2013-00149806-CU-PL

Gail Rockwell vs. Bailey, Inc.

Nature of Proceeding: Motion for Summary Judgment

Filed By: Matthews, Ryan J.

The motion of Defendant American 3B Scientific LP, sued as 3BScientific, (3B) for summary judgment is DENIED.

The court notes at the outset that Plaintiff Gail Rockwell (Rockwell) did not submit a substantive opposition and instead requests a continuance to complete discovery. Because 3B’s motion is denied on the merits, no such continuance is needed.

This case involves allegations of products liability and personal injury. Rockwell is a physical therapist. She alleges she was injured after straining to adjust a set of parallel bars she uses in therapy with clients.

Rockwell filed the original complaint in this case in August 2013 and the operative first amended complaint (FAC) in January 2015. Throughout the case, she has proceeded against 3B as “the manufacturer and distributor of the defective equipment.” (Compl., ¶ 9; FAC, ¶ 9.) She alleges that co-defendant Bailey Inc. (Bailey) manufactured the

parallel bars as well. The FAC contains causes of action for negligence and strict liability.

Bailey has already successfully moved for summary judgment. Among other things, the court concluded Bailey’s evidence established the nonexistence of any triable issue whether it manufactured the subject parallel bars. 3B now piggy-backs on Bailey’s MSJ. In 3B’s view, its liability as distributor of the parallel bars is premised on evidence that it distributed products manufactured by Bailey. 3B reasons that, if Bailey was not the manufacturer, then it cannot be liable as Bailey’s distributor.

The court rejects 3B’s position for two reasons. First, 3B failed to file the evidence supporting one of the facts it designated material to the motion. Undisputed Material Fact 14 reads:

The entire basis for Plaintiff’s contention that the bars at issue were distributed by Defendant [3B] was the information she received from the sales representative at the trade show in 2012 or 2013 that Defendant was one of two main distributors of Bailey parallel bars, and that the other distributor did not put parallel bars in the Pine Creek Center.

The only evidence cited to support this fact is testimony in pages 296 and 297 of Rockwell’s deposition transcript. 3B, however, failed to file those pages with the motion. As a consequence, 3B failed to establish a material fact and thus failed to establish the nonexistence of any triable issue of material fact.

Second, 3B’s moving papers do not confront liability on a theory it manufactured the parallel bars. 3B appears to view its liability as predicated solely on its alleged role as distributor. The FAC, however, contains an allegation that 3B manufactured the parallel bars. (FAC, ¶ 9.) 3B has not demonstrated that Rockwell abandoned this alternative theory of liability. Hence, it was 3B’s initial burden to produce evidence barring an inference it manufactured the parallel bars. Because 3B has not produced such evidence, it has not shown it is entitled to judgment as matter of law.

3B argues next that, assuming it placed the parallel bars into the stream of commerce, it is entitled to summary judgment nonetheless because the parallel bars did not cause Rockwell’s injuries. 3B does not tender evidence negating causation. Instead, it argues Rockwell cannot produce admissible evidence proving causation. (See, e.g., Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 587-588 [“A defendant moving for summary judgment or summary adjudication need not conclusively negate an element of the plaintiff’s cause of action [but…i]nstead…may show through factually devoid discovery responses that the plaintiff does not possess and cannot reasonably obtain needed evidence”].) 3B tenders UMF 23 to support its position that Rockwell cannot establish causation. That UMF reads:

The only basis Plaintiff has for believing the parallel bars caused her injury is that she could not think of anything else she did which would have caused her injury. She has confirmed she does not know if the parallel bars actually caused her injury. She also confirmed she never considered filing an injury claim until she was encouraged to do so by her coworkers.

The evidence offered to support UMF 23 is Rockwell’s deposition testimony. The

testimony, however, does not demonstrate the nonexistence of a triable issue.

3B was required to demonstrate that Rockwell does not currently possess evidence of causation and cannot reasonably obtain such evidence. (Collin, supra.) The cited testimony only addresses Rockwell’s personal belief that the parallel bars caused her injuries. Her own beliefs and inferences about causation are insufficient to prevail at trial. However, evidence of Rockwell’s inferences does not bar an inference legally sufficient evidence exists.

As 3B observes, a personal injury plaintiff must produce expert testimony to establish causation. (See Moving Memo. at 5:15-18.) 3B’s evidence does not demonstrate that Rockwell will be unable to procure an expert opinion favorable to her. (See Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1306 [“To establish Chavez did not have, and could not reasonably obtain, evidence proving causation, Glock and Revolver Club were required to present evidence Chavez could not obtain an expert opinion stating it is unlikely a three-year-old child could discharge a pistol with a grip safety”].) As Rockwell notes, the time to disclose expert materials has not arrived.

Had 3B produced its own expert opinion that the parallel bars did not cause injury, then the burden would have shifted to Rockwell to produce a contrary expert opinion. Because the evidence 3B produced does not establish Rockwell’s inability to produce admissible evidence of causation, the burden never shifted, and summary judgment is unwarranted.

Disposition

The motion is DENIED because 3B did not meet its initial burden of production.

Rockwell’s request for a continuance to complete discovery is DENIED.