Viramontes v. Pfizer, Inc.

Filed 6/20/08 Viramontes v. Pfizer, Inc. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Plaintiff Sharon Elizabeth Viramontes sued defendant Pfizer, Inc., alleging, as relevant to this appeal, that defendants product, Celebrex, caused a rash. The trial court granted summary judgment because there was no competent medical expert opinion that the product caused the alleged side effect. On appeal, plaintiff asserts there was such evidence. We affirm because (1) plaintiff forfeited the argument she attempts to make on appeal and (2), in any event, there is insufficient evidence of causation.

BACKGROUND

Because the summary judgment proceedings and plaintiffs contentions on appeal substantially limit the facts and issues we must consider, we relate only the procedural and factual elements necessary to a resolution of the appeal.

Plaintiff, representing herself, filed an amended
complaint against defendant based on its manufacture and distribution of two drugs: Celebrex and Bextra, both of which she took pursuant to a doctors prescription. Although the complaint was not clear as to the exact legal claims plaintiff was making, the trial court treated the complaint as alleging (1) failure to warn, (2) design defect, (3) breach of warranty, and (4) misrepresentation. Plaintiff does not disagree with this characterization.

Plaintiff alleged that, as a result of taking Celebrex and Bextra, she suffered numerous side effects. The only side effect relevant to this appeal is a rash, which she described in her complaint as a fiery heat rash all over [her] body. She attempted to designate Dr. Conrad Tsai, one of her treating physicians, as an expert to testify that Celebrex caused her injuries. Dr. Tsai, however, declined. Plaintiff then attempted to designate Dr. Namieta Janssen as an expert witness, but Dr. Janssen never provided evidence in this action.

Defendant filed a motion for summary judgment or, in the alternative, summary adjudication. It asserted six grounds for summary judgment or summary adjudication, including the contention that plaintiff could not prove causation without competent expert evidence. In support of the motion, defendant filed a separate statement of undisputed material facts, along with extensive supporting evidence and points and authorities. Plaintiff responded to the motion but did not address the contention that she did not have evidence of causation. She also did not file a separate statement of facts.

After defendant filed a reply brief, plaintiff filed two additional documents. She asserted that defendants claim that she had no evidence of causation was untrue. She did not, however, cite any evidence.

The trial court granted summary judgment. It found that plaintiff had submitted no expert testimony establishing causation. Having so ruled, the trial court found it unnecessary to consider defendants other contentions in favor of summary judgment or summary adjudication.

Plaintiff appeals from the judgment. She is represented by counsel on appeal.

DISCUSSION

Plaintiff claims that the deposition testimony of Dr. Michael Leathers, her treating orthopedist, was sufficient to establish that Celebrex caused her rash.^[1] Responding to this argument, defendant asserts (1) plaintiffs argument was forfeited because she did not make it in the trial court,
(2) Dr. Leatherss testimony was insufficient to establish causation, and (3) plaintiff fails to claim prejudice. Defendant contends that any one of these reasons, considered alone, supports the summary judgment. We agree that (1) plaintiff forfeited her assertion that Dr. Leatherss testimony established causation and, (2) in any event, Dr. Leatherss testimony was not sufficient to establish causation. Having so found, we need not consider whether plaintiff failed to establish prejudice, and we also need not consider other contentions that defendant makes in favor of the judgment.

During discovery, defendant deposed Dr. Leathers, an orthopedic surgeon who treated plaintiff for carpal tunnel syndrome. Dr. Leathers gave the following testimony with respect to Celebrex causing a rash:

Q. . . . [D]o you have an opinion, based on your experience and your treatment of [plaintiff], that Celebrex caused [plaintiff] any harm?

A. Its all pretty much subjective in my opinion right now because I dont have any independent recollection of the examinations on those days. But from my notes, based purely on the history that I have in those notes that she provided, it sounds like she had some side effects to Celebrex.

Q. And --

A. Again, thats all based on what she told me just historically because I dont have much documented.

Q. So to the extent you have any opinion that she did have a reaction to Celebrex, it was based purely on information you received from [plaintiff] herself?

