McCann v. Jupina et al

Filing 82

ORDER by Magistrate Judge Jacqueline Scott Corley granting 68 Defendants' Motion for Partial Summary Judgment (ahm, COURT STAFF) (Filed on 9/11/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM DENIS MCCANN,
Plaintiff,

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United States District Court
Northern District of California

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Case No.16-cv-03244-JSC

v.
DAVID JUPINA, et al.,
Defendants.

ORDER GRANTING DEFENDANTS'
PARTIAL SUMMARY JUDGMENT
MOTION
Re: Dkt. No. 68

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Plaintiff William D. McCann sues Defendants Dr. David Jupina and Tri Valley

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Orthopedics & Sports Medicine Group, Inc. for medical malpractice and fraud. Plaintiff alleges

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that Dr. Jupina negligently performed Plaintiff’s total knee replacement, which resulted in

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infection; negligently failed to detect and treat the infection; and thereafter fraudulently concealed

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its existence. (Dkt. No. 62.) Now pending before the Court is Defendants’ motion for partial

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summary judgment of Plaintiff’s fraud claim. Having considered the parties’ submissions, and

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having had the benefit of oral argument on September 7, 2017, the Court GRANTS Defendants’

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motion for partial summary judgment as no reasonable trier of fact could find that Dr. Jupina knew

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Plaintiff had an infection and intentionally concealed that fact from him.

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BACKGROUND
On October 13, 2014, Plaintiff had knee replacement surgery. (Dkt. No. 69-1 at 64.) One

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week later Dr. Jupina physically examined the wound. Id. He noted some irritation on the skin

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but no infection. Id. Dr. Jupina was happy with Plaintiff’s progress. Id.

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Two weeks later, during Plaintiff’s second visit, Dr. Jupina observed Plaintiff had a suture

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reaction, or a superficial infection. (Dkt. No. 69-1 at 24: 5-15.) He used a Q-tip-like swab to poke

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the area but did not find any tracking of the infection to a deeper level. (Dkt. No. 69-1 at 23:12-

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20.) He noted there was no deep infection. (Dkt. No. 74-1 at 19.) Dr. Jupina placed Plaintiff on

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antibiotics to treat the superficial infection. (Dkt No. 24:13-15.). Plaintiff does not recall Dr.

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Jupina touching the suture with the Q-tip swab and believes he would have remembered had it

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occurred. (Dkt. No. 74-1 at 3:3-6.)

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Two weeks later Plaintiff visited Dr. Jupina again, stating that he had completed the

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antibiotics but was feeling discouraged because he was feeling increasing pain while working with

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physical therapy. (Dkt No. 74-1 at 20.) Dr. Jupina noted that the wound was healing and there

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was some ongoing evidence of the superficial infection, but no deep infection. (Id.) Dr. Jupina

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attributed Plaintiff’s increased pain to physical therapy exercises or rehabilitation. (Dkt. No. 69-1

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United States District Court
Northern District of California

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at 30.)
Approximately two months after the surgery, in December 2014, Dr. Jupina saw that

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Plaintiff’s wound was healing well with no signs of infection. (Dkt. No. 71-1 at 21.) He noted

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Plaintiff was exhibiting signs of improvement. (Id.) Dr. Jupina instructed Plaintiff to return in

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two months after Plaintiff’s vacation. (Id.)

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Plaintiff returned in February 2015 complaining of swelling, pain, and stiffness. (Id.) Dr.

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Jupina noted the knee wound healed, but had a long discussion with Plaintiff about his ongoing

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pain and stiffness. (Id.) Dr. Jupina informed Plaintiff that he had a genetic tendency to build up

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scar tissue. (Dkt. No. 69-3 at 16:9-10.) Dr. Jupina suggested a manipulation of the knee under

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anesthesia (Dkt. No. 71-1 at 21) and performed this manipulation approximately one week later.

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(Id. at 27.) The manipulation was a significant clinical event, but does not appear in Dr. Jupina’s

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notes. (Dkt. No. 74-2 at 4:7-13.) After the manipulation, Dr. Jupina showed Plaintiff a video he

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had taken on his iPhone stating “look, full range of extension and flexion.” (Dkt. No. 69-3 at

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18:18-20.) At this time, February 2015, Plaintiff believes Dr. Jupina knew Plaintiff’s knee was

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infected, but instead used the video on his iPhone to create an elaborate story that his knee was

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bound by scar tissue rather than by infection. (Dkt. No. 74-1 at 4:7-12.) Plaintiff also noticed Dr.

