Smith v. >St. Jude Medical

 

 

 

 

 

 

Filed 5/21/13 
Smith v. St. Jude Medical CA1/5

 

 

 

 

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS

 

 

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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

FIRST APPELLATE
DISTRICT

DIVISION FIVE

 

 

 

AUDREY SMITH et al.,

 

            Plaintiffs and
Appellants,

                                                                                                A135338

            v.

                                                                                                (>Alameda> County

ST. JUDE MEDICAL, INC.                                               Super.
Ct.> No. RG09470457)

et al.,

 

            Defendants and
Respondents.

____________________________________/

 

            Plaintiffs
are the five adult children and mother of the decedent, Patricia Amonoo, who
died following cardiac
pacemaker surgery in 2008. 
Plaintiffs sued St. Jude Medical, Inc. (St.
Jude), Jeremy Kosel (collectively, defendants), and others involved in the
surgery for, among other things, wrongful death as a result of defendants’
negligence.  The trial court granted St.
Jude’s motion for summary judgment,
concluding defendants did not owe Amonoo a duty of care “with respect to the
acts or omissions that allegedly caused her injury and death” and that
plaintiffs “lack[ed] evidence that any acts or omissions by Kosel breached his
duty of care under the circumstances or proximately caused the injury or
death.” 

Plaintiffs appeal.  They contend the court erred by granting
summary judgment because: (1) they did not have a sufficient opportunity to
conduct discovery to oppose the motion; (2) defendants did not satisfy their initial
burden of production; (3) they raised a triable issue of material fact
regarding whether defendants negligently undertook a duty to monitor Amonoo
during or after the surgery;
and (4) the court improperly relied on Kennedy
v. Medtronic (Ill. App. 2006) 851 N.E.2d 778 (Kennedy).href="#_ftn1"
name="_ftnref1" title="">[1] 

We affirm.

FACTUAL AND
PROCEDURAL BACKGROUND

Dr. La Viola, an employee of
Permanente Medical Group (Kaiser), implanted the cardiac pacemaker in Amonoo on
October 29, 2008, at Dameron
Hospital in Stockton.  St. Jude sold the pacemaker leads that Dr. La
Viola prescribed and implanted in Amonoo. 
Kosel, a St. Jude employee, supplied the pacemaker leads and was present
during Amonoo’s surgery to operate St. Jude’s pacing system analyzer (PSA), a
device used to test the status and level of function of the pacemaker and
leads.  The implantation of the pacemaker
perforated the right atrium and ascending aorta of Amonoo’s heart, causing
“‘cardiac tamponade[,]’” or the accumulation of blood around her heart.  Amonoo died shortly after the surgery. 

In August 2009, plaintiffs filed a
wrongful death and survival action against Dr. La Viola, Kaiser, Dameron
Hospital Association (Dameron), and various doe defendants.  Plaintiffs alleged “[t]he infliction of the
cardiac perforations themselves may or may not constitute href="http://www.sandiegohealthdirectory.com/">medical negligence.  But negligence is clear in that Defendants’
contemporaneous and post-operative monitoring of Ms. Amonoo must have been
casual in the extreme for them to have failed to recognize and, for a
considerable length of time, remained entirely unaware of, such substantial
perforations . . . and such major internal bleeding.  Had defendants recognized what was happening
at any time during the first hour after the perforations occurred, and taken
appropriate measures, Ms. Amonoo’s chances of survival would have been very
good.”  Plaintiffs alleged “each
defendant was the employer, employee, coworker, supervisor . . . of each of the
other defendants, and was at all such times acting within the course and scope
of such capacity or relationship, and each of the defendants is legally
responsible . . . for each of the wrongful acts and omissions alleged herein,
and legally caused the injuries and damages to plaintiffs. . . .” 

Plaintiffs named St. Jude and Kosel
as doe defendants in June 2010. 

