from 27 a microcrack during a surgery” in fact existed during Plaintiff’s surgery. Reply at 3. 8 1 DENIES Defendant’s motion for summary judgment on this ground. The Court now turns to 2 Defendant’s argument as to Plaintiff’s design defect products liability claim. 3 2. There Is a Genuine Issue of Material Fact as to Whether the MCS Suffered from a Design Defect. 4 Defendant contends that “[d]esign defect claims against manufacturers of prescription 5 medical devices, like [Defendant], are not permitted in California.” Mot. at 9. Accordingly, 6 Defendant argues that summary judgment is proper as to Plaintiff’s design defect claim. Id. The 7 Court disagrees. 8 Defendant is correct that under California law, manufacturers of prescription medical drugs 9 and devices are not subject to strict liability for design defects. See, e.g., Zetz v. Bos. Sci. Corp., 10 398 F. Supp. 3d 700, 709 (E.D. Cal. 2019) (“Boston Scientific argues that Plaintiffs’ claim for 11 design defect under the strict liability theory fails as a matter of law because California precludes 12 liability for design defect under a strict liability theory for manufacturers of prescription medical 13 devices. This is true.”). However, unlike Plaintiff’s manufacturing defect products liability claim, 14 Plaintiff does not allege a strict liability theory in connection with Plaintiff’s design defect 15 products liability claim. Compare Am. Compl. ¶¶ 71–83 (outlining claim for “Products Liability – 16 Design Defect”), with id. ¶¶ 92–95 (outlining claim for “Strict Liability – Manufacturing Defect”). 17 Under California law, “the appropriate test for determining a prescription drug [or device] 18 manufacturer’s liability for a design defect involves an application of the ordinary negligence 19 standard.” Garrett v. Howmedica Osteonics Corp., 214 Cal. App. 4th 173, 182 (2013). 20 Accordingly, “[u]nder the negligence standard as reflected in comment k to section 402A of the 21 Restatement Second of Torts, adopted in Brown, a manufacturer is liable for a design defect only 22 if it failed to warn of a defect that it either knew or should have known existed.” Id. Defendant 23 argues that there is no genuine issue of material fact on this question because the expert reports of 24 Plaintiff’s two experts, Salsbury and Odell, must be excluded under Daubert. Mot. at 10–11. The 25 Court denied Defendant’s Daubert motions in the instant case. ECF No. 80. Accordingly, 26 Defendant’s argument that there is no genuine issue of material fact on Plaintiff’s design defect 27 9 1 products liability claim must fail. 2 The Court therefore DENIES Defendant’s motion for summary judgment on Plaintiff’s 3 design defect products liability claim as to the MCS. Finally, the Court turns to Plaintiff’s failure 4 to warn products liability claim. 5 3. There Is a Genuine Issue of Material Fact as to Whether the MCS Was Defective Because of Failure to Warn. 6 Defendant claims that Defendant is entitled to summary judgment as to Plaintiff’s failure 7 to warn products liability claim. Specifically, Defendant claims that Plaintiff “failed to articulate 8 why [Defendant’s] warnings were not ‘adequate,’” also that “Plaintiff has no evidence that Dr. 9 Marcus would have performed the surgery differently had he been provided the ‘adequate’ 10 warnings.” Mot. at 12. Again, the Court disagrees. 11 As to Defendant’s first argument, Plaintiff does indeed articulate the nature of Plaintiff’s 12 failure to warn products liability claim. According to Plaintiff, Defendant “failed to warn 13 physicians about micro-cracks or of the increased risk of injury resulting from compromised 14 insulation integrity.” Opp’n at 18. To the extent that Defendant argues that no such warning was 15 in fact required, Defendant raises a question of fact for the jury. Indeed, under California law, 16 “[i]n general, the adequacy of the warning is a question of fact for the jury.” Oxford v. Foster 17 Wheeler LLC, 177 Cal. App. 4th 700, 717 (2009). 18 As to Defendant’s second argument, Defendant contends that because Plaintiff never 19 deposed Marcus, Plaintiff lacks evidence that Marcus’s behavior would have changed if Marcus 20 had in fact received a different warning. Mot. at 12. However, California courts “have long 21 recognized that proving causation in a defective products case can be difficult and, indeed, that 22 direct evidence of causation may not exist.” Corbo v. Taylor-Dunn Manufacturing Company, 23 A135393, 2014 WL 576268, at *7 (Cal. App Ct. Feb. 14, 2014). Accordingly, “a plaintiff may 24 carry his burden of proving causation by circumstantial evidence.” Id. Defendant is not entitled to 25 summary judgment on Plaintiff’s failure to warn products liability claim merely because Plaintiff 26 failed to elicit direct evidence that Marcus would have acted differently in the presence of a 27 10 1 different warning. 