United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Ethicon
Endo-Surgery, Inc.'s (“Ethicon”) motion for
summary judgment. Dkt. 44. The Court has considered the
pleadings filed in support of and in opposition to the motion
and the remainder of the file and hereby grants the motion in
part and denies it in part for the reasons stated herein.
Samantha Poore-Rando filed her complaint on February 6, 2016.
Dkt. 1. Plaintiff complains of complications, particularly an
anastomotic leak, arising from a medical procedure which
included the use of a surgical stapler manufactured by
Ethicon. Id. She brings claims against Ethicon
asserting (1) products liability pursuant to the Washington
Products Liability Act (“WPLA”), and (2) a
tortious violation of her right to privacy. Since the filing
of the complaint, all defendants except for Ethicon have been
dismissed. Dkts. 34, 43.
13, 2017, Ethicon moved for summary judgment. Dkt. 44. On
July 31, 2017, Plaintiff responded. Dkt. 48. On August 4,
2017, Ethicon replied. Dkt. 51.
Summary Judgment Standard
judgment is proper only if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). The moving party is entitled to judgment
as a matter of law when the nonmoving party fails to make a
sufficient showing on an essential element of a claim in the
case on which the nonmoving party has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
There is no genuine issue of fact for trial where the record,
taken as a whole, could not lead a rational trier of fact to
find for the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(nonmoving party must present specific, significant probative
evidence, not simply “some metaphysical doubt”).
See also Fed. R. Civ. P. 56(e). Conversely, a
genuine dispute over a material fact exists if there is
sufficient evidence supporting the claimed factual dispute,
requiring a judge or jury to resolve the differing versions
of the truth. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
determination of the existence of a material fact is often a
close question. The Court must consider the substantive
evidentiary burden that the nonmoving party must meet at
trial-e.g., a preponderance of the evidence in most civil
cases. Anderson, 477 U.S. at 254; T.W. Elec.
Serv., Inc., 809 F.2d at 630. The Court must resolve any
factual issues of controversy in favor of the nonmoving party
only when the facts specifically attested by that party
contradict facts specifically attested by the moving party.
The nonmoving party may not merely state that it will
discredit the moving party's evidence at trial, in the
hopes that evidence can be developed at trial to support the
claim. T.W. Elec. Serv., Inc., 809 F.2d at 630
(relying on Anderson, 477 U.S. at 255). Conclusory,
nonspecific statements in affidavits are not sufficient, and
missing facts will not be presumed. Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 888-89 (1990).
moves for summary judgment on Plaintiff's product
liability claims. In Washington, all common law negligence
claims premised on product liability have been preempted by
The WPLA is the exclusive remedy for product liability
claims. It supplants all common law claims or actions based
on harm caused by a product. Insofar as a negligence claim is
product-based, the negligence theory is subsumed under the
WPLA product liability claim.
Macias v. Saberhagen Holdings, Inc., 175 Wn.2d 402,
409 (2012) (citations omitted). The WPLA creates manufacturer
liability for harm resulting from design defects, RCW
7.72.030(1)(a); manufacturing defects, RCW 7.72.030(2); or
warning defects, RCW 7.72.030(1)(b)-(c). Plaintiff has
brought claims under each of these theories.
plaintiff may establish liability for a design or warning
defect by using either a risk-utility test or a consumer
expectation test. Ayers v. Johnson & Johnson Baby
Prods. Co., 117 Wn.2d 747, 759 (1991) (warning defect);
Falk v. Keene Corp., 113 Wn.2d 645, 651-52 (1989)
(design defect). A plaintiff can establish that a
manufacturer is liable for harm arising from a manufacturing
defect by showing (1) material deviations in a product's
construction or (2) a breach of an express or implied
warranty. RCW 7.72.030(2). However, regardless of the type of
defect alleged, a Plaintiff must show that the
manufacturer's product in some way proximately caused the
Plaintiff's harm. RCW 7.72.030(2)(1) (“A product
manufacturer is subject to liability to a claimant if the
claimant's harm was proximately caused by the
negligence of the manufacturer in that the product was not
reasonably safe as designed or not reasonably safe because
adequate warnings or instructions were not provided.”);
RCW 7.72.030(2) (“A product manufacturer is subject to
strict liability to ...