Defendants’ Summary
Judgment Motion

In 2011, defendants moved for
summary judgment.href="#_ftn2" name="_ftnref2"
title="">[2]  They argued: (1) they did not owe a legal
duty to provide medical care to Amonoo; (2) Kosel did not assume a legal duty
to provide medical care to Amonoo or to monitor her medical condition for a
complication of surgery; and (3) there was no evidence Kosel was negligent, or
that any such negligence caused Amonoo’s death.href="#_ftn3" name="_ftnref3" title="">[3]  Defendants claimed they “owed no legal duty
to surgically implant a pacemaker lead or diagnose a patient’s medical
condition, or to monitor a patient’s medical condition for the purpose of
diagnosing a complication from surgery.” 
According to defendants, Dr. La Viola selected the pacemaker and leads
he wanted to implant.  Kosel did not
implant the leads, nor did he direct or instruct Dr. La Viola how or where to
implant them.  Kosel operated the PSA and
reported the readings to Dr. La Viola when Dr. La Viola tested the pacemaker
for signal strength.  Kosel did not
undertake any responsibility to monitor Ms. Amonoo during or after the surgery,
because such monitoring would have been outside the scope of his employment as
a sales representative for St. Jude. 
Defendants argued they were added as doe defendants “solely because Mr.
Kosel was in the operating room during Ms. Amonoo’s surgery, which is standard
procedure and required by Kaiser . . . .” 


Kosel submitted a declaration in
support of defendants’ motion for summary judgment.  In it, he averred: (1) he supplied the
pacemaker that was sold to Dameron and “prescribed by Ms. Amonoo’s physician to
treat her heart condition;” (2) as medical device vendors, “neither St. Jude nor
its sales employees are licensed to practice medicine” and the practice of
medicine would be outside the scope of his employment as a sales representative
for St. Jude; (3) St. Jude sales representatives do not provide “post-operative
medical care. . . . [they] support physicians by supplying measurements
retrieved from devices;” and (4) he “did not voluntarily assume any duty to
provide medical care to Ms. Amonoo, including post-operative care to discern
whether she was suffering from any internal injury resulting from her
surgery.” 

            Defendants
also submitted the deposition testimony of Dr. La Viola and Lee Vang, the
“circulating nurse.”  Dr. La Viola
testified Kosel “is positioned watching a machine, and when I want to test the
lead, then he will read the machine and give me numbers that I will use to know
whether or not I am in a good place.” 
When asked whether Kosel’s job was to identify the location of the
“distress in the patient’s heart,” Dr. La Viola responded, “No.  His job is to read this machine that is
called the [PSA], and when I hook up my lead to this machine, it will give
numbers, and then he reports the numbers to me. . . .  What he’s doing really does not have anything
to do with the location but rather on the strength of the signal.  It’s almost like moving around an antenna and
getting a good signal.”  Similarly, Vang
testified the doctor — not Kosel — determines where to position the leads. 

Finally, defendants submitted
excerpts from Kosel’s deposition, where he testified he brings the equipment to
the operating room and provides the physician with “access to our analyzer and
the data from our analyzer. . . .”  When
the physician “order[s] [Kosel] to give him numbers based upon the electrical
parameters of that lead,” Kosel provides it by “[p]ushing a few buttons” and
then “report[s] the numbers that the [PSA] gives” by telling the doctor the
numbers and/or showing the doctor the computer screen with the data.  Kosel testified he did not advise Dr. La
Viola on which leads to use, and he did not guide or direct Dr. La Viola where
to place the leads.  In addition, Kosel
stated he did not know why Dr. La Viola repositioned the leads and explained
such repositioning was based on “[p]hysician preference” and “physician[ ]
discretion.”  According to Kosel, doctors
choose “to do whatever they need to do” regarding the lead position.  Sales representatives “provide
information.  We don’t provide opinion.  We don’t provide direction.  We provide information. . . . We bring the
products and provide the analysis.” 

