2011-00103436-CU-PO

Donald Gates vs. Sutter General Hospital

Nature of Proceeding: Motion for Summary Adjudication (Donald Gates)

Filed By: Perlee, Kiersta D.

Plaintiff Donald Gates’ (“Gates”) motion for summary adjudication of Defendant
Intuitive Surgical, Inc.’s (“Intuitive”) affirmative defenses is GRANTED as follows:

This is a medical malpractice/products liability case. In his complaint, Gates alleges
that he suffered injuries when he underwent a prostatectomy performed at Defendant
Sutter General Hospital (“Sutter”). He alleges that the surgery involved the use of a
robotic surgical device that disassembled during the surgery and caused injury. (The
device lost its “gimbal arm” during surgery.) Intuitive asserts that during the surgery, a
portion of the hand grip used to control the device allegedly detached from the
console. Intuitive designed, manufactured and performed maintenance on the device
in question.

The complaint contains a negligence cause of action against Intuitive and Sutter as
well a causes of action for products liability negligence and strict products liability
against Intuitive only. Gates’ theory of the case is that, given the malfunction, Sutter’s
employees were required to complete his surgery by means of an “open procedure”
that caused damage including erectile dysfunction, increased pain and recovery time,
scarring and abdominal pain/discomfort.

In its answer, Intuitive has asserted inter alia the third, sixth, eighth, thirty-fifth, thirty-
seventh and forty-third affirmative defenses for Gates’ comparative fault, third-party
comparative fault/assumption of the risk, equitable indemnity and contribution, misuse of the product, failure to follow product directions/precautions, and alteration of the
product without Intuitive’s knowledge. Gates moves for summary adjudication of each
of these defenses on grounds that they lack merit. (CCP § 473c(f)(1).)

Discussion

Pointing to Intuitive’s discovery responses, Gates argues that Intuitive cannot
demonstrate any triable issue of material fact vis-à-vis the subject affirmative
defenses. Intuitive counters that it most recently served discovery responses, which
were served long before Gates filed this motion, demonstrate the existence of one or
more triable issues.

Preliminarily, the court rejects Intuitive’s argument that, because Gates did not cite or
discuss Intuitive’s most recent discovery responses in his moving papers, he cannot
have met his initial burden of production as matter of law. In Intuitive’s view, Gates
was required to cite and discuss all of its discovery responses, including Intuitive’s
most recent responses, in order to establish that Intuitive’s cannot establish one or
more elements of its affirmative defenses. What the law required Gates to do was
produce factually devoid discovery responses sufficient to preclude an inference that
Intuitive will be able to obtain evidence to establish one ore more elements of its
affirmative defenses. (See Krantz v. Bt Visual Images (2001) 89 Cal.App.4th 164, 173
[“There must be some ‘affirmative showing’ by the moving defendant that plaintiff could
not obtain such evidence before summary judgment would be proper”] [citation
omitted].) To the extent Intuitive contends that its most recent discovery responses
support inferences that its affirmative defense have merit, then it may produce those
responses to meet its responsive burden of demonstrating the existence of one or
more triable issues of material fact. The court discerns no legal requirement, however,
that Gates produce Intuitive’s most recent discovery responses in the first instance to
meet his initial burden of production.

The Third Affirmative Defense for Gates’ Comparative Fault

Summary adjudication is GRANTED.

Gates has produced evidence that (1) he never came into contact with the surgical
device before his surgery and (2) he was unconscious during his surgery. (Undisputed
Material Fact (“UMF”) 12.) This suffices to demonstrate the nonexistence of any
triable issue as to whether Gates was partly or wholly at fault for his injuries. Hence,
the burden shifts to Intuitive to produce evidence demonstrating the existence of a
triable issue.

Intuitive has not met its responsive burden. Rather, Intuitive concedes that Gates was
unconscious during his surgery and objects that Gates’ evidence in support of UMF 12
is irrelevant. (See Opp. Sep. Stmt, UMF 12.) Contrary to Intuitive’s suggestion, the
facts that Gates was unconscious during his surgery and had not otherwise come into
contact with the device precludes any reasonable inference that he was at fault for his
injuries. As a consequence, he is entitled to summary adjudication of the third
affirmative defense.

