Finnerty v. Stryker Corporation et al

Filing 44

ORDER that Plaintiff's 38 Motion for Summary Judgment is Denied. Defendant's 37 Motion for Summary Judgment is Granted in part and Denied in part. Plaintiff's claims for failure to warn, breach of express warranty, and breac h of implied warranties are Dismissed. Plaintiffs remaining claims for negligence, strict liability design defect, and strict liability manufacturing defect survive. Signed by Chief Judge Gloria M. Navarro on 9/12/2016. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHRISTOPHER P. FINNERTY,
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Individually,
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Plaintiff,
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vs.
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HOWMEDICA OSTEONICS
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CORPORATION, A New Jersey corporation, )
also known as STRYKER ORTHOPEDICS; )
DOES 1 through 15, inclusive; and ROE
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BUSINESS ENTITIES 1 through 15,
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inclusive,
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Defendants.
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Case No.: 2:14-cv-00114-GMN-GWF
ORDER

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Pending before the Court is a Motion for Summary Judgment, (ECF No. 37), filed by

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Defendant Howmedica Osteonics Corporation (“Defendant”). Plaintiff Christopher P. Finnerty

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(“Plaintiff”) filed a Response, (ECF No. 40), and Defendant filed a Reply, (ECF No. 43).

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Also pending before the Court is Plaintiff’s Motion for Summary Judgment, (ECF No.

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38). Defendant filed a Response, (ECF No. 39), and Plaintiff filed a Reply, (ECF No. 41). For

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the reasons discussed below, Defendant’s Motion is GRANTED in part and DENIED in part,

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and Plaintiff’s Motion is DENIED.

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I.

BACKGROUND

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This products liability claim case arises out of an alleged failure of a surgical knee

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replacement product, formally known as the “Global Modular Replacement System” (the

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“Product”). (Def.’s MSJ, 2:3–5, ECF No. 37); (Pl.’s MSJ 3:27–4:3, ECF No. 38). In

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December 2004, Plaintiff was diagnosed with clear cell chondrosarcoma in his left leg and

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sought treatment from Dr. Jeffrey Eckardt (“Dr. Eckardt”), an orthopedic oncologist located in

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California. (See Ex. 2 to Def.’s MSJ, ECF No. 37-2). After discussing treatment options

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including, inter alia, amputation of Plaintiff’s left leg, Plaintiff elected to undergo a total knee

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replacement involving implantation of the Product in the hopes of salvaging his leg. (See Ex. 5

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to Def.’s MSJ, ECF No. 37-5).

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On March 21, 2005, Dr. Eckardt performed the total knee replacement surgery on

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Plaintiff at UCLA Medical Center in California. (See Ex. 5 to Def.’s MSJ); (Pl.’s Resp. 9:8,

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ECF No. 40). Dr. Eckardt reconstructed Plaintiff’s left knee by replacing the knee with the

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Product, a “modular Stryker proximal tibia replacement including a kinematic rotating hinge.”

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(Id.). At the time of the surgery, Plaintiff was clinically “obese.” (Ex. 2 to Def.’s MSJ). After

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the March 2005 surgery and through November 2011, Plaintiff did not experience any pain or

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instability in the operated knee. (Pl.’s Dep. at 28, Ex. 7 to Def.’s Resp., ECF No. 39-7).

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In August 2011, Plaintiff accepted a job with First Transit as a Bus Operator for the

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McCarran Rent-a-Car Center Shuttle System in Las Vegas, Nevada. (Id. at 7). Plaintiff’s job

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required him to “lift up to 80 pounds of luggage on a repetitive basis.” (Ex. 8 to Def.’s MSJ,

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ECF No. 37-8). In December 2011, while Plaintiff was lifting luggage onto the bus for

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passengers, he turned and heard a “pop” in his left knee. (Pl.’s Dep. at 28); (see also Ex. 13 to

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Def.’s MSJ, ECF No. 37-13). Shortly thereafter, Plaintiff’s treating physician, Dr. Ronald

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Hillock (“Dr. Hillock”), performed a revision surgery on Plaintiff’s knee, during which Dr.