Plaintiffs’ Opposition
and Defendants’ Reply

            In opposition, plaintiffs
claimed Kosel was “active in guiding Dr. La Viola in the placement of the
pacemaker lead” and that Dr. La Viola repositioned the lead “[u]nder the
guidance and direction of Kosel[.]” 
According to plaintiffs, Kosel “came under a duty of care to Amonoo when
he undertook to guide Dr. La Viola’s placement of the insertion of the
pacemaker leads into Ms. Amonoo’s heart[.]” 
Plaintiffs contended Kosel “committed ordinary negligence” and that
defendants were “liable under the ‘negligent undertaking theory of liability’
formalized in section 324A of the second Restatement of Torts[.]”  Plaintiffs relied on Artiglio v. Corning Inc. (1998) 18 Cal.4th 604 (>Artiglio), a case describing the
“negligent undertaking” theory of liability.href="#_ftn4" name="_ftnref4" title="">[4]


            Plaintiffs
relied on virtually the same deposition testimony from Dr. La Viola and Vang as
defendants.  Plaintiffs also submitted a
field contact report prepared by Kosel several months after the surgery, where
he wrote “[i]t is suspected that the perforations may have resulted during an
attempt to electrically map with, and subsequently fixate, the active fixation
lead.”  In addition, plaintiffs submitted
the declaration of their expert witness, Peter J. Curran, M.D., the Director of
Cardiovascular Rehabilitation at St. Mary’s Hospital in San Francisco.  Among other things, Dr. Curran observed that
one of the leads was “placed and attachment was attempted in four different
locations within the right atrium. . . .” 
Dr. Curran opined that “more likely than not, the perforations of the
atrium and a[or]ta occurred during the procedure implanting the
pacemaker.” 

            Dr. Curran
concluded “Dr. La Viola caused the lead to perforate the atrium and the aorta” because
he was “not careful or attentive in his effort to reposition the lead. . .
.”  Dr. Curran explained that it was
“virtually impossible” to puncture the aorta during surgery “without knowing
that you did so” and that Dr. La Viola knew or should have known — or should
have suspected — that Amonoo’s “a[or]ta was at high risk for a
puncture[.]”  According to Dr. Curran,
Dr. La Viola performed below the standard of care by using an “inordinate
amount of pressure to reposition the lead” and by failing “to recognize the
high risk of puncture.”  Dr. Curran also
faulted Dr. La Viola for failing to monitor Amonoo for a longer period of time
after the surgery; Dr. Curran explained that “there was a duty to consistently
monitor the vital signs in a post-implantation patient in ‘fair’ condition with
a ‘severe systematic disease.’”  Dr.
Curran opined that “the perforation of the atrium and a[or]ta” along with the
“failure to monitor both by [Dr.] La Viola and the nurses” led to Amonoo’s
death and fell below the standard of care. 
     

            In reply,
defendants argued plaintiffs’ evidence did not raise a triable issue of
material fact because: (1) Dr. Curran opined that “the actions of the doctor
and the hospital employees — not St. Jude — led to” Amonoo’s death; (2) there was
no evidence Kosel implanted the lead into Amonoo’s heart or directed or
instructed Dr. La Viola where to implant the lead or how much force to use when
inserting the lead; (3) plaintiffs presented no evidence Kosel “undertook any
duty to diagnose or monitor Ms. Amonoo’s medical condition after surgery;” (4)
there was no evidence Kosel selected the lead or acted negligently; and (5)
there was no evidence defendants’ alleged negligence caused Amonoo’s
death.  Finally, defendants contended
there was no evidence supporting plaintiffs’ claim under section 324A of the
Second Restatement of Torts. 

The Order Granting
Summary Judgment for Defendants

Following a hearing, the court
granted summary judgment for defendants.  
It determined defendants satisfied their burden “of showing that
Plaintiffs lack evidence to establish that Defendants had a duty of care to Ms.
Amonoo with respect to the acts or omissions that allegedly caused her injury
and death, and also that Plaintiffs lack evidence that any acts or omissions by
Kosel breached his duty of care under the circumstances or proximately caused
the injury or death.”  The court
determined defendants did not owe a duty of care to Amonoo regarding the manner
in which the pacemaker was inserted into her chest or the alleged failure to
monitor her condition after surgery. 