A. Thats correct.

Q. Not any independent examination that you did?

A. Thats correct.

Q. And as far as what she told you she was suffering from as a result of Celebrex, the symptoms were a rash?

A. Yes.

Q. Theres nothing else?

A. Thats correct.

Q. Okay. So to take that to the next logical step, would you agree with me, then, that you could not opine to a reasonable degree of medical certainty that Celebrex caused [plaintiff] any harm?

A. Well, my medical opinion would be based purely on her subjective information, what she told me. And Im pretty compulsive about documenting only what a patient says.

So if I were to take the stance that Celebrex caused side effects, it would be based on what she told me. And, generally speaking, Ill believe patients. So, in a general sense, my opinion would be that most likely she did have some side effect to Celebrex.

Q. Would you prefer, though, to be able to confirm that beyond simply what a patient tells you?

A. Well, I guess to me, quite frankly, it wasnt as important to me. I was, quite frankly, more interested in the carpal tunnel syndrome and her medical condition with reference to her hands.

And, in a general sense, I felt bad about any reaction that she may or may not have had to Celebrex; but it doesnt look like I got too involved in evaluating any of the so-called side effects to Celebrex that she might have had.

In its statement of undisputed material facts in support of summary judgment, defendant stated: Dr. Michael Leathers, an orthopedic surgeon, testified that he had no opinion as to whether Bextra or Celebrex caused Plaintiffs alleged injuries. Plaintiff did not dispute this asserted fact.

Because plaintiff appeals from an order granting defendant[] summary judgment, we must independently examine the record to determine whether triable issues of material fact exist. (Code Civ. Proc., 437c, subd. (c); [citations].) . . . To prevail on her action in negligence, plaintiff must show that defendant[] owed her a legal duty, that [it] breached the duty, and that the breach was a proximate or legal cause of her injuries. [Citation.] Since defendant[] obtained summary judgment in [its] favor, we review the record de novo to determine whether [it has] conclusively negated a necessary element of the plaintiffs case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial. [Citation.] [Citation.] (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.)

To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the action has no merit or that there is no defense thereto. (Code Civ. Proc., 437c, subd. (a).) A defendant moving for summary judgment meets this burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. (Code Civ. Proc., 437c, subd. (o)(2); [citation].) Once the defendant makes this showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. (Code Civ. Proc., 437c, subd. (o)(2).) Material facts are those that relate to the issues in the case as framed by the pleadings. [Citations.]) (Barton v. Elexsys Internat., Inc. (1998) 62 Cal.App.4th 1182, 1187, italics omitted.)

The only element at issue in this appeal is causation. A product liability case must be based on substantial evidence establishing both the defect and causation (a substantial probability that the design defect, and not something else, caused the plaintiffs injury) and where, as here, the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation. (Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363, 1373.) In pharmaceutical cases presenting complicated and possibly esoteric medical causation issues, the standard of proof ordinarily required is a reasonable medical probability based upon competent expert testimony that the defendants conduct contributed to [the] plaintiffs injury. [Citations.] (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.)

A. Defendants Forfeiture Argument

Defendant asserts that plaintiff forfeited reliance on Dr. Leatherss deposition testimony to establish causation because, although the issue of causation was squarely raised in the trial court, plaintiff did not cite Dr. Leatherss testimony to support her argument that there was sufficient evidence of causation. We agree.

Generally, the rules relating to the scope of appellate review apply to appellate review of summary judgments. [Citation.] An argument or theory will . . . not be considered if it is raised for the first time on appeal. [Citation.] Specifically, in reviewing a summary judgment, the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal. [Citation.] Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a triable issue on appeal. [Citation.] A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant. [Citation.] (Expansion Pointe Properties Limited Partnership v. Procopio, Cory, Hargreaves & Savitch, LLP (2007) 152 Cal.App.4th 42, 54-55 (Expansion Pointe Properties), original italics.)

