Cunningham v. Medtronic Inc. et al

Filing 112

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING PLAINTIFFS 108 MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT; DENYING AS MOOT PLAINTIFFS 111 MOTION TO PRESERVE EVIDENCE; SCHEDULING SUMMARY JUDGMENT. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 2/21/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LORENZO R. CUNNINGHAM,
Plaintiff,

United States District Court
Northern District of California

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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

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INTRODUCTION
Plaintiff, a California state prisoner incarcerated at the California Healthcare Facility, filed

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this pro se action pursuant to 42 U.S.C. § 1983, alleging constitutional and state tort violations

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arising out of a 2012 surgery during which he had rods installed in his back. The surgery was

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performed by defendant UCSF Medical Doctor Shane Burch (“Burch”), and the rods were

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manufactured by a company acquired by defendant Medtronic, Inc (“Medtronic”). In an order

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filed March 2, 2015, the Court screened the complaint (dkt. no. 1), and determined that it stated

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the following cognizable claims: (1) deliberate indifference to serious medical needs against

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defendant Burch; (2) a supplemental state law negligence claim against defendant Burch; and

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(3) supplemental state law product liability claims against defendant Medtronic. See Dkt. No. 18.

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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

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against Burch. On March 2, 2016, the Court declined to exercise supplemental jurisdiction over

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the remaining state law claims and closed the case.

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On April 8, 2016, the Court granted plaintiff’s motion to reopen the action and referred the

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parties to early settlement proceedings before Magistrate Judge Nandor Vadas. After Judge Vadas

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reported that the case did not settle, the Court, on November 29, 2016, stayed the action and

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referred it to the Federal Pro Bono Project to find counsel to represent plaintiff pro bono. After an

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extensive search, the Federal Pro Bono Project informed the Court that it has been unable to locate

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counsel willing to represent plaintiff at this juncture in the proceedings. In light of these

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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

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United States District Court
Northern District of California

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proceedings pursuant to the schedule set forth below.
Now before the Court is: (1) plaintiff’s motion for leave to file a second amended

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complaint (“SAC”) to add claims arising out of a 2016 back surgery performed by Dr. Burch,

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during which new Medtronic rods were installed in plaintiff’s back; and (2) plaintiff’s motion to

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preserve the rods removed from his back for potential future testing.
DISCUSSION

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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

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pleading once as a matter of course within 21 days after serving it or, if the pleading is one to

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which a responsive pleading is required, within 21 days after service of a responsive pleading.

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Fed. R. Civ. P. 15(a). Otherwise, a party may amend only by leave of the court or by written

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consent of the adverse party. Fed. R. Civ. P. 15(b). Federal Rule of Civil Procedure 15(a) is to be

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applied liberally in favor of amendments and, in general, leave shall be freely given when justice

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so requires. See Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994). There is no

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indication that plaintiff’s motion is sought in bad faith, constitutes an exercise in futility, or creates

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undue delay. See id. Nor is there any suggestion that allowing plaintiff to file his proposed SAC

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would cause defendants any undue prejudice. See id. Accordingly, plaintiff’s motion for leave to

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file a second amended complaint is GRANTED.
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The Court has screened the SAC as required by 28 U.S.C. § 1915A and finds that, liberally

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construed it states: (1) deliberate indifference to serious medical needs against defendant Burch;

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(2) supplemental state law claims for negligence, as against defendant Burch; and (3)

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supplemental state law claims for strict liability, negligence and failure to warn, as against

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defendant Medtronic, Inc.1

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B.

Motion to Preserve Evidence
Plaintiff has filed a motion for a court order directing defendants to preserve the rods

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surgically removed from his back in 2012 and 2016. Defendants have filed separate responses

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informing the Court that: (1) the rods removed in 2012 are in Medtronic’s custody and will be

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preserved, and (2) the rods removed in 2016 were discarded by UCSF. Accordingly, plaintiff’s

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United States District Court
Northern District of California

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motion is DENIED as moot.
CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

The Clerk is directed to lift the stay.

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2.

Plaintiff’s motion for leave to file a second amended complaint is GRANTED. The

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Clerk shall FILE plaintiff’s proposed SAC (dkt. no. 111-1 – 111-2).

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3.

Plaintiff’s motion to preserve evidence is DENIED as moot.

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4.

In order to assist plaintiff in proceeding pro se and in order to expedite the case, the

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Court will bifurcate summary judgment so that the claims against Dr. Burch are heard before the

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claims against Medtronic. Accordingly, the Court orders as follows:
a.

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No later than 91 days from the date this Order is filed, defendant Bruch

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must file and serve a motion for summary judgment or other dispositive motion. If defendant is of

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the opinion that this case cannot be resolved by summary judgment, defendant must so inform the

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Court prior to the date the motion is due. A motion for summary judgment also must be

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accompanied by a Rand notice so that plaintiff will have fair, timely and adequate notice of what

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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.
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is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir.

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2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be

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served concurrently with motion for summary judgment).
b.

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Plaintiff’s opposition to the summary judgment or other dispositive motion

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must be filed with the Court and served upon defendant Burch no later than 28 days from the date

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the motion is filed. Plaintiff must bear in mind the notice and warning regarding summary

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judgment provided later in this Order as he prepares his opposition to any motion for summary

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judgment.
c.

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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.

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United States District Court
Northern District of California

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No hearing will be held on the motion.

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5.

Plaintiff is advised that a motion for summary judgment under Rule 56 of the

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Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must

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do in order to oppose a motion for summary judgment. Generally, summary judgment must be

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granted when there is no genuine issue of material fact – that is, if there is no real dispute about

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any fact that would affect the result of your case, the party who asked for summary judgment is

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entitled to judgment as a matter of law, which will end your case. When a party you are suing

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makes a motion for summary judgment that is properly supported by declarations (or other sworn

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testimony), you cannot simply rely on what your complaint says. Instead, you must set out

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specific facts in declarations, depositions, answers to interrogatories, or authenticated documents,

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as provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and

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documents and show that there is a genuine issue of material fact for trial. If you do not submit

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your own evidence in opposition, summary judgment, if appropriate, may be entered against you.

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If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v.

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Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A).

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(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).
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Any motion for an extension of time must be filed no later than the deadline sought
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to be extended and must be accompanied by a showing of good cause.
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The claims against defendant Medtronic are stayed pending resolution of defendant

Burch’s motion for summary judgment.

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This Order terminates Docket Nos. 108 and 111.

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IT IS SO ORDERED.

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Dated: 2/21/2017

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HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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