Cunningham v. Medtronic Inc. et al

Filing 112


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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 LORENZO R. CUNNINGHAM, Plaintiff, United States District Court Northern District of California 11 12 13 14 15 v. MEDTRONIC INC., et al., Defendants. Case No. 14-cv-04814-HSG (PR) ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT; DENYING AS MOOT PLAINTIFF’S MOTION TO PRESERVE EVIDENCE; SCHEDULING SUMMARY JUDGMENT Re: Dkt. Nos. 108, 111 16 17 18 INTRODUCTION Plaintiff, a California state prisoner incarcerated at the California Healthcare Facility, filed 19 this pro se action pursuant to 42 U.S.C. § 1983, alleging constitutional and state tort violations 20 arising out of a 2012 surgery during which he had rods installed in his back. The surgery was 21 performed by defendant UCSF Medical Doctor Shane Burch (“Burch”), and the rods were 22 manufactured by a company acquired by defendant Medtronic, Inc (“Medtronic”). In an order 23 filed March 2, 2015, the Court screened the complaint (dkt. no. 1), and determined that it stated 24 the following cognizable claims: (1) deliberate indifference to serious medical needs against 25 defendant Burch; (2) a supplemental state law negligence claim against defendant Burch; and 26 (3) supplemental state law product liability claims against defendant Medtronic. See Dkt. No. 18. 27 28 On January 7, 2016, plaintiff filed a motion for leave to file an amended complaint. This motion was never addressed because, soon thereafter, plaintiff voluntarily dismissed the claims 1 against Burch. On March 2, 2016, the Court declined to exercise supplemental jurisdiction over 2 the remaining state law claims and closed the case. 3 On April 8, 2016, the Court granted plaintiff’s motion to reopen the action and referred the 4 parties to early settlement proceedings before Magistrate Judge Nandor Vadas. After Judge Vadas 5 reported that the case did not settle, the Court, on November 29, 2016, stayed the action and 6 referred it to the Federal Pro Bono Project to find counsel to represent plaintiff pro bono. After an 7 extensive search, the Federal Pro Bono Project informed the Court that it has been unable to locate 8 counsel willing to represent plaintiff at this juncture in the proceedings. In light of these 9 circumstances, the Court will lift the stay, and plaintiff shall proceed pro se. However, in order to make the case more manageable for plaintiff, the Court will bifurcate summary judgment 11 United States District Court Northern District of California 10 proceedings pursuant to the schedule set forth below. Now before the Court is: (1) plaintiff’s motion for leave to file a second amended 12 13 complaint (“SAC”) to add claims arising out of a 2016 back surgery performed by Dr. Burch, 14 during which new Medtronic rods were installed in plaintiff’s back; and (2) plaintiff’s motion to 15 preserve the rods removed from his back for potential future testing. DISCUSSION 16 17 18 A. Motion for Leave to File Second Amended Complaint Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s 19 pleading once as a matter of course within 21 days after serving it or, if the pleading is one to 20 which a responsive pleading is required, within 21 days after service of a responsive pleading. 21 Fed. R. Civ. P. 15(a). Otherwise, a party may amend only by leave of the court or by written 22 consent of the adverse party. Fed. R. Civ. P. 15(b). Federal Rule of Civil Procedure 15(a) is to be 23 applied liberally in favor of amendments and, in general, leave shall be freely given when justice 24 so requires. See Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994). There is no 25 indication that plaintiff’s motion is sought in bad faith, constitutes an exercise in futility, or creates 26 undue delay. See id. Nor is there any suggestion that allowing plaintiff to file his proposed SAC 27 would cause defendants any undue prejudice. See id. Accordingly, plaintiff’s motion for leave to 28 file a second amended complaint is GRANTED. 2 The Court has screened the SAC as required by 28 U.S.C. § 1915A and finds that, liberally 1 2 construed it states: (1) deliberate indifference to serious medical needs against defendant Burch; 3 (2) supplemental state law claims for negligence, as against defendant Burch; and (3) 4 supplemental state law claims for strict liability, negligence and failure to warn, as against 5 defendant Medtronic, Inc.1 6 B. Motion to Preserve Evidence Plaintiff has filed a motion for a court order directing defendants to preserve the rods 7 surgically removed from his back in 2012 and 2016. Defendants have filed separate responses 9 informing the Court that: (1) the rods removed in 2012 are in Medtronic’s custody and will be 10 preserved, and (2) the rods removed in 2016 were discarded by UCSF. Accordingly, plaintiff’s 11 United States District Court Northern District of California 8 motion is DENIED as moot. CONCLUSION 12 13 For the foregoing reasons and for good cause shown, 14 1. The Clerk is directed to lift the stay. 15 2. Plaintiff’s motion for leave to file a second amended complaint is GRANTED. The 16 Clerk shall FILE plaintiff’s proposed SAC (dkt. no. 111-1 – 111-2). 17 3. Plaintiff’s motion to preserve evidence is DENIED as moot. 18 4. In order to assist plaintiff in proceeding pro se and in order to expedite the case, the 19 Court will bifurcate summary judgment so that the claims against Dr. Burch are heard before the 20 claims against Medtronic. Accordingly, the Court orders as follows: a. 21 No later than 91 days from the date this Order is filed, defendant Bruch 22 must file and serve a motion for summary judgment or other dispositive motion. If defendant is of 23 the opinion that this case cannot be resolved by summary judgment, defendant must so inform the 24 Court prior to the date the motion is due. A motion for summary judgment also must be 25 accompanied by a Rand notice so that plaintiff will have fair, timely and adequate notice of what 26 1 27 28 Plaintiff attempts to state a separate claim against Dr. Burch for “failure to warn.” Typically, “failure to warn” is a theory of liability against a product manufacturer, not medical personnel. However, plaintiff’s “failure to warn” claim is subsumed in his negligence claim against Dr. Burch. 3 1 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 2 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 3 served concurrently with motion for summary judgment). b. 4 Plaintiff’s opposition to the summary judgment or other dispositive motion 5 must be filed with the Court and served upon defendant Burch no later than 28 days from the date 6 the motion is filed. Plaintiff must bear in mind the notice and warning regarding summary 7 judgment provided later in this Order as he prepares his opposition to any motion for summary 8 judgment. c. 9 Defendant Burch shall file a reply brief no later than 14 days after the date the opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. 11 United States District Court Northern District of California 10 No hearing will be held on the motion. 12 5. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 13 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 14 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 15 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 16 any fact that would affect the result of your case, the party who asked for summary judgment is 17 entitled to judgment as a matter of law, which will end your case. When a party you are suing 18 makes a motion for summary judgment that is properly supported by declarations (or other sworn 19 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 20 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 21 as provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and 22 documents and show that there is a genuine issue of material fact for trial. If you do not submit 23 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 24 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 25 Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A). 26 27 28 (The Rand notice above does not excuse defendant’s obligation to serve said notice again concurrently with his motion for summary judgment. Woods, 684 F.3d at 939). 6. Any motion for an extension of time must be filed no later than the deadline sought 4 1 2 3 to be extended and must be accompanied by a showing of good cause. 7. The claims against defendant Medtronic are stayed pending resolution of defendant Burch’s motion for summary judgment. 4 This Order terminates Docket Nos. 108 and 111. 5 IT IS SO ORDERED. 6 Dated: 2/21/2017 7 8 HAYWOOD S. GILLIAM, JR. United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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