United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTIONS
L. ROBART UNITED STATES DISTRICT JUDGE.
the court are Plaintiffs Alan Barrowman and Jessica
Robertson's (collectively, “Plaintiffs”)
motion for relief from the court's scheduling order and
for leave to amend the complaint (MTA (Dkt. # 34)) and a
motion to remand should the court grant leave to amend (MTR
(Dkt. # 36)). The court has considered the parties'
submissions in support of and in opposition to the motions,
the relevant portions of the record, and the applicable law.
Being fully advised,  the court denies Plaintiffs' motion
for relief from the court's scheduling order and for
leave to amend and denies as moot Plaintiffs' motion to
January 23, 2012, Dr. Solomon Wu performed multiple
outpatient surgical procedures on Ms. Robertson's right
foot, and on February 13, 2012, he performed the same
procedures on Mr. Barrowman's right foot. (Compl. (Dkt. #
1-1) ¶¶ 3.2, 3.4.) As part of the operation, Dr. Wu
implanted in each patient's right foot a Cancello-Pure
10x50 millimeter Wedge (“Wedge”), manufactured by
Defendant RTI Surgical, Inc. (“RTI”) and
distributed by Defendant Wright Medical Technology, Inc.
(“Wright”). (Id. ¶¶ 3.3, 3.5;
1st Bigby Decl. (Dkt. # 35) ¶ 1.) After the surgeries,
Plaintiffs continued to experience pain. (Compl. ¶¶
3.6, 3.8.) A different surgeon, Dr. Rodney Graves, later
removed the Wedge from Ms. Robertson's foot on March 1,
2013, and from Mr. Barrowman's foot on February 24, 2014.
(Id. ¶¶ 3.7, 3.9.)
January 23, 2015, Plaintiffs filed suit against Wright and
RTI (collectively, “Defendants”) in King County
Superior Court, asserting product liability claims. (See
generally Compl.) Specifically, Plaintiffs allege
multiple theories of product liability, including design
defect, failure to warn, manufacturing defect, and breach of
the implied warranties of fitness and merchantability.
(Id. ¶¶ 4.1-5.4.) Plaintiffs also allege
violations of Washington's Consumer Protection Act
(“CPA”), RCW 19.86. (Id. ¶¶
6.1-6.3.) On May 7, 2015, Defendants removed the action on
the basis of diversity jurisdiction. (Not. of Rem. (Dkt. # 1));
see also 28 U.S.C. § 1332.
in July 2014-before Plaintiffs brought this
suit-Plaintiffs' counsel investigated Dr. Wu's
potential liability for medical malpractice. (2d Bigby Decl.
(Dkt. # 41) ¶¶ 2-7.) In May 14, 2015, RTI asserted
an affirmative defense in its answer, alleging that Dr. Wu
caused or contributed to Plaintiffs' injuries. (RTI
Answer (Dkt. # 6) at 6.). And on May 3, 2017, Defendants
produced a report from their expert, Dr. Jeffrey C.
Christensen. (1st Bigby Decl. ¶ 6.) In his report, Dr.
Christensen concluded that Dr. Wu improperly performed the
Wedge implantation procedure. (Christensen Rep. at 11.)
now seek relief from the court's scheduling order to
amend their pleadings nearly two months after the applicable
deadline, which was May 3, 2017. (2/10/17 Order (Dkt. # 24)
at 4.) Specifically, they request leave to amend to add a
claim of medical malpractice against Dr. Wu. (MTA at 1; Prop.
Amend. Compl. (Dkt. # 34-1) ¶¶ 7.1-7.6.) Plaintiffs
contend that they could not have amended their complaint
earlier because they did not know about any alleged medical
malpractice on Dr. Wu's part. (MTA at 1.) Because adding
Dr. Wu-a Washington domiciliary-would deprive the court of
subject matter jurisdiction by destroying complete diversity,
Plaintiffs also seek a remand to state court if the court
grants their motion to amend. (MTR at 1.)
preliminary matter, Defendants object to three statements
Plaintiffs' counsel, Aaron Bigby, makes in his first
declaration. (MTA Resp. (Dkt. #37) at 12.) The three
• “Jessica Robertson underwent an Evans procedure,
a surgery used to correct foot and ankle deformities, with
Dr. Wu on January 23, 2012. Plaintiff Alan Barrowman
underwent an Evans procedure with Dr. Wu on February 13,
2012. Each Plaintiffs procedure involved implanting a
Cancello-Pure 10x50 mm Wedge. The Cancello-Pure Wedge is a
bone graft composed of cow bone, also known as a xenograft,
and shaped into a wedge form. Defendant RTI Surgical, Inc.