The court further concluded >Kennedy, supra, 851 N.E.2d 778 was “‘on
all fours’” because Kosel had a limited role “in connection with the
procedure.”  Kosel did not implant the
pacemaker or leads and did not instruct Dr. La Viola how or where to implant
the leads.  Instead, he provided
“electrical performance measurements from the PSA” and did not undertake a duty
to monitor Amonoo’s medical condition or diagnose possible complications from
the surgery.  As the court explained,
“Plaintiffs do not have evidence that any error in connection with the readings
taken from the PSA caused Ms. Amonoo’s injury and death.  Instead, they allege that there may have been
negligence in the perforation of the atrium and aorta during implantation of
the pacemaker and/or lead, and that the post-operative monitoring by the
physician and hospital were negligent.” 
Finally, the court rejected plaintiffs’ characterization of Dr. La Viola,
Vang, and Kosel’s deposition testimony and sustained defendants’ objection to
Curran’s testimony that the leads were placed in Amonoo’s heart “under the
direction and instruction of the St. Jude sales representative . . . Kosel —
insofar as he was the only one who knew how to operate the testing device.”

The court entered judgment for
defendants and plaintiffs timely appealed.

DISCUSSION

I.

Standard of Review

            “‘We review
the grant of summary judgment de novo. 
[Citation.]  We make “an
independent assessment of the correctness of the trial court’s ruling, applying
the same legal standard as the trial court in determining whether there are any
genuine issues of material fact or whether the moving party is entitled to
judgment as a matter of law.”  [Citation.]  A defendant moving for summary judgment meets
its burden of showing that there is no merit to a cause of action by showing
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. [Citation.]  Once the defendant has made such a showing,
the burden shifts back to the plaintiff to show that a triable issue of one or
more material facts exists as to that cause of action or as to a defense to the
cause of action.  [Citation.]  [Citation.]’” 
(Howard Entertainment, Inc. v.
Kudrow (2012) 208 Cal.App.4th 1102, 1113 (Howard).)  “‘In performing
our de novo review, we view the evidence in the light most favorable to
plaintiffs as the losing parties. 
[Citation.]  In this case, we
liberally construe plaintiffs’ evidentiary submissions and strictly scrutinize
defendants’ own evidence, in order to resolve any evidentiary doubts or
ambiguities in plaintiffs’ favor.’ 
[Citation.]”  (>Id. at pp. 1113-1114.)

II.

>Plaintiffs Had an Adequate Opportunity to
Conduct Discovery

Before Opposing the
Motion for Summary Judgment

Plaintiffs repeatedly claim the
court erred by granting summary judgment because they did not have a sufficient
amount of time to conduct discovery. 
According to plaintiffs, they were unable to “marshal a detailed factual
case in opposition to Defendants[’] summary judgment motion,” apparently
because defendants made “a series of maneuvers” such as trying to prevent
Kosel’s deposition.  This argument fails
for three reasons.  First, it is not
supported by any authority.  (>Berger v. California Ins. Guarantee Assn.
(2005) 128 Cal.App.4th 989, 1007, fn. omitted [failure to support contention
with authority “constitutes a waiver of the issue on appeal”].)  Second, it is inaccurate because plaintiffs
had ample time to conduct discovery to support their opposition.  Plaintiffs deposed Dr. La Viola in May 2010,
over a year before defendants moved for summary judgment; they deposed Kosel in
May 2011, three months before defendants filed the motion.  Third, plaintiffs waived this argument by not
moving to continue the summary judgment hearing pursuant to Code of Civil
Procedure, section 437c, subdivision (h), which allows a party to request a
continuance to obtain facts essential to justify opposition” to a motion for
summary judgment.  (Code Civ. Proc.,
§ 437(c), subd. (h); see also Zamudio
v. City and County of San Francisco (1999) 70 Cal.App.4th 445, 454
[plaintiff waived objection to defendant’s apparent failure to produce
discoverable documents by failing to seek a continuance of the hearing pursuant
to Code of Civil Procedure, section 437c, subdivision (h)].)  As discussed below, the court granted
defendants’ motion for summary judgment because plaintiffs could not — even
after conducting discovery — produce admissible evidence supporting the
elements of their claims. 

III.

>The Court Properly Concluded Defendants

Met Their Burden of
Proof

            Plaintiffs
contend the court erred by granting summary judgment because defendants “failed
even to meet their initial burden of production[.]”  Relying on Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64 (>Scheiding) and several other cases,
plaintiffs claim defendants did not satisfy their burden of production because
they pointed to a lack of evidence supporting plaintiffs’ claims rather than
offering any “affirmative evidence.”

