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Barrowman v. Wright Medical Technology, Inc.

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

October 30, 2017

ALAN BARROWMAN, et al., Plaintiffs,




         Before the court is Plaintiffs Alan Barrowman and Jessica Robertson's (collectively, "Plaintiffs") motion for reconsideration of the court's September 19, 2017, order. (Mot. (Dkt. # 44).) The court has considered the motion, the relevant portions of the record, and the applicable law. Being fully advised, [1]the court DENIES the motion for the reasons set forth below.


         The court extensively detailed the factual background of this case in its earlier order. (See 9/19/17 Order (Dkt. # 82) at 2-9.) Accordingly, the court limits its discussion here to those facts relevant to the issues Plaintiffs now raise.

         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.) During the operations, Dr. Wu implanted a Cancello-Pure 10x50 millimeter 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. ¶ 1.) A different surgeon, Dr. Rodney Graves, 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 and 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 2013-before Plaintiffs brought this suit-Plaintiffs' counsel investigated Dr. Wu's potential liability for medical malpractice. (1st Bigby Decl. ¶ 3; 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.). Dr. Aprajita Nakra, Plaintiffs' expert witness, reviewed Plaintiffs' medical files and opined that "[t]here is no evidence that Dr. Solomon Wu's surgical technique in either of the plaintiff's surgeries was a contributing factor to the graft nonunion, and "[t]he treatment received by both the plaintiffs has been appropriate, medically necessary[, ] and meets [the] standard of care." (1st Bigby Decl. ¶¶ 5, 11, Ex. 3 ("Nakra Rep.").) On May 3, 2017, Defendants produced a report from their expert, Dr. Jeffrey C. Christensen, in which Dr. Christensen concluded that Dr. Wu improperly performed the Wedge implantation procedure. (1st Bigby Decl. ¶ 6; Christensen Rep. at 11.)

         After receiving Dr. Christensen's reports, Plaintiffs sought relief from the court's scheduling order to amend their pleadings to add a claim of medical malpractice against Dr. Wu. (MTA (Dkt. # 34) at 1; Prop. Am. Compl. (Dkt. # 34-1) ¶¶ 7.1-7.6; 4/22/16 Order (Dkt. # 20) at 1 (setting the deadline for joining additional parties as October 30, 2015); 2/10/17 Order (Dkt. # 24) at 4 (setting the deadline for amending pleadings as May 3, 2017).) Plaintiffs contended that they could not have amended their complaint earlier because they did not know about any alleged medical malpractice on Dr. Wu's part until receiving Dr. Christensen's report on May 3, 2017. (MTA at 1.) Because adding Dr. Wu-a Washington domiciliary-would deprive the court of subject matter jurisdiction by destroying complete diversity, Plaintiffs also sought remand to state court if the court granted their motion to amend. (MTR (Dkt. # 36) at 1.)

         On September 19, 2017, the court denied Plaintiffs' motion to amend. (See 9/19/17 Order.) The court concluded that Plaintiffs failed to show good cause for not seeking to amend earlier and that even if they had, leave to amend would be futile. (Id. at 11-12, 14, 17.) The court also denied as moot Plaintiffs' motion to remand because without Dr. Wu's joinder, complete diversity remained intact. (Id. at 18.)

         Plaintiffs seek reconsideration of the court's order. (See Mot.) They argue that the court erred in finding no good cause to seek leave to amend and in denying leave to amend as futile. (Id. at 3-5.) If the court reconsiders and permits amendment, Plaintiffs also move to remand to state court. (Id. at 2.) The court now addresses the motion.

         III. ANALYSIS

         "Motions for reconsideration are disfavored, " and the court "will ordinarily deny such motions in the absence of a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to [the court's] attention earlier with reasonable diligence." Local Rules W.D. Wash. LCR 7(h)(1). The court finds that Plaintiffs fail to make the required showing of manifest error for the following reasons.

         A. ...

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