(hereinafter ‘RTI') manufactured the Wedge and
Defendant Wright Technology, Inc. (hereinafter
‘Wright') distributed the Wedge. Both Plaintiffs
received follow-up treatment from Dr. Wu.” (1st Bigby
Decl ¶ 1.)
• “In addition to both Plaintiffs, Dr. Wu had two
other patients who received a Cancello-Pure 10x50 Wedge
implant that subsequently failed to form a union.”
(Id. ¶ 2.)
• “Dr. Wu discussed the non-union event with [Mr.]
Barrowman and informed him that Wright was
‘investigating whether there [was] a change in their
processing regarding the batch of bone xenograft use [sic]
which may contribute to this delayed
union/nonunion.'” (Id. (second and third
alterations in original).)
object to Mr. Bigby's first and second statements as not
based on personal knowledge and as unqualified medical
testimony, and they object to the third statement as
inadmissible hearsay. (MTA Resp. at 12.) For the following
reasons, the court overrules Defendants' objections to
the first and third statements and sustains Defendants'
objection to the second statement. The objection to the
second statement does not, however, affect the court's
analysis of Plaintiffs' motions. See infra
§§ III.B.2, III.C.2.
Personal Knowledge and Lay Witness Testimony
Rule of Evidence 602 allows a witness to testify to a matter
only if “evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the
matter.” Fed.R.Evid. 602. Personal knowledge may be
inferred from the declaration itself based on the
declarant's role and participation in the matters
declared. See Barthelemy v. Air Lines Pilots
Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990).
Accordingly, personal knowledge “is not strictly
limited to activities in which the declarant has personally
participated [because] personal knowledge can come from
review of the contents of files and records.” Wash.
Cent. R.R. Co., Inc. v. Nat'l Mediation Bd., 830
F.Supp. 1343, 1353 (E.D. Wash. 1993) (citations omitted)
(finding personal knowledge sufficient when the declarant was
the official records custodian). From reviewing records,
“a declarant may testify to acts that she or he did not
personally observe but which are described in the
record.” Id. A declarant need not support
every factual statement with independent documentation, but a
court need not give “much weight” to unsupported
factual statements. State Farm Mut. Auto. Ins. Co. v.
Frounfelter, No. C16-5242BHS, 2017 WL 1048291, at *3
(W.D. Wash. Mar. 20, 2017) (citing Wash. Cent. R.R.
Co., 830 F.Supp. at 1355).
Bigby's role and participation in the litigation gives
him knowledge of some facts from reviewing records. See
Barthelemy, 897 F.2d at 1018. Yet, Plaintiffs must also
introduce evidence “sufficient to support a finding
that the witness has personal knowledge of the matter.”
Fed.R.Evid. 602. Regarding Mr. Bigby's first statement,
there is sufficient evidence showing his personal knowledge
of Plaintiffs' medical care based on his role in
reviewing documents for this case. (See 1st Bigby
Decl. ¶¶ 10-13, Exs. 2, 3, 4, 5; see also
Dorrity Decl. (Dkt. # 38) ¶ 3, Ex. A (“Graves
Dep.”) at 101:21-102:1.)
Mr. Bigby's role in the litigation does not provide
similar support for the second statement. Other than Mr.
Bigby's attestation, no document before the court
reflects the facts he recites in his second statement. Unlike
the declarant in Washington Central Railroad, Mr.
Bigby is not the custodian of the records he claims to have
reviewed, 830 F.Supp. at 1352-53, and he must do more than
assert a fact as true to show that he possesses personal
knowledge of that fact, see Fed. R. Evid. 602;
but see State Farm, 2017 WL 1048291, at *3 ...