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Barrowman v. Wright Medical Technology Inc.

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

September 19, 2017

ALAN BARROWMAN, et al., Plaintiffs,
v.
WRIGHT MEDICAL TECHNOLOGY INC., et al., Defendants.

          ORDER DENYING MOTIONS

          JAMES L. ROBART UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before 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, [1] 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 remand.

         II. BACKGROUND

         On 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.[2] (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.)

         On 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.[3] (Not. of Rem. (Dkt. # 1)); see also 28 U.S.C. § 1332.

         Beginning 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.)

         Plaintiffs 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.)

         III. ANALYSIS

         A. Evidentiary Objections

         As a preliminary matter, Defendants object to three statements Plaintiffs' counsel, Aaron Bigby, makes in his first declaration.[4] (MTA Resp. (Dkt. #37) at 12.) The three statements are:

• “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).)

         Defendants 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.

         1. Personal Knowledge and Lay Witness Testimony

         Federal 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).

         Mr. 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.)

         However, 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 ...


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