In reaching this conclusion, the court is aware of and rejects Intuitive’s argument that
Gates’ pre-procedure regimen of testosterone injections contributed to his injuries.
(See Opp. at 6:7-21.) The affirmative defense in question is aimed at Gates’ comparative negligence, not merely alternative causes of injury. Even if Gates’
testosterone injections present a potential cause for his injuries, they do not establish
his negligence. This holds true notwithstanding that Gates’ evidently performed some
the testosterone injections himself: Intuitive has not produced any admissible evidence
that Gates’ self-injections were in any way negligently administered such that they
could have caused his injuries.

The Remaining Affirmative Defenses

Summary adjudication is GRANTED.

The court has reviewed the remaining affirmative defenses and concludes that they do
not state meritorious or otherwise cognizable defenses against Gates. To the extent
the remaining defenses incorporate allegations that Gates was comparatively
negligent, the court has already determined that such allegations do not involve any
triable issues of material fact and lack merit. Intuitive’s affirmative defenses asserting
the comparative fault of third parties remain for decision at trial, however.

With respect to the thirty-fifth, thirty-seventh and forty-third affirmative defenses, those
products-liability defenses do not state defenses to Gates’ causes of action. Such
defenses are aimed at Sutter and perhaps other, third parties. Hence, in granting
Gates’ motion for summary adjudication of the thirty-fifth, thirty-seventh and forty-third
affirmative defenses, the court does not dispose of any legal claims Intuitive may have
against Sutter or any other party besides Gates. The court is only deciding that the
subject affirmative defenses are not meritorious in relation to Gates’ causes of action
against Intuitive.

Intuitive’s Objections to Evidence

The Perlee Declaration

Objection No. 1: Overruled
Objection No. 2: Overruled
Objection No. 3: Overruled

The Gates Declaration

Objection No. 1: Sustained as irrelevant
Objection No. 2: Sustained as irrelevant

The Salazar Deposition Transcript

Objection No. 1: Overruled
Objection No. 2: Overruled
Objection No. 3: Overruled
Objection No. 4: Overruled
Objection No. 5: Overruled
Objection No. 6: Sustained as hearsay
Objection No. 7: Overruled
Objection No. 8: Sustained as irrelevant
Objection No. 9: Overruled
Objection No. 10: Overruled
The Dr. Naftulin Deposition Transcript

Objection No. 1: Overruled
Objection No. 2: Overruled
Objection No. 3: Overruled
Objection No. 4: Overruled
Objection No. 5: Overruled
Objection No. 6: Overruled
Objection No. 7: Overruled
Objection No. 8: Overruled
Objection No. 9: Overruled
Objection No. 10: Overruled
Objection No. 11: Overruled
Objection No. 12: Overruled

Gates’ Exhibit No. 5

Objection No. 1: Overruled

The Dr. Hekmat Deposition Transcript

Objection No. 1: Overruled
Objection No. 2: Overruled
Objection No. 3: Overruled
Objection No. 4: Overruled
Objection No. 5: Overruled
Objection No. 6: Sustained as irrelevant
Objection No. 7: Overruled

Gates’ Exhibit No. 7

Objection No. 1: Overruled

Blaney Deposition Transcript

Objection No. 1: Overruled

Martin Deposition Transcript

Objection No. 1: Sustained as irrelevant
Objection No. 2: Overruled
Objection No. 3: Sustained as irrelevant

Judicial Notice

Intuitive’s request for judicial notice is UNOPPOSED and GRANTED.

Conclusion

Pursuant to CRC 3.1312, Gates shall submit a formal order reflecting the court’s ruling.

2011-00103436-CU-PO

Donald Gates vs. Sutter General Hospital

Nature of Proceeding: Motion for Summary Judgment (Sutter General)

Filed By: Watts, Bianca S.

Defendant Sutter General Hospital’s (“Sutter”) motion for summary judgment is
DENIED.