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Hillock discovered that the Product had fractured. (Ex. 13 to Def.’s MSJ); (Hillock Dep. at 21–

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22, Ex. 7 to Def.’s MSJ, ECF No. 37-7). Following the revision surgery, Plaintiff began to

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experience complications. (See Hillock Dep. at 22–23). Ultimately, Plaintiff elected for

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amputation of his left leg. (Ex. 14 to Def.’s MSJ, ECF No. 37-14).

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Based on these facts, Plaintiff asserts claims against Defendant for failure to warn,
negligence, strict liability design defect and manufacturing defect, breach of express warranty,

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and breach of implied warranty. (See Am. Compl., ECF No. 14). Defendant now seeks

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summary judgment on each of Plaintiff’s claims, and Plaintiff seeks summary judgment on his

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failure-to-warn claim.

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II.

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LEGAL STANDARD
The Federal Rules of Civil Procedure provide for summary adjudication when the

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pleadings, depositions, answers to interrogatories, and admissions on file, together with the

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affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant

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is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that

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may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to

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return a verdict for the nonmoving party. Id. “Summary judgment is inappropriate if

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reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict

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in the nonmoving party’s favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th

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Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A

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principal purpose of summary judgment is “to isolate and dispose of factually unsupported

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claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

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In determining summary judgment, a court applies a burden-shifting analysis. “When

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the party moving for summary judgment would bear the burden of proof at trial, it must come

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forward with evidence which would entitle it to a directed verdict if the evidence went

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uncontroverted at trial. In such a case, the moving party has the initial burden of establishing

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the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp.

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Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In

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contrast, when the nonmoving party bears the burden of proving the claim or defense, the

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moving party can meet its burden in two ways: (1) by presenting evidence to negate an

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essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving

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party failed to make a showing sufficient to establish an element essential to that party’s case

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on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 323–24. If

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the moving party fails to meet its initial burden, summary judgment must be denied and the

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court need not consider the nonmoving party’s evidence. Adickes v. S.H. Kress & Co., 398 U.S.

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144, 159–60 (1970).

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If the moving party satisfies its initial burden, the burden then shifts to the opposing

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party to establish that a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v.

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Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute,

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the opposing party need not establish a material issue of fact conclusively in its favor. It is

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sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the

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parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

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Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid

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summary judgment by relying solely on conclusory allegations that are unsupported by factual

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data. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go

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beyond the assertions and allegations of the pleadings and set forth specific facts by producing

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competent evidence that shows a genuine issue for trial. Celotex Corp., 477 U.S. at 324.

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At summary judgment, a court’s function is not to weigh the evidence and determine the

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truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The

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evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in

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his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not

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significantly probative, summary judgment may be granted. Id. at 249–50.

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II.

DISCUSSION
Plaintiff asserts claims against Defendant for failure to warn, negligence, strict liability

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design defect and manufacturing defect, breach of express warranty, and breach of implied

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warranty. (See Am. Compl., ECF No. 14). The Court considers each claim in turn.

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A.

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Plaintiff seeks summary judgment on his failure-to-warn claim on the basis that

Failure to Warn

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“[Defendant] failed to warn about the risks associated with their manufactured knee

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replacement, and as a result, caused [Plaintiff] and the ensuing need for an amputation.” (Pl.’s

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MSJ 8:24–26, ECF No. 38). Defendant also seeks summary judgment on this claim, arguing

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that it provided adequate warnings to Dr. Eckardt regarding the Product. (Def.’s MSJ 7:1–10:8,

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ECF No. 37).

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The Court’s analysis on this claim proceeds in two steps. First, as a preliminary matter,

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the parties dispute whether California or Nevada law should apply to the failure-to-warn claim.

