Yalter v. Endocare, Inc.

220 F. App'x 657

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2007
• Docket: No. 05-55085
• Status: Published

Opinion

MEMORANDUM

***

Mehmet and Bertha Yalter appeal two aspects of the district court’s grant of summary judgment in favor of the defendant. The panel has jurisdiction pursuant to 28 U.S.C. § 1291. The defendant has moved to strike portions of the Yalters’ reply brief. For the reasons given below, we deny the defendant’s motion to strike as moot, and we affirm the district court’s decision.

With respect to the strict liability claim, nothing suggests that Endocare delegated its duty to instruct¹ to Aymed or Mr. Ay. Endocare satisfied its duty to warn or instruct its users by providing clear, written instructions along with the stent.² Therefore, we affirm on the first issue.

With respect to the negligence claim, because Aymed did not render the service of instructing doctors on use of the stent device “for a specified recompense ... under [Endocare’s] control,”³ the district court correctly concluded that Aymed was not an independent contractor of Endocare with respect to this task. Aymed was compensated by Endocare for the service of selling stent devices to doctors, not for the service of instructing doctors on their proper use. Accordingly, Aymed was not acting as Endocare’s independent contractor while in the operating room, and the panel must affirm.⁴

DEFENDANT’S MOTION TO STRIKE DENIED AS MOOT; DISTRICT COURT’S DECISION AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 . The district court characterized the first claim on appeal as a strict liability claim made under a failure to instruct or warn theory. The plaintiffs did not challenge this characterization in their opening brief, and we decline to consider their attempt to do so in their reply brief. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 n. 5 (9th Cir.2003) (declining to consider an issue raised for the first time in a reply brief). In light of our decision, we need not rule on the defendant’s motion to strike portions of the reply brief. We therefore dismiss the defendant’s motion as moot.

2 . See Carmichael v. Reitz, 17 Cal.App.3d 958, 95 Cal.Rptr. 381, 400-02 (1971).

3 . Cal. Lab.Code § 3353.

4 . See Delta Savings Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001).