Plaintiffs reliance on >Scheiding is misplaced.  In that case, a defendant in an asbestos case
failed to engage in meaningful discovery as to the basis of the plaintiff’s
claims.  (Sheiding, supra, 69 Cal.App.4th at p. 67.)  The defendant moved for summary judgment,
claiming the plaintiff had no evidence supporting a case against it.  (Id.
at pp. 80, 82.)  A division of this court
reversed summary judgment granted for the defendant because the plaintiff had
never been asked whether he had any evidence linking the defendant to the areas
where he worked.  The >Scheiding court explained that “the duty
to answer completely only extended so far as the reasonable ambit of the
questions which were asked.  The plaintiff
had no duty to volunteer information that was not requested.”  (Id.
at p. 80.) 

            >Scheiding has no bearing here.  Here and in contrast to Scheiding, defendants demonstrated — through Kosel’s declaration
and through the deposition testimony of Kosel, Vang, and Dr. La Viola — that
defendants were not responsible for the perforations in Amonoo’s heart or for
the alleged failure to monitor her during or after the surgery.  Plaintiffs misapprehend defendants’ burden as
the moving party.  Defendants had no
duty, as plaintiffs urge, to “submit evidence fully within their knowledge and
control concerning Mr. Kosel’s specific duties in assisting a surgeon
performing a pacemaker implantation, and whether he met them or fell short in
this case.” 

Because defendants satisfied their
burden, the burden shifted to plaintiffs to show a triable issue of fact.  (Code Civ. Proc., § 437c, subd. (p)(2).)   Plaintiffs did not. 

IV.

>The Court Properly Concluded Plaintiffs Did
Not

Raise a Triable Issue
of Material Fact

Plaintiffs contend they “adduced
sufficient evidence of Mr. Kosel’s duty and breach to raise [triable] issues of
fact” because Kosel “played an active role in the procedure” by guiding Dr. La
Viola “in his placement of the leads.” 
They also contend Kosel acknowledged the perforations in Amonoo’s heart
“may have resulted during an attempt to electrically map with, and . . .
fixate, the active fixation lead.” 
According to plaintiffs, this evidence creates an inference that Kosel
contributed to Amonoo’s death by misguiding Dr. La Viola or by failing to alert
him to the “faulty positionings of the pacemaker leads. . . .” 

This argument ignores and
mischaracterizes the evidence in the record and, in any event, does not create
a triable issue of material fact.  The
evidence demonstrated Kosel’s role in the surgery was limited.  He was a sales representative who operated
the PSA.  He did not instruct or direct Dr. La Viola on how or where to implant the
leads.  As Kosel explained, the doctors
choose “to do whatever they need to do” regarding the position of the
leads.  Kosel continued, “We provide
information.  We provide opinion.  We don’t provide direction.  We provide information. . . . We bring the
products and provide the analysis.” 
Similarly, Dr. La Viola testified Kosel’s job was to read the PSA and
report the numbers to him.  Vang
testified that the doctor, not Kosel, determines where to place the leads.  That Kosel suspected the perforations “may”
have resulted during the placement process does not demonstrate the
perforations resulted from an error or breach of duty by Kosel.

Plaintiffs rely on a passage from >Artiglio, supra, 18 Cal.4th 604 to
support their contention that summary judgment was inappropriate because their
negligent undertaking theory of liability “hinges on facts which must be
determined at trial.”  In >Artiglio, silicone breast implant
recipients sued the implant maker, Dow Corning Corporation (Dow Corning).  They also sued the implant maker’s parent
corporation, The Dow Chemical Company (Dow Chemical) under a “‘Good Samaritan’
or negligent undertaking liability articulated in [Restatement Second of
Torts], section 324A.”  Plaintiffs argued
“Dow Chemical owed them a duty of care in the conduct and reporting of its
silicone toxicology research for Dow Corning.” 
(Id. at p. 614.)  The trial court granted Dow Chemical and Dow
Corning’s summary judgment motions, concluding neither defendant owed a duty of
care to the plaintiffs.  (>Id. at p. 611.)