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(Def.’s Resp. 3:2–16, ECF No. 39); (Pl.’s Resp. 8:26–10:13, ECF No. 40). While the action

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was brought in Nevada, the alleged injury and the underlying conduct giving rise to the injury

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occurred in California. Under Nevada’s choice of law principles, the Court finds that

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California law applies to Plaintiff’s failure-to-warn claim.1 Next, applying California law, the

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Court grants Defendant’s Motion for Summary Judgment on this claim.

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1.

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Choice of Law
a.

Legal Standard

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“A federal court sitting in diversity ordinarily must follow the choice-of-law rules of the

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State in which it sits.” Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Tex., 134 S. Ct.

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568, 582 (2013). Nevada’s choice-of-law jurisprudence in tort actions is governed by the most

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significant relationship test, as provided by the Restatement (Second) of Conflict of Laws

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§ 145. Gen. Motors Corp. v. Eighth Judicial Dist. Court of State of Nev. ex rel. County of

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Clark, 122 Nev. 466 (2006). Section 145 provides:

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Although the parties disagree on what law governs Plaintiff’s failure-to-warn claim, the parties agree that
Nevada law governs Plaintiff’s remaining claims. (See Pl.s’ Resp. 15:5–6, ECF No. 40). As a result, neither
party provides any analysis on whether California law or Nevada law should apply to those claims, and the Court
declines to undertake such analysis. The Court therefore assumes without deciding that Nevada law applies to
Plaintiff’s remaining claims.

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(1) The rights and liabilities of the parties with respect to an issue in
tort are determined by the local law of the state which, with respect
to that issue, has the most significant relationship to the occurrence
and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of
§ 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation
and place of business of the parties, and
(d) the place where the relationship, if any, between the parties
is centered.

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Restatement (Second) of Conflict of Laws § 145 (1971). These contacts are to be evaluated
according to their relative importance with respect to the particular issue.
Section 145 applies to tort actions “unless another, more specific section of the Second

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Restatement applies to the particular tort.” Gen. Motors Corp., 122 Nev. at 473. The Second

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Restatement specifically addresses personal injury actions in § 146, providing a modified

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version of the most significant relationship test. Section 146 of the Second Restatement states:

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In an action for personal injury, the local law of the state where the
injury occurred determines the rights and liabilities of the parties,
unless, with respect to the particular issue, some other state has a
more significant relationship under the principles stated in § 6 to the
occurrence and the parties, in which event the local law of the other
state will be applied.

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Restatement (Second) of Conflict of Laws § 146.
The Second Restatement defines “personal injury” as “either physical harm or mental

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disturbance, such as fright and shock, resulting from physical harm or from threatened physical

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harm or other injury to oneself or to another.” Id. § 146 cmt. b. Both § 145 and § 146

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incorporate the following principles from § 6:

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(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular issue,
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(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be
applied.

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Vignola v. Gilman, 854 F. Supp. 2d 883, 887 (D. Nev. 2012). These principles are not intended

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to be exclusive and no one principle is weighed more heavily than another. Restatement

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(Second) of Conflict of Laws § 6 (1971).

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b.

Nevada Law Applies to Plaintiff’s Failure-to-Warn Claim

After consideration of the factors and principles in the Restatement (Second) of Conflict

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of Laws §§ 6, 145, and 146, the Court finds that California bears the most significant

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relationship to Plaintiff’s failure-to-warn claim. The needs of interstate and international

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systems and the basic policies underlying this particular field of law do not favor Nevada any

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more than they do California. See Restatement (Second) of Conflict of Laws § 6(a), (e). To the

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extent that these two factors are applicable here, they are neutral. Likewise, the relevant

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policies of Nevada and California neutralize one another. See id. § 6(b), (c). On the one hand,

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Nevada has an interest in protecting its citizens, and on the other, California has an equally

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strong interest in ensuring that surgeries performed within its borders comport with its

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applicable state laws. These two factors are therefore neutral.