This is a medical malpractice/products liability case. In his complaint, Plaintiff Donald
Gates (“Gates”) alleges that he suffered injuries when he underwent a surgical
procedure at Sutter. He alleges that the surgery involved the use of a robotic surgical
device that disassembled during the surgery and caused injury. (The device lost its
“gimbal arm” during surgery.) Co-Defendant Intuitive Surgical, Inc. (“Intuitive”)
designed, manufactured and performed maintenance on the device in question. The
complaint contains a negligence cause of action against both defendants as well a
causes of action for products liability negligence and strict products liability against
Intuitive. As to the negligence cause of action, Gates’ theory is that, given the
malfunction, Sutter’s employees were required to complete the surgery by means of an
“open procedure” that caused damage.

Preliminarily, the court notes both that Gates has not filed any opposition and that
Intuitive has filed an opposition. Sutter argues in the Reply that, because the motion is
aimed at Gates’ negligence allegations, the court should disregard Intuitive’s
opposition and treat the motion as unopposed. The court rejects Sutter’s argument
because any adverse party may oppose a motion for summary judgment. (See
Chaffee v. San Francisco Public Library Com. (2005) 134 Cal.App.4th 109, 112-113
[citation omitted].) Gates’ first cause of action for negligence is directed at both Sutter
and Intuitive, and Intuitive’s answer contains an affirmative defense based upon
comparative fault. Furthermore, the thrust of Sutter’s motion is that it did not do
anything to cause the robotic device to disassemble during surgery. This argument
implicitly if not expressly points a finger at Intuitive. Under these circumstances, the
court finds sufficient adversity between Sutter and Intuitive to allow Intuitive to oppose
Sutter’s motion for summary judgment.

Sutter relies on a single material fact to support its motion:

“The damage the gimbal arm sustained at the time it was replaced by
[Intuitive employee] Matthew Martin would have prevented the device
from powering on or otherwise operating if that damage [had] occurred
before Plaintiff’s surgery.”

(See Moving Sep. Stmt.) Based upon this fact, Sutter argues that Gates cannot
establish that Sutter employees caused the malfunction or, by extension, the damage
caused by the open procedure.

Sutter’s evidence does not suffice to demonstrate the nonexistence of any triable issue
material fact. By Sutter’s own admission, its evidence at most establishes that “there
is no way any pre-surgery acts or omissions by Sutter general [sic] could have caused”
the gimbal arm to break. However, the evidence does not preclude an inference that a
Sutter employee broke the gimbal arm during surgery. Absent such evidence, the
court cannot conclude that Sutter could not have caused Gates’ damage as a matter of
law. The motion is thus denied.

Intuitive’s evidentiary objections are overruled.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.

Item 5 2011-00103436-CU-PO

Donald Gates vs. Sutter General Hospital

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication (Intuitive Surgical)

Filed By: Frisch, Wendi J.

Defendant Intuitive Surgical, Inc.’s (“Intuitive”) motion for summary judgment or, in the
alternative, summary adjudication of issues, is DENIED.

This is a medical malpractice/products liability case. In his complaint, Plaintiff Donald
Gates (“Gates”) alleges that he suffered injuries when he underwent a prostatectomy
performed at Sutter General Hospital (“Sutter”). He alleges that the surgery involved
the use of a robotic surgical device that disassembled during the surgery and caused
injury. (The device lost its “gimbal arm” during surgery. Intuitive asserts that “[d]uring
the…surgery, a portion of the hand grip used to control the [device] allegedly detached
from the console.” (Moving Memo. at 4:16-17.) Intuitive designed, manufactured and
performed maintenance on the device in question. The complaint contains a
negligence cause of action against both defendants as well a causes of action for
products liability negligence and strict products liability against Intuitive. Gates’ theory
of the case is that, given the malfunction, Sutter’s employees were required to
complete his surgery by means of an “open procedure” that caused damage including
erectile dysfunction, increased pain and recovery time, scarring and abdominal
pain/discomfort.

Intuitive moves for summary judgment or, in the alternative, summary adjudication of
issues in each of Gates’ three causes of action. Intuitive argues that Gates cannot
establish any negligent conduct or causation. Intuitive further argues that Gates
cannot establish any design defect, manufacturing defect or warning defect to support
his product-liability causes of action. Intuitive relies on the same set of 30 material
facts as to each issue raised in the motion. Accordingly, if one or more of these facts
presents a triable issue, the entire motion must be denied.