The California Supreme Court
affirmed.href="#_ftn5" name="_ftnref5" title="">[5]  It concluded that when Dow Chemical
“conducted and reported silicone toxicology research for Dow Corning, . . . any
risk of physical harm to plaintiffs from negligent performance of that
undertaking was unforeseeable.”  (>Artiglio, supra, 18 Cal.4th at p.
608.)  In reaching this conclusion, the >Artiglio court explained, “whether Dow
Chemical’s alleged actions, if proven, would constitute an ‘undertaking’
sufficient, within the meaning of section 324A’s negligent undertaking theory,
to give rise to an actionable duty of care is a legal question for the
court.  In some cases, however, as Dow
Chemical acknowledges, there may be fact questions ‘about precisely what it was
that the defendant undertook to do.’ 
That is, while ‘[t]he “precise nature and extent” of [an alleged section
324A] duty “is a question of law . . . “it depends on the nature and extent of
the act undertaken, a question of fact.”’” 
[Citation.]  Thus, if the record
can support competing inferences [citation], or if the facts are not yet
sufficiently developed . . . “‘“an ultimate finding on the existence of a duty
cannot be made prior to a hearing on the merits”’” [citation], and summary
judgment is precluded.  [Citations.] . .
. [¶] Our de novo review of the record [citation] in light of these principles
reveals that no triable issue of fact
concerning the scope of Dow Chemical’s undertaking to Dow Corning remains to
foreclose resolution of this matter on summary judgment.”  (Id.
at pp. 615-616.)

Here as in Artiglio, there is “no triable issue of fact concerning the scope
of [Kosel’s] undertaking. . . .”  (>Artiglio, supra, 18 Cal.4th at p.
616.)  As discussed above, the evidence
established Kosel did not determine how or where to implant the leads, nor did
he undertake a duty to monitor Amonoo. 
As such, the court properly granted summary judgment for
defendants. 

V.

The Court Did Not Err by Relying on Kennedy

            Plaintiffs’
final claim is the court “over-relied” on Kennedy,
supra, 851 N.E.2d at page 778, apparently because the case is
distinguishable.  In Kennedy, the decedent died following the implantation of a
pacemaker and lead manufactured by Medtronic and his daughter sued Medtronic
for negligence and wrongful death. 
Heather Friedman, a representative of Medtronic, was present during the
surgery and “provided technical support to ensure the lead parameters were
correctly calibrated and the lead was functioning properly.”  (Id.
at p. 781.)  The plaintiff argued
Medtronic was liable under section 324A of the Second Restatement of Torts for
breaching a duty “to assist with the insertion [of the pacemaker] in a
reasonable manner” during the surgery.  (>Id. at p. 782.)

An Illinois trial court granted
Medtronic’s motion for summary judgment and the appellate court affirmed.  (Kennedy,
supra, 851 N.E.2d at p. 782.)  The >Kennedy court held that Friedman’s
limited role in the procedure — to “provide technical support and ensure that
the lead parameters were correctly calibrated and the lead was functioning
properly” — “did not entail her voluntarily assuming a duty, under section 324A
of the Restatement (Second) of Torts, for the placement of the lead into the
correct ventricle of the patient’s heart.” 
(Id. at p. 787.)  The result reached in Kennedy is consistent with California law.  Therefore, to the extent the trial court
relied on that case, its reliance was not misplaced. 

Plaintiffs claim >Kennedy is distinguishable because
defendants failed to present evidence “acquitting Mr. Kosel of the duty to
assist, guide, or warn the surgeon. . . .” 
We disagree.  As discussed above,
defendants established Kosel did not direct or instruct Dr. La Viola how or
where to insert the leads into Amonoo’s heart. 
Plaintiffs presented no evidence Kosel undertook to guide Dr. La Viola
in the placement of the leads or otherwise assumed any legal duty to do so with
reasonable care.  Defendants also
presented evidence that Kosel did not assume a duty to monitor Amonoo during or
after the surgery: to do so would have been outside the scope of his
employment.

DISPOSITION

            The
judgment is affirmed. 

 

 

 

 

                                                                                                _________________________

                                                                                                Jones,
P.J.

 

 

We concur:

 

_________________________

Simons, J.

 

_________________________

Bruiniers, J.