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The protection of justified expectations favors applying California law. See id. § 6(d).

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California has a justified expectation that its tort rules will be applied to conduct related to

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surgeries occurring in California. Additionally, entities conducting business in California have

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a justified expectation they will be held accountable under California tort law. In contrast, out-

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of-state visitors do not have a justifiable expectation that they will bring their state’s laws with

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them when they travel. In situations such as this one, allowing plaintiffs to drag Nevada’s

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failure-to-warn laws with them when they visit another state would, in practice, permit Nevada

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to usurp other states’ legislatures. Accordingly, this factor favors the application of California

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law.

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Applying California law to this action also furthers the certainty, predictability, and

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uniformity of results. See Restatement (Second) of Conflict of Laws § 6(f). Implantation of the

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alleged defective Product occurred in California, and therefore, California is the place where

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the injury occurred. Moses v. Danek Med., Inc., No. CV-S-95-512 PMP RLH, 1998 WL

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1041279, at *4 (D. Nev. Dec. 11, 1998) (“The place where the injury was suffered is not

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automatically the place where the injury occurred.”). Moreover, the conduct giving rise to

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Plaintiff’s failure-to-warn claim occurred exclusively in California. When the conduct and

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injury occur in one state, common sense dictates that applying that state’s law provides

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certainty, predictability, and uniformity to future incidents whose conduct and injury occur in

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the same state. Given the “general rule in section 146 [that] requires the court to apply the law

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of the state where the injury took place,” Gen. Motors Corp., 122 Nev. at 475, this factor favors

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applying California law.

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Finally, while Nevada courts are most familiar with Nevada law, California’s tort law,

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although different, is not particularly complicated or difficult to apply. See Restatement

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(Second) of Conflict of Laws § 6(g). This factor only slightly favors the application of Nevada

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law. In consideration of the foregoing factors, the Court concludes that Nevada does not have a

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more significant relationship to the failure-to-warn claim which would warrant application of

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Nevada law. Accordingly, the Court finds that, with regard to this claim, the rights of Plaintiff

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and the liability of Defendant are determined by California law.

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2.

California – Failure to Warn

The California Supreme Court has held that “[m]anufacturers are strictly liable for
injuries caused by their failure to give warning of dangers that were known to the scientific

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community at the time they manufactured and distributed the product[.]”2 Carlin v. Superior

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Court, 920 P.2d 1347, 1348 (Cal. 1996). In the medical device context, California applies the

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“learned intermediary” doctrine, which provides that the duty to warn runs to the physician, not

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the patient. Id. at 1360–61. Thus, a manufacturer discharges its duty to warn if it provides

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adequate warnings to the physician about any known or reasonably knowable dangerous side

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effects, regardless of whether the warning reaches the patient. See, e.g., Stanley v. Novartis

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Pharm. Corp., 11 F. Supp. 3d 987, 1002–03 (C.D. Cal. 2014). Additionally, “[a] plaintiff

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asserting causes of action based on a failure to warn must prove not only that no warning was

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provided or the warning was inadequate, but also that the inadequacy or absence of the warning

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caused the plaintiff’s injury.” Motus v. Pfizer Inc., 196 F. Supp. 2d 984, 990–91 (C.D. Cal.

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2001), aff’d sub nom. Motus v. Pfizer Inc. (Roerig Div.), 358 F.3d 659 (9th Cir. 2004).
Defendant’s training materials warn that the Product is contraindicated in “overweight or

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obese patient[s]” and patients whose occupation “includes significant impact loads (walking,

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running, lifting or twisting).” (Ex. 16 to Def.’s MSJ at 6, 10, ECF No. 37-16). Although Dr.

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Eckardt testified at his deposition that he was unaware of this specific literature, (Eckardt Dep.

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9:10–13, Ex. 6 to Def.’s MSJ, ECF No. 37-6), Dr. Eckardt was nevertheless aware of unique

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risks associated with knee replacements in obese patients, and those risks “wouldn’t have made

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any difference” to his decision to attempt to salvage Plaintiff’s leg by implanting the Product.

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(Id. 9:10–19). Indeed, Dr. Eckardt testified that, at the time of Plaintiff’s surgery, he was

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unaware of any other knee replacement system with a higher rate of success than the Product.

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(Id. 10:20–25). In addition, Dr. Eckardt’s notes reflect that he discussed “risk[s] of surgery”

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with Plaintiff, including possible “failure of the prosthetic mechanism.” (Ex. 5 to Def.’s MSJ at

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Defendants seek summary judgment on Plaintiff’s failure-to-warn claim “[w]hether framed as negligence or
strict liability.” (Def.’s MSJ 8:3). However, Plaintiff asserts failure to warn only under a theory of strict liability.
(See Am. Compl. ¶ 27). Because “[f]ailure to warn in strict liability differs markedly from failure to warn in the
negligence context,” the Court confines its discussion of this claim to strict liability. Carlin v. Superior Court,
920 P.2d 1347, 1351 (Cal. 1996).
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2, ECF No. 37-5). Finally, Defendant’s Rule 30(b)(6) representative, Daniel Librot, testified

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that the surgeon, not the device manufacturer, makes the final determination regarding patient

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selection for the Product. (Librot Dep. 6:13–14, Ex. 5 to Pl.’s MSJ, ECF No. 38-5).

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The evidence before the Court demonstrates that Defendant provided warnings to Dr.

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Eckardt regarding the danger of implanting the Product in an overweight patient, and that Dr.

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Eckardt decided to proceed despite the risks. California law does not impose an additional duty

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on a device manufacturer to second guess a practicing physician when that physician has

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already received the necessary warnings. See Wendell v. Johnson & Johnson, C 09-04124 CW,

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2012 WL 3042302 (N.D. Cal. July 25, 2012) (“A manufacturer . . . discharges its duty to warn

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if it provides an adequate warning to the physician about any known or reasonably knowable

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dangerous side effects of a medicine, regardless of whether the warning reaches the patient.”)

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(citing Carlin, 920 P.2d at 1360–61). Further, Plaintiff does not allege that the warnings

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included with the Product were inadequate. And, given that Dr. Eckardt would have proceeded

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with the surgery despite the specific warnings, Plaintiff cannot establish causation. See, e.g.,

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Motus, 196 F. Supp. 2d at 991 (“A plaintiff asserting causes of action based on a failure to warn

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must prove not only that no warning was provided or the warning was inadequate, but also that

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the inadequacy or absence of the warning caused the plaintiff’s injury.”). Accordingly, the

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Court grants Defendant’s Motion for Summary Judgment with regard to the failure to warn.

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B.

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Plaintiff asserts a claim for negligence against Defendant for “negligently and carelessly

Negligence

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designing, manufacturing, testing, researching, assembling, producing, labeling, selling and

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distributing a defective product.” (Am. Compl. ¶ 14, ECF No. 14). Although Defendant’s

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Motion purports to seek summary judgment on this claim, Defendant provides no argument on

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this point. Instead, Defendant improperly conflates Plaintiff’s negligence claim with Plaintiff’s

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failure-to-warn claim. (See Def.’s MSJ 7:1–10:8) (“Whether framed as negligence or strict

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liability, [Plaintiff’s] failure-to-warn claims fail as a matter of law[.]”). As a result, summary

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judgment on this claim is denied. See L.R. 7-2(d) (“The failure of a moving party to file points

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and authorities in support of the motion constitutes a consent to the denial of the motion.”).
Strict Liability – Design Defect and Manufacturing Defect

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C.

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The Nevada Supreme Court has extended an action for strict liability in tort to all

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products. See Ginnis v. Mapes Hotel Corp., 470 P.2d 135, 138 (Nev. 1970). A strict products

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liability action requires a plaintiff to establish: (1) defendant placed a defective product on the

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market; (2) the defect caused plaintiff’s injury; and (3) the defect existed when the product left

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the hands of defendant. See Allison v. Merck & Co., 878 P.2d 948, 952 (Nev. 1994). A product

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is defective when it is “dangerous because [it] fail[s] to perform in the manner reasonably

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expected in light of [its] nature and intended function.” Id.; see also Phillips v. C.R. Bard, Inc.,

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No. 3:12-cv-00344-RCJ, 2014 WL 7177256, at *8 (D. Nev. Dec. 16, 2014) (“[T]he Allison

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opinion makes clear that the Nevada Supreme Court does not particularly care whether [a

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defect] is characterized as a manufacturing defect or a design defect.”). The defect must also

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be “unreasonably dangerous.” See Lewis v. Sea Ray Boats, Inc., 65 P.3d 245, 249 (Nev. 2003).

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“In strict product liability cases, the plaintiff carries both the burden of production and

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the burden of persuasion.” Id. To prove proximate cause in a strict products liability action in

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Nevada, “the plaintiff must show that the design defect in the product was a substantial factor

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in causing his injury.” Price v. Blaine Kern Artista, Inc., 893 P.2d 367, 370 (Nev. 1995). “A

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plaintiff need not ‘produce direct evidence of a specific product defect [or] negate any

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alternative causes of the accident.’” Primiano v. Cook, 598 F.3d 558, 563 (9th Cir. 2010)

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(citing Stackiewicz v. Nissan Motor Corp., 686 P.2d 925, 927 (Nev. 1984)). “An ‘unexpected,

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dangerous malfunction’ suffices.” Id. (citing Stackiewicz, 686 P.2d at 928).

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In the present case, therefore, Plaintiff may establish a defect by proving that the failure

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of the Product caused his harm.3 See Allison, 878 P.2d at 952 (“[P]roducts are defective which

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are dangerous because they fail to perform in the manner reasonably to be expected in light of

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their nature and intended function.”). Plaintiff’s biomechanical engineering experts, Dr. Mari

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Truman (“Dr. Truman”) and Dr. Robert Chasnov (“Dr. Chasnov”), both concluded that the

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Product suffered from both manufacturing and design defects. Dr. Truman stated in her report

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that the “manufacturing” of the Product was “sub-optimal.” (Ex. 5 to Pl.’s Resp. at 41, ECF No.

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40-5). According to Dr. Truman, “under repetitive loading[,] multiple cracks initiated” in the

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Product and “propagated upon further cycling loading.” (Id.). Dr. Truman determined the

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Product was “defective due to these deficiencies,” which “caused . . . the premature failure” of

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the Product. (Id.). Likewise, Dr. Chasnov concluded that “the femoral component of the

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[Product] was defective because it was simply cast without additional processing” resulting in

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“fairly-large grained, brittle implant which was highly susceptible to fatigue crack growth.”

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(Ex. 6 to Pl.’s Resp. at 8, ECF No. 40-6).
In contrast, Defendant’s metallurgical engineering expert, David A. Moore (“Moore”),

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noted that his “investigation into the fracture and metallurgical characteristics of the [Product’s]

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femoral component show that it was sound, high quality, and met . . . standard requirements.”

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(Ex. 17 to Def.’s MSJ at 29, ECF No. 37-17). Moore further concluded that the “fatigue

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fractures were not caused by any porosity, casting defects, brittleness, or distal augmentation

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holes[.]” (Id.). In addition, Defendant’s medical expert, Dr. Earl W. Brien, an orthopedic

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Causation can be proved in Nevada under a but-for theory or under a “substantial factor” theory. See Wyeth v.
Rowett, 244 P.3d 765, 778 (Nev. 2010). The Nevada Supreme Court has explained that:
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A but-for causation instruction applies when each party argued its own theory of causation, the
two theories were presented as mutually exclusive, and the cause of the plaintiff’s injuries could
only be the result of one of those theories, but not both. Johnson v. Egtedar, 112 Nev. 428, 436,
915 P.2d 271, 276 (1996). A substantial-factor causation instruction is appropriate when “an
injury may have had two causes, either of which, operating alone, would have been sufficient to
cause the injury.” Id. at 435, 915 P.2d at 275–76.