Here, the evidence submitted in support of and opposition to the motion for summary judgment was voluminous. Although the deposition testimony of Dr. Leathers was included in the record presented to the trial court, plaintiff did not dispute defendants statement that Dr. Leathers had no opinion concerning whether Celebrex caused plaintiffs alleged injuries. The trial court was not required to act as counsel for plaintiff and comb through the record for facts supporting plaintiffs theories. (See Expansion Pointe Properties, supra, 152 Cal.App.4th at p. 54 [trial court not required to search record for facts supporting plaintiffs theories].) Accordingly, plaintiff forfeited the right to argue on appeal that Dr. Leatherss deposition testimony was sufficient to establish causation.

Citing the summary judgment statute and Pepperell v. Scottsdale Ins. Co. (1998) 62 Cal.App.4th 1045, plaintiff claims: [I]t is axiomatic that as Dr. Leathers [sic] testimony was offered by defendant in defendants moving papers and such testimony created a triable issue of fact on its own, such triable issue of fact on the issue of causation prevented defendant from sustaining its initial burden of proof. Therefore, at no time did plaintiff ever have a burden to produce argument or evidence. (Unnecessary bold text and underscoring omitted.)

A defendant moving for summary judgment has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. ([Code Civ. Proc.,] 437c, subd. (o)(2).) If the moving defendant does not meet the burden, the plaintiff need not make any showing at all. (Pepperell v. Scottsdale Ins. Co., supra, 62 Cal.App.4th at p. 1054.) Although the plaintiff bears no burden to make a showing if the defendant fails to carry its burden in moving for summary judgment, the moving papers here, including defendants statement of undisputed facts, met defendants burden.

Plaintiffs argument ignores another part of the summary judgment statute requiring a party opposing a summary judgment motion to participate in the process of identifying factual disputes. The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. . . . Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the courts discretion, for granting the motion. (Code Civ. Proc.,  437c, subd. (b)(3).)

In its moving papers, defendant stated that Dr. Leathers had no opinion concerning whether Celebrex caused plaintiffs alleged injuries, and plaintiff did not dispute that factual statement. Therefore, the trial court had no reason to look to the evidence to determine its veracity. Plaintiff cannot now complain that the motion for summary judgment was improperly granted when plaintiff did not dispute the facts upon which the ruling was based.

B. Sufficiency of Dr. Leatherss Testimony

Even absent forfeiture, we would still affirm the judgment because the evidence was not sufficient to establish the causation element of plaintiffs causes of action. As noted above, a plaintiff must establish causation in a case such as this by competent expert testimony that the defendants conduct contributed to [the] plaintiffs injury. [Citations.] (Bockrath v. Aldrich Chemical Co., supra, 21 Cal.4th at p. 79.)

Dr. Leathers was not, nor did he claim to be, an expert concerning the side effects of Celebrex. At best, Dr. Leatherss testimony was that (1) plaintiff told him that her rash was caused by Celebrex and (2) he believed her. He was treating plaintiff for carpal tunnel syndrome and was not concerned with discovering the cause of her rash. He admitted his opinion was based solely on plaintiffs averment that Celebrex caused a rash. Therefore, his opinion concerning the matter did not constitute competent expert testimony because it was merely an uncritical recitation of what plaintiff told him.

But plaintiff contends, in her reply brief, that defendant is estopped from challenging Dr. Leatherss competence as an expert because defendant, itself, submitted Dr. Leatherss testimony to the court. She argues that defendant waived the right to object to this evidence and any foundational deficiency as it offered the evidence in the first place. This argument fails. Defendant proffered Dr. Leatherss testimony to establish that he had no opinion concerning the cause of plaintiffs alleged injuries. Defendant made no explicit or implicit representation concerning Dr. Leatherss expertise or the foundation for his opinion. Hence, defendant is not estopped from disputing plaintiffs claim that Dr. Leathers was a competent expert on the relevant subject.

By setting forth the evidence and showing how it failed to establish causation, defendant met its burden of showing that an element essential to plaintiffs causes of action could not be established. The burden shifted to plaintiff to identify a triable issue of fact. She did not. Accordingly, summary judgment was proper.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to defendant. (Cal. Rules of Court, rule 8.278(a).)

NICHOLSON , Acting P.J.

We concur:

RAYE , J.

CANTIL-SAKAUYE , J.

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^[1] Plaintiff makes no argument on appeal concerning side effects allegedly caused by Bextra.