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Jupina, typically a man of few words, spent an inordinate amount of time describing Plaintiff’s

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unique genetic disposition to rapidly created scar tissue. (Id. at 4:12-14.)

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In May 2015, Plaintiff returned complaining of continued stiffness. (Dkt. No. 74-1 at 24.)
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Dr. Jupina noted the wound healed, but that Plaintiff walked with a pronounced limp and his range

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of motion was quite limited. (Id.) Dr. Jupina had a long conversation with Plaintiff about his

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“complex situation,” stating that Plaintiff should consider further evaluation with another

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orthopedic surgeon for a second opinion regarding “possible revision-type surgery.” (Id.) Dr.

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Jupina noted that Plaintiff was not making any gains despite physical therapy, and offered to

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contact Plaintiff in the near future with further recommendations. (Id.)

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Dr. Jupina had no question that Plaintiff was having problems with his knee, and wanted

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Plaintiff to get a second opinion. (Dkt. No. 69-1 at 46.) Dr. Jupina informed Plaintiff he had

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failed knee surgery. (Dkt. No. 69-3 at 21:15.) Dr. Jupina believed that Plaintiff’s scar tissue had
built up and not remitted. (Id. at 21:23-25.) Plaintiff recalls Dr. Jupina giving Plaintiff an

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United States District Court
Northern District of California

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unhappy look and stating, “I don’t know what to do. So I’m going to refer you to another doctor

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for a second opinion.” (Id. at 22:7-11.)

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One month later Plaintiff saw Dr. Stine, another physician at the same facility. (Dkt. No.

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74-1 at 27.) Dr. Stine noted that Plaintiff had persistent knee pain and dysfunction as a result of

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knee surgery. (Id.) Dr. Stine stated that Plaintiff appeared to have a “soft tissue problem” and

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ordered blood testing. (Id. at 28-30) If these tests showed elevated levels, Dr. Stine recommended

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aspiration of the knee. (Id. at 28.) Dr. Stine believed there was a chance the implant, while well

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positioned, needed to be revised for adequate release of scar tissue. (Id.) Dr. Stine instructed

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Plaintiff to follow-up with Dr. Jupina. (Id.)

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Dr. Stine spoke with Dr. Jupina after seeing Plaintiff. (Dkt. No. 69-1 at 47:5-10.) Dr.

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Stine informed Dr. Jupina that Plaintiff’s knee was stiff and needed some sort of additional

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treatment. (Id.) Dr. Stine also informed Dr. Jupina that he had ordered some lab work for

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Plaintiff. (Id.)

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The following month, June 2015, Dr. Jupina reviewed the lab values, which he believed

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were elevated, and as a result performed an aspiration in order to rule out infection. (Id. at 47:11-

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22, 48:21-25, 49:1-2; 54:7-9.) The aspiration involved putting Plaintiff under an anesthetic,

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inserting a needle into his knee to draw fluid, and testing the fluid for infection. (Dkt. No. 69-3. at

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25:19-22.) Plaintiff’s aspiration was negative, but Dr. Jupina knew that generally speaking a
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negative result does not rule out an infection. (Dkt. No. 69-1 at 51:4-11.) Plaintiff believes that

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Dr. Jupina knew Plaintiff had an infection. (Dkt. No. 74-1 at 5:6-7.) Plaintiff had the impression

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Dr. Jupina was acting like a “culpable person” during his aspiration visit because Dr. Jupina: (1)

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showed Plaintiff a picture of his “many children at a lake”; (2) his face was red; (2) he looked

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embarrassed or sheepish; (3) and when he inserted the needle Dr. Jupina said “this probably won’t

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show anything.” (Id. at 5:9-14.)
On July 8, Dr. Jupina’s assistant sent Plaintiff an email stating: “No Infection, Everything

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on the labs was great.”(Dkt. No. 74-2 at 7.) Dr. Jupina had informed his assistant to send Plaintiff

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an email stating that the aspiration results were negative, but Dr. Jupina does not specifically recall