Summary Judgment Summary judgment is DENIED.

Intuitive argues that, given Gates’ low, pre-procedure testosterone levels and other
factors, Gates cannot establish that Intuitive’s device caused his erectile dysfunction or
diminished sex drive. Assuming arguendo that Intuitive’s argument otherwise has
merit, it does not demonstrate the nonexistence of any triable issue of fact on the issue
of causation. As Intuitive acknowledges, Gates contends that he sustained damage
aside from erectile dysfunction and diminished sex drive. (Moving Memo. at 4:25-28.)
Intuitive, however, has not produced evidence precluding a reasonable inference that it
could have caused any of these forms of damage. As a consequence, it has failed to
demonstrate the nonexistence of any triable issue of material fact and has failed to
shift the burden of production to Gates. Having failed to discharge its initial burden of
production, Intuitive has failed to demonstrate that it is entitled to judgment as a matter
of law.

Summary Adjudication

th
Pursuant to Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4 1848, Intuitive
moves for summary adjudication of discreet acts alleged to have caused Gates’
damage. Gates does not argue that Intuitive’s approach is improper, and thus court
thus addresses Intuitive’s arguments.

Gates’ Claims of Design and Manufacturing Defects

Summary adjudication is DENIED.

Intuitive argues that, with respect to all of Gates’ causes of action, the claims based on
alleged design and manufacturing defects should be summarily adjudicated. Intuitive
argues that Gates cannot establish any defects or that any defects caused his injuries.
In an attempt to meet its initial burden of producing evidence demonstrating the
nonexistence of any triable issue of material fact, Intuitive relies on discovery
responses that Gates served in October 2012 as well as portions of Gates’ more
recent deposition testimony. Gates argues that this evidence does not suffice to
permit Intuitive to meet its initial burden of production and, therefore, obtain summary
adjudication.

A defendant moving for summary judgment/summary adjudication may produce
evidence of the plaintiff’s factually devoid discovery responses to demonstrate that the
plaintiff cannot establish one or more legal claims, but only after “extensive” discovery
has been taken, and only if the defendant’s evidence supports an inference that the
plaintiff cannot obtain the evidence. (See Aguilar v. Atlantic Richfield Co. (2001) 25
th
Cal.4 826, 854-855; see also Krantz v. Bt Visual Images (2001) 89 Cal.App.4th 164,
173 [“There must be some ‘affirmative showing’ by the moving defendant that plaintiff
could not obtain such evidence, before summary judgment would be proper”] [italics
th
added; citation omitted]; see also Krantz, 89 Cal.App.4 at 174 [“[I]n cases in which…
discovery is incomplete, the motion for summary judgment should not be granted”]
[citation omitted].) Gates argues that Intuitive’s evidence does not support an
inference that he is unable to obtain evidence to support his claims. The court agrees.

As Intuitive’ argues elsewhere, Gates is required to produce expert testimony to
establish both the existence of a design or manufacturing defect as well as that such a
defect caused his injuries. (See Moving Memo. at 12:1-9.) Nonetheless, Intuitive cites
only Gates’ factually devoid lay testimony to demonstrate that he cannot establish the
elements of his design-defect and manufacturing-defect claims. Given Intuitive’s
concession that it is impossible for Gates himself to provide evidence to support the
subject claims, Intuitive should not be able to leverage that impossibility by relying
solely on Gates’ discovery responses and testimony to establish that he cannot
establish the elements of his claims. Furthermore, as Gates observes, he had not
deposed any of Intuitive’s employees before he served his discovery responses.
(Opp. at 11:1-12:16.) And when Intuitive’s counsel asked his at deposition whether he
had any facts to support his design-defect and manufacturing defect claims, although
he was unable to provide any facts, his counsel objected on grounds that no expert
opinions would be revealed and no attorney-client communications would be revealed.
(See Intuitive’s Compendium, Exh. 7 at 116-117:1.) Under these circumstances, the
court finds that Gates’ discovery responses and deposition testimony do not support
an inference that Gates cannot establish the elements of his claims. Thus, Intuitive
has not met its initial burden of production, and the request for summary adjudication
is denied.

