Richard Pohly v. Intuitive Surgical, Inc.

Filing 6

ORDER DENYING MOTION TO RELATE CASES (84 in case 3:13-cv-04863-JST). Signed by Judge Jon S. Tigar on September 16, 2015. (wsn, COURT STAFF) (Filed on 9/16/2015)

Dated: September 16, 2015

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F
D IS T IC T O
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ILLINOIS UNION INSURANCE COMPANY, an
Illinois corporation,

Civil Action No. 3:13-CV-04863 JST

Plaintiff,
v.
INTUITIVE SURGICAL, INC., a Delaware
corporation,
Defendant.

ADMINISTRATIVE MOTION OF
MOVANT RICHARD POHLY TO
CONSIDER WHETHER CASES
SHOULD BE RELATED
[N.D. Cal. Civ. L.R. 3-12, 7-11]

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RICHARD POHLY,

Civil Action No. 5:15-cv-04113-PSG
Plaintiff,

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v.

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INTUITIVE SURGICAL, INC., a Delaware
corporation headquartered in California,
Defendant.

ADMINISTRATIVE MOTION OF
PLAINTIFF RICHARD POHLY TO
CONSIDER WHETHER CASES
SHOULD BE RELATED
[N.D. Cal. Civ. L.R. 3-12, 7-11]

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ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES
SHOULD BE RELATED – Page 1
Pohly v. ISI

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Attorneys for Plaintiff Richard Pohly

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Richard H. Friedman (CA Bar No. 221622)
[e-mail]
FRIEDMAN | RUBIN
51 University Street, Suite 201
Seattle, WA 98101
Ph: 206-501-4446
Fax: [phone]

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S DISTRICT
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FRIEDMAN | RUBIN
51 U NIVERSITY S TREET , S UITE 201
S EATTLE , WA 98101‐3614
(206) 501‐4446

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TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

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Pursuant to N.D. Cal. Civil Local Rules 3-12 and 7-11, Movant and Plaintiff Richard

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Pohly (“Pohly”) hereby files this Administrative Motion to Consider Whether Cases Should Be

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Related to consider whether the cases Illinois Union Ins. Co. v. Intuitive Surgical, Inc., No.

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3:13-cv-04113-PSG (the “Illinois Union case”), which has already been determined to be

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related to Navigators Specialty Ins. Co. v. Intuitive Surgical, Inc., Case No. 3:13-cv-05801 (the

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Navigators case”) should be related to the case of Pohly v. Intuitive Surgical, Inc., Case No.

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5:15-cv-04113-JST (the “Pohly case ”).

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I.

ACTION REQUESTED

An order pursuant to Civil Local Rule 3-12 relating the Pohly case and the Illinois Union

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case, which has already been found to be related to the Navigators case, and assigning this case

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to the judge currently assigned to the Illinois Union and Navigators cases.

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II.

REASONS SUPPORTING THE REQUEST

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The applicable standard is contained in Civil Local Rule 3-12: “An action is related to

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another when (1) The actions concern substantially the same parties, property, transaction or

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event; and (2) It appears likely that there will be an unduly burdensome duplication of labor and

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expense or conflicting results if the cases are conducted before different judges.”

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The Pohly case and the Illinois Union-Navigators cases are related because they involve

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substantially the same parties and events. See Civ. L.R. 3-12(a)(1). If the cases are conducted

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before different judges, there will likely be a burdensome duplication of labor and expense. See

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Civ. L.R. 3-12(a)(2).

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ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES
SHOULD BE RELATED – Page 2
Pohly v. ISI

FRIEDMAN | RUBIN
51 U NIVERSITY S TREET , S UITE 201
S EATTLE , WA 98101‐3614
(206) 501‐4446

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A.

Pohly and Illinois Union/Navigators Involve Substantially the Same Parties.

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1. Titles and Case Numbers

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The Pohly case: Richard Pohly v. Intuitive Surgical, Inc., No. 5:15-cv-04113-PSG.

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The Illinois Union case:

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Illinois Union Insurance Company v. Intuitive Surgical, Inc.,

No. 3:13-CV-04863 JST.

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Intuitive Surgical, Inc., is a named defendant in both the Pohly case, the Illinois Union

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case (involving two different insurance companies, as described below), and the Navigators

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case. Mr. Pohly also believes Intuitive will use the same lead counsel in each of the lawsuits.

