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Poore-Rando v. United States

United States District Court, W.D. Washington, Tacoma

September 7, 2017

SAMANTHA POORE-RANDO, et al., Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants.



         This 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.

         I. BACKGROUND

         Plaintiff 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.

         On July 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.


         A. Summary Judgment Standard

         Summary 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. 1987).

         The 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).

         B. WPLA

         Ethicon 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:

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.

         A 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 ...

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