Gates’ First and Second Causes of Action for Negligence and Products Liability
Negligence

Summary adjudication is DENIED.

Both the first and second causes of action are based upon, among other things,
Intuitive’s alleged negligent design and manufacture of the device. (See UMF 16-27.)
In moving for summary adjudication of the first and second causes of action, Intuitive
once again relies on Gates’ factually devoid discovery responses and deposition
testimony. For the reasons stated in the preceding section, this evidence does not
demonstrate the nonexistence of a triable issue or shift the burden to Gates.
Accordingly, summary adjudication is denied.

Gates’ Failure To Warn Claims

Summary adjudication is DENIED.

Intuitive argues that, to the extent Gates predicates his causes of action upon
Intuitive’s alleged failure to warn about risks associated with the device, summary
adjudication is warranted. Intuitive argues that it could not have caused Gates’
damages because one of the doctors who performed the surgery was aware that a
radical prostatectomy brings a risk of erectile dysfunction and diminished sex drive as
well as a risk that conversion to an open procedure would be required. To support its
argument, Intuitive cites Rosburg v. Minnesota Mining and Manufacturing Co. (1981)
th
181 Cal.App.3d 726, 735 and Plenger v. Alza (1992) 11 Cal.App.4 349, 361-362.)
Those cases provide that a manufacturer of a medical device has no duty to warn a
patient, and that as long as the manufacturer adequately warns the physician using the
device, the manufacturer does not cause the patient’s injuries based as the result of
any failure to warn.

Neither Intuitive’s evidence nor its cases command an order granting summary
adjudication of Gates’ failure-to-warn claims. First, Intuitive’s evidence does not
preclude an inference that Gates’ doctor was unaware of the specific risk that an open
procedure could be required because the device could disassemble during surgery.
Thus, evidence that the doctor was aware of the general risk that an open procedure
could be required does not demonstrate the nonexistence of a triable issue of material
fact. Furthermore, Intuitive’s own cases acknowledge that the distinction between
awareness of a general risk and awareness of a specific risk can be relevant to a
medical product manufacturer’s argument that it could not have caused a patient’s
injuries by any failure to warn. (See Rosburg, supra, 181 Cal.App.3d at 735, fn. 5
[following case reasoning that surgeon’s general knowledge of potential for breast
implants to deflate did not negate need for manufacturer to provide specific warning of
deflations due to leaking caused by implant wearing at fold]; Plenger, 11 Cal.App.4th
362 [although battling expert opinions about sufficiency of manufacturer’s warning
otherwise would have created a triable issue, the specific warning that plaintiff’s expert
opined should have been made was already a matter of “general and elemental
medical knowledge”].) Because Intuitive’s evidence does not preclude an inference
that its warnings ignored the risk of the need for open procedure as a consequence of
the device disassembling during surgery, Intuitive is not entitled to adjudication of
Gates’ failure-to-warn claims.

For reasons discussed above, the fact that Gates did not serve discovery responses to
support claims of failure to warn does not alter the court’s conclusion.

Intuitive’s Evidentiary Objections

Given the court’s conclusions above, its rulings on Intuitive’s objections do not impact
the outcome of the motion one way or the other. The court nonetheless rules on the
objections, as it is required to do on summary judgment.

The Manning Declaration

Intuitive’s objections are overruled. To the extent Intuitive relies on Garibay v.
th
Hemmat (2008) 161 Cal.App.4 735, 742, to object that Dr. Manning’s opinions lack
foundation because the documents he reviewed are not attached to his declaration,
the court notes that those documents are attached to the Perlee Declaration and thus
are before the court. Moreover, assuming that Dr. Manning does not have specific
expertise in the regulation and engineering of medical devices, any such lack of
expertise goes to the weight of his opinions rather than their admissibility. Dr. Manning
has sufficient education, training and experience as a forensic engineer for the court to
admit his opinions and other testimony into evidence. Dr. Manning has also laid a
sufficient foundation for the court to admit the photographs on which he relies. He
asserts that he personally inspected the exemplar and that his colleague took the
photographs of the exemplar currently before the court.

The Danoff Declaration

Intuitive’s objections are overruled.

Conclusion

The motion is denied.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.