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Intuitive is defended by Allen Ruby of Skadden Arps in each of the insurance cases. Mr.

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Pohly’s counsel believes Mr. Ruby will also be lead counsel in the Pohly case. This is because

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Mr. Ruby has appeared as lead counsel in two other ongoing product liability actions brought by

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Mr. Pohly’s counsel in Washington state.1

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substantially the same.

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B.

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Thus, even the counsel for the parties are

Pohly and Illinois Union/Navigators Involve Similar and Interrelated Fact
Questions.

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Intuitive Surgical, Inc., the manufacturer of the “da Vinci” surgical robot, has been sued

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at least 94 times for injuries caused by product defects.2 Richard Pohly is the most recent

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injured person to sue Intuitive, having brought suit in this District on September 9, 2015.3

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Intuitive apparently sought indemnity from liability arising from these product liability

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suits from at least three different insurers, each of whom are currently in litigation with Intuitive

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The undersigned counsel makes this representation as an officer of the Court. If it is disputed,
counsel is happy to provide a sworn declaration to this effect.
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Pohly case, 5:15-cv-04113-PSG, at Dkt. #1 (complaint), id. at ¶14 (93 other suits).
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Id.
ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES
SHOULD BE RELATED – Page 3
Pohly v. ISI

FRIEDMAN | RUBIN
51 U NIVERSITY S TREET , S UITE 201
S EATTLE , WA 98101‐3614
(206) 501‐4446

1

over the indemnity obligation in front of this Court. The first suit was a declaratory action for

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rescission filed by Illinois Union (the Illinois Union case). Navigators, the second insurer,

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subsequently filed another declaratory action for rescission (the Navigators case). Intuitive then

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cross-complained in the Illinois Union case against the third insurer, Ironshore, which counter-

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claimed against Intuitive for declaratory relief that no obligation is owed. The Illinois Union

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and Navigators actions were deemed related by this Court.4

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The insurance cases each ask the question of whether “Intuitive Surgical concealed

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material information relating to known claims during the application process.”5 It appears,

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speaking generally, the insurance companies believe Intuitive was aware of numerous injury

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claims that it put into “tolling agreements” with the injured plaintiffs but failed to disclose those

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claims to the insurers. Similar issues are raised in the Pohly case: Mr. Pohly alleges Intuitive

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was aware that the defects in its robotic surgery system were causing injuries throughout the

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country, but that Intuitive failed to disclose these injuries to doctors, hospitals, and the FDA.

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Thus, each of these suits concerns what Intuitive knew about the injuries its product was

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causing, and when. In this way, they concern the same “events” under Local Rule 3-12(a)(1).

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Finally, Mr. Pohly’s claim was itself placed into Intuitive’s “tolling agreement” system

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while the parties attempted to resolve the claim short of litigation. Thus, the Pohly case

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provides a concrete example of one of the kinds of cases that Intuitive and its insurers are

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litigating.

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Illinois Union case, 3:13-CV-04863 JST, at Dkt. #20.
Illinois Union case at Dkt. #18 (related case motion) at 3:10-12.

ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES
SHOULD BE RELATED – Page 4
Pohly v. ISI

FRIEDMAN | RUBIN
51 U NIVERSITY S TREET , S UITE 201
S EATTLE , WA 98101‐3614
(206) 501‐4446

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III.

CONCLUSION

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Mr. Pohly’s case involves the same parties, the same counsel, and many of the same

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interrelated factual questions about the timing of Intuitive’s knowledge and disclosure of the

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injuries caused by its product. For this reason, it makes sense to have the same judge for each

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of these cases. Doing so will most efficiently use the Court’s resources.

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DATED: September 10, 2015

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/s/ Richard Friedman
Richard Friedman, No. 221622
FRIEDMAN| RUBIN
51 University Street, Suite 201
Seattle, WA 98101
Telephone: [phone]
Facsimile: 206-623-0794
Email: [e-mail]

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ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES
SHOULD BE RELATED – Page 5
Pohly v. ISI

FRIEDMAN | RUBIN
51 U NIVERSITY S TREET , S UITE 201
S EATTLE , WA 98101‐3614
(206) 501‐4446