2 Accordingly, the Court DENIES Defendant’s motion for summary judgment on Plaintiff’s 3 failure to warn products liability claim as to the MCS. The Court now turns to Defendant’s 4 argument that Plaintiff lacks evidence as to the whether any defect in the MCS caused Plaintiff’s 5 injury.4 6 C. There is a Genuine Issue of Material Fact as to Whether a Defective MCS Caused Plaintiff’s Injury. 7 Defendant contends that notwithstanding the foregoing, Defendant is entitled to summary 8 judgment as to all of Plaintiff’s claims for two reasons. First, Defendant contends that “the 9 undisputed evidence shows that [Plaintiff] did not suffer a thermal injury,” which undermines 10 Plaintiff’s theory that a defect in the MCS caused Plaintiff’s injury. Mot. at 14. Second, 11 Defendant contends that “Plaintiff’s only medical causation opinion is unreliable and must be 12 excluded.” Id. at 18. The Court disagrees. 13 First, there is a genuine issue of material fact as to whether Plaintiff suffered a thermal 14 injury during surgery. In her expert report, Salsbury specifically concluded that Plaintiff’s 15 “complications and subsequent procedures were caused by thermal injury to the bowel as a result 16 of the da Vinci System.” Salsbury Decl. at 6 (emphasis added). Defendant argues that Salsbury 17 misremembered Plaintiff’s pathology report as containing a reference to necrosis in order to reach 18 the conclusion that Plaintiff suffered from a thermal injury. Mot. at 14. Even if Defendant is 19 correct on this argument, however, Salsbury provided multiple independent reasons to support the 20 conclusion that Plaintiff suffered from a thermal injury. Indeed, Salsbury relied on the fact that 21 Plaintiff’s bowel-related symptoms were delayed following the surgery, which is consistent with 22 23

24 4 Because the Court rejected Defendant’s argument that evidence of a defect in the MCS is lacking, the Court also necessarily DENIES Defendant’s motion for summary judgment on 25 Plaintiff’s negligence claim based on the same argument. Mot. at 6 n.3. Moreover, “[a] footnote is the wrong place for substantive arguments on the merits of a motion, particularly where such 26 arguments provide independent bases for dismissing a claim not otherwise addressed in the motion.” First Advantage Background Servs. Corp. v. Private Eyes, Inc., 569 F. Supp. 2d 929, 27 935 n.1 (N.D. Cal. 2008). 11 1 thermal injury but not a mechanical injury. Id.; ECF No. 76-4 (“Salsbury Dep.”) at 29:20–22 2 (“With a burn, there’s an initial insult and then the damage of the tissue takes time and the 3 consequence symptomatically also takes time.”). Salsbury further deemed it significant that 4 Marcus did not note any “description of transection or trauma to the bowel” during surgery. 5 Salsbury Decl. at 8; Salsbury Dep. at 34:11–14 (“Well, the surgical report of [Plaintiff’s 6 hysterectomy showed no seen injury to bowel director [sic] by Dr. Marcus, and, yet, there was a 7 bowel injury that’s consistent with a thermal burn.”). The record therefore contains evidence that 8 Plaintiff suffered a thermal injury. 9 Second, Salsbury’s expert report is admissible. Defendant argues that Salsbury’s expert 10 report must be excluded because Salsbury’s differential diagnosis was unreliable. According to 11 Defendant, Salsbury failed to adequately consider and exclude adhesive disease and a defect in 12 another surgical instrument, the “EndoShears,” as possible causes of Plaintiff’s injury. Mot. at 13 16–18. However, the Court has already concluded that Salsbury’s expert report is sufficiently 14 reliable notwithstanding Defendant’s arguments to the contrary. ECF No. 80. As the Court 15 explained, “Defendant may cross-examine Salsbury regarding these potential causes at trial.” Id. 16 at 8; see Stanley v. Novartis Pharms. Corp., 11 F. Supp. 3d 987, 1001 (C.D. Cal. 2014) 17 (“Defendant can cross-examine [the expert] regarding additional factors that he did not rule out 18 during trial.”). Thus, Defendant is not entitled to summary judgment based on lack of admissible 19 evidence about the cause of Plaintiff’s injury. 20 In light of the foregoing, the Court concludes that there is a genuine issue of material fact 21 as to whether Plaintiff’s injury was caused by a defect in the MCS. Thus, the Court DENIES 22 Defendant’s motion for summary judgment on the basis of lack of evidence of causation. 23 IV. CONCLUSION 24 For the foregoing reasons, the Court GRANTS Defendant’s motion for summary judgment 25 on Plaintiff’s products liability claims as to the TCA. The Court DENIES Defendant’s motion for 26 summary judgment in all other respects. 27 12 1 || ITISSO ORDERED. 2 3 Dated: June 10, 2020 4 LUCY H. ch 5 United States District Judge 6 7 8 9 10 11 qg 12

Z 18 19 20 21 22 23 24 25 26 27 13 28 Case No. 18-CV-06414-LHK ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY