Schoenborn et al v. Stryker Corporation et al
Filing
227
Order Denying Defendant's Motion to Certify 218 . Signed on 11/21/2011 by Chief Judge Ann L. Aiken. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ERIC J. SCHOENBORN and
SUZANNE G. SCHOENBORN,
Civ. No. 08-1419-AA
OPINION AND ORDER
Plaintiff,
v.
STRYKER CORPORATION, and
STRYKER SALES CORPORATION,
Michigan corporations,
Defendants.
AIKEN, Chief Judge:
Plaintiffs
filed
suit
alleging
products
liability
and
negligence after a medical device known as a "pain pump" was used
to administer local anesthetics into plaintiff Eric Schoenborn's
shoulder
joint
after
arthroscopic
surgery.
economic, non-economic, and punitive damages.
Plaintiffs
seek
Defendants Stryker
Corporation and Stryker Sales Corporation (collectively Stryker)
were the alleged manufacturer and distributer of the pain pump.
1
- OPINION AND ORDER
Stryker moved for summary judgment on plaintiffs'
claims,
arguing that it did not know and could not have known of any risk
associated
with
pain
pump
use
in
the
joint
space
prior
to
Schoenborn's surgery, and therefore it had no duty to warn of such
risk.
Stryker also argued that plaintiffs could not prove that its
alleged failure to warn of such risk caused Schoenborn's injuries,
and that plaintiffs are not entitled to seek punitive damages.
motion was denied.
The
Stryker now moves to certify the court's order
denying summary judgment pursuant to 28 U.S.C.
1292 (b).
§
This
motion is likewise denied.
DISCUSSION
Stryker contends
that
the
court's
order
denying
judgment is appropriate for interlocutory appeal.
summary
"A non-final
order may be certified for interlocutory appeal where it 'involves
a controlling question of law as to which there is substantial
ground for difference of opinion' and where 'an immediate appeal
from the order may materially advance the ultimate termination of
the litigation.'"
Reese v. BP Exploration (Alaska) Inc., 643 F. 3d
681, 687-88 (9th Cir. 2011)
(quoting 28 U.S.C.
§
1292(b)).
Stryker identifies several "controlling questions of law" that
it deems "outcome determinative," including;
the court's treatment
of a medical journal article and expert opinion that relies on it;
the standard for determining the relevance of evidence regarding
toxici ty;
2
the interpretation and application of Food and Drug
- OPINION AND ORDER
Administration regulations to the regulatory background of the
accused pain pump device; the determination of whether opinion
testimony is speculative; and finally, the determination of whether
the evidence supports punitive damages.
3.
Stryker's Mem. in Supp. at
Stryker further argues that the denial of summary judgment is
reviewed de novo as a matter of law and is proper for
§
1292(b)
certification.
I disagree.
Essentially,
Stryker argues that the journal
article, the physician's testimony, and the regulatory background
of its product do not and cannot establish that Stryker knew or
should have known of the alleged risk associated with its pain pump
device, and :hat the court erred in its application of law when
reviewing this evidence.
In other words, Stryker disagrees with
the court's application of law to the facts of this case and the
determination that questions of fact exist.
However, "[ilf the
Court were to accept [this] argument, any 'application of facts to
the law'
would then be subject to certification under Section
1292." Clanahan v. McFarland Unified Sch. Dist., 2007 WL 2428089,
*2 (E.D. Cal. Aug. 22, 2007); see also Ahrenholz v. Ed. Trustees
Univ. Ill., 219 F. 3d 674, 676 (7th Cir. 2000) ("Section 1292 (b) was
not
intended
to
make
denials
of
summary
judgment
routinely
appealable.").
Even accepting Stryker's argument that each of the identified
issues involves a "question of law" reviewed de novo on appeal, the
3
- OPINION AND ORDER
fact that a motion for summary judgment necessarily implies issues
of law does not render the denial of summary judgment appropriate
for interlocutory appeal.
As
aptly explained by the Seventh
Circuit:
Formally, an appeal from the grant or denial of summary
judgment presents a question of law (namely whether the
opponent of the motion has raised a genuine issue of
material fact), which if dispositive is controlling; and
often there is room for a difference of opinion. So it
might seem that the statutory criteria for an immediate
appeal would be satisfied in every case in which summary
judgment was denied on a nonobvious ground. But that
cannot be right.
Ahrenholz, 219 F.3d at 676.
Rather, a
~'question
of law' as used
in section 1292(b) has reference to a question of the meaning of a
statutory or constitutional provision, regulation, or common law
doctrine rather than to whether the party opposing summary judgment
had raised a genuine issue of material fact.".IJ;L.
Stated another
way:
The term ~question of law" does not mean the application
of settled law to fact. It does not mean any question the
decision of which requires rooting through the record in
search of the facts or of genuine issues of fact.
Instead, what the framers of § 1292(b) had in mind is
more of an abstract legal issue or what might be called
one of ~pure" law, matters the court of appeals ~can
decide quickly and cleanly without having to study the
record."
McFarlin v. Conseco Servs" 11C, 381 F.3d 1251, 1258 (11th Cir.
2004) (citations omitted; quoting Ahrenholz, 219 F.3d at 677).
review the
court's
order denying
summary
judgment,
the
To
Ninth
Circuit would be required to delve into the numerous factual issues
4
- OPINION AND ORDER
raised in this case and determine whether the court correctly
applied the relevant law in finding genuine issues of material
fact.
Such "rooting through the record" is not the purpose of
interlocutory certification under § 1292(b).
Further, Stryker's strong disagreement with the court's ruling
is insufficient to establish a substantial ground for difference of
611 F.3d 629,
opinion.
2010) .
633
(9th Cir.
Stryker identifies no "navel and difficult questions of
first impression" presented by the denial of its motion for summary
judgment.
Reese, 643 F.3d at 688 (quoting Couch, 611 F.3d at 633).
Rather, it simply disagrees with the court's application of the law
to the facts and the conclusion that genuine issues of material
fact preclude summary judgment in Stryker's favor. "That settled
law might be applied differently does not establish a substantial
ground for difference of opinion."
Couch, 611 F.3d at 633.
For
the same reason, the court's recognition of and disagreement with
ather district court opinions does not constitute a basis for
interlocutory certification.
Stryker nonetheless maintains that
the Ninth Circuit has
adopted a "flexible" approach to interlocutory certification and
does not interpret the "controlling question of law" requirement as
a "pure" issue of law.
unconvinced.
~
Reese, 643 F.3d at 688 n.5.
I remain
Even under a flexible approach, Stryker bears the
burden of persuading the court "'that exceptional circumstances
5
- OPINION AND ORDER
justify a departure from the basic policy of postponing appellate
review until after the entry of a final judgment.'"
Antitrust Litig.,
673 F.2d 1020, 1026
(9th Cir. 1982)
. Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978)).
(quoting
There may
well be a non-final summary judgment order involving issues of law
and fact that is appropriate for certification under
this order is not.
CONCLUSION
Stryker's Motion to Certify (doc. 218) is DENIED.
IT IS SO ORDERED.
DATED this
~1ray
of November, 2011.
Ann Aiken
United States District Judge
6
- OPINION AND ORDER
§
l292(b);
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?