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asking his assistant to tell Plaintiff there was no infection. (Dkt. No. 69-1 at 53:10-12.)
DISCUSSSION

United States District Court
Northern District of California

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Defendants move for partial summary judgment of Plaintiff’s fraud claim. The elements

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of fraud are: (1) a misrepresentation, which includes a concealment or nondisclosure; (2)

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knowledge of the falsity of the misrepresentation, i.e., scienter; (3) intent to induce reliance on the

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misrepresentation; (4) justifiable reliance; and (5) resulting damages. Small v. Fritz Companies,

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Inc., 30 Cal.4th 167, 173 (2003). Plaintiff alleges Dr. Jupina knew Plaintiff’s knee had a deep

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infection and concealed that fact from Plaintiff.. Suppression of a fact by one who is bound to

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disclose it may constitute fraud. Cal. Civ. Code § 1710(3); Blickman Turkus, LP v. MF Downtown

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Sunnyvale, LLC, 162 Cal.App.4th 858, 868 (2008).

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I.

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Fraudulent Concealment
“[T]he elements of an action for fraud and deceit based on concealment are: (1) the

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defendant must have concealed or suppressed a material fact, (2) the defendant must have been

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under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally

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concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have

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been unaware of the fact and would not have acted as he did if he had known of the concealed or

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suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must

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have sustained damage.” Marketing West, Inc. v. Sanyo Fisher (USA) Corp.,6 Cal.App.4th 603,

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612–613 (1992).
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For fraudulent concealment to be actionable, defendant must have been under a duty to

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disclose the facts to plaintiff. Hahn v. Mirda, 147 Cal.App.4th 740, 745 (2007). “The doctor-

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patient relationship is a fiduciary one” and creates a duty to not misrepresent “the nature of a

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patient’s medical condition.” Id. The duty to disclose arises when two elements are present: (1)

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the material fact is known to the defendant; and (2) the defendant knows the plaintiff is unaware of

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the fact and cannot reasonably discover the undisclosed fact. San Diego Hospice v. County of San

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Diego, 31 Cal.App.4th 1048, 1555-1556 (1995). A duty cannot arise when the fact is

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not actually known to the defendant. See id. (“[w]e are unwilling to impose upon a party a duty to

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disclose when, as here, that party cannot possibly satisfy the duty).

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Here, based on the record before the Court, no reasonable trier of fact could find that Dr.

United States District Court
Northern District of California

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Jupina knew Plaintiff had a deep tissue infection. No test result told Dr. Jupina that Plaintiff had a

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deep tissue infection; indeed, Plaintiff contends that in November 2015 Dr. Jupina did not even do

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the q-tip test to probe the wound. No expert has opined that based on what Dr. Jupina observed he

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had to know that Plaintiff had an infection despite not having any test results. There is no other

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evidence—such as Dr. Jupina’s notes or testimony from others—that supports a finding that he

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knew Plaintiff had a deep tissue infection. To the contrary, Dr. Jupina referred Plaintiff for a

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second opinion which is inconsistent with Dr. Jupina knowing that Plaintiff had an infection and

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wanting to conceal that fact from Plaintiff. Plaintiff’s emphasis on Dr. Jupina’s failure to order

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lab tests that would have revealed the infection, despite Plaintiff having symptoms consistent with

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an infection, is a negligence argument. Plaintiff himself admits that Dr. Jupina gave him an

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unhappy look, told him he didn’t know what was wrong with Plaintiff’s knee, and wanted to refer

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Plaintiff to specialist so that specialist could do further testing to determine what was wrong.

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Showing Plaintiff photos of his family, having a red face, and exhibiting sheepish behavior is

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insufficient to show that Dr. Jupina actually knew Plaintiff had a deep tissue infection. Similarly,

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Dr. Jupina’s alleged failure to report this lawsuit and Plaintiff’s infection to his hospital do not

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support a finding that before he was advised of Plaintiff’s subsequent diagnosis he knew Plaintiff

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had an infection. Plaintiff’s fraud claim fails.

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CONCLUSION

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For the reasons described above, Defendants’ motion for summary judgment against

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Plaintiff’s fraud claim is GRANTED.
This Order disposes of Docket. No. 68.

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IT IS SO ORDERED.
Dated: September 11, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
Northern District of California

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