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Id.

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surgeon, opined in his report that “the combination of [Plaintiff’s] weight, the stress placed on

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the implant related to [Plaintiff’s] age and job and the fact that he was moving luggage at the

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time of the implant fracture . . . was the etiology to the implant fracture.” (Ex. 19 to Def.’s MSJ

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at 10, ECF No. 37-19).

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In light of the contradictory evidence submitted by the parties, the Court finds that a

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genuine issue of material fact remains regarding whether a defect in the Product caused

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Plaintiff’s injury. Even if Plaintiff were to admit, as Defendant argues, that Plaintiff’s weight

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and occupational activities weakened the Product, a jury could still find that poor design was a

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substantial factor in causing Plaintiff’s injury. The Court therefore cannot find at this stage that

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the substantial factor theory will not be supported by the trial evidence, even assuming

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Defendant could prove that other factors weakened the Product, which is disputed. At this

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stage, the evidence would appear to support alternative causation instructions under either

13

theory. Accordingly, the Court denies summary judgment on Plaintiff’s defect claims.

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D.

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“Under Nevada law, only sellers of products can provide express and implied

Breach of Express Warranty

16

warranties.” Baymiller v. Ranbaxy Pharm., Inc., 894 F. Supp. 2d 1302, 1310 (D. Nev. 2012).

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“Express warranties by the seller are created [by] . . . [a]ny affirmation of fact or promise . . .

18

which relates to the goods and becomes part of the basis of the bargain.” Allied Fid. Ins. Co. v.

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Pico, 656 P.2d 849, 850 (Nev. 1983); see also Nev. Rev. Stat. § 104.2313. Defendant argues

20

that “there is no evidence that [it] made ‘an affirmation of fact or promise’ to [Plaintiff]” as

21

required by Nevada Revised Statutes § 104.2313. (Def.’s MSJ 15:2–3). Plaintiff does not

22

address Defendant’s argument in his response. In light of the absence of any evidence of an

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affirmation or a promise that could have formed a basis for the bargain, the Court grants

24

summary judgment on Plaintiff’s claim for breach of express warranty.

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1

E.

2

In Nevada, there are two types of implied warranties: (1) warranty of fitness for a

3

particular purpose; and (2) warranty of merchantability. Long v. Flanigan Warehouse Co., 382

4

P.2d 399, 402 (Nev. 1963). For either claim of implied warranty, Nevada case law requires

5

contractual privity between the buyer and seller. Id. at 402–03 (“[S]ome recent decisions have

6

declared that lack of privity is not a defense to a claim based upon breach of implied warranty

7

. . . . We decline to follow their reasoning.”). Defendant argues that summary judgment on this

8

claim because no contractual privity exists between Plaintiff and Defendant. (Def.’s MSJ at

9

15:8–19). As with Plaintiff’s breach of express warranty claim, Plaintiff failed to respond to

Breach of Implied Warranty

10

Defendant’s argument on this point or present any evidence demonstrating privity.

11

Accordingly, the Court grants Defendant’s Motion with respect to this claim.

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III.

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CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment, (ECF No.

38), is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment, (ECF

16

No. 37), is GRANTED in part and DENIED in part. Plaintiff’s claims for failure to warn,

17

breach of express warranty, and breach of implied warranties are DISMISSED. Plaintiff’s

18

remaining claims for negligence, strict liability design defect, and strict liability manufacturing

19

defect survive.

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12
DATED this _____ day of September, 2016.

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___________________________________

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Gloria M. Navarro, Chief Judge
United States District Judge
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