United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
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. 60. 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
for the reasons stated herein.
Samantha Poore-Rando filed her complaint on February 6, 2016.
Dkt. 1. Plaintiff complained of complications, particularly
an anastomotic leak, arising from a medical procedure which
included the use of a surgical stapler manufactured by
Ethicon. Id. Plaintiff's complaint included a
claim against Ethicon premised on product liability for an
alleged defect in the stapler. Additionally, Plaintiff
brought a claim against Ethicon asserting 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 on all of
Plaintiff's claims. Dkt. 44. On September 7, 2017, the
Court granted in part and denied in part the motion. Dkt. 55.
Specifically, the Court granted Ethicon's motion by
dismissing Plaintiff's product liability claim.
Id.; see also Dkt. 75. The Court denied
Ethicon's motion without prejudice in regard to
Plaintiff's claim for invasion of privacy. Dkt. 55.
September 28, 2017, Ethicon filed a renewed motion for
summary judgment on Plaintiff's claim for invasion of
privacy. Dkt. 60. On October 12, 2017, Plaintiff responded.
Dkt. 66. On October 20, 2017, Ethicon replied. Dkt. 73.
moves for summary judgment on Plaintiff's remaining claim
that Ethicon “violated plaintiff Samantha
Poore-Rando's rights to privacy and physician/patient
privilege by being present during the February 7, 2014
surgical procedure without plaintiff Samantha
Poore-Rando's knowledge, waiver of the physician/patient
privilege and/or consent.” Dkt. 1 at 8. 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.
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).
common law recognizes a “protectable interest in
privacy [that] is generally held to involve four distinct
types of invasion: intrusion, disclosure, false light and
appropriation.” Eastwood v. Cascade Broad.
Co., 106 Wn.2d 466, 469 (1986). As noted in the
Court's previous order, Plaintiff's claim that the
presence of an Ethicon sales person at her surgery violated
her right to privacy is a claim based on a theory of unlawful
the intrusion theory, “[o]ne who intentionally
intrudes, physically or otherwise, upon the solitude or
seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his
privacy, if the intrusion would be highly offensive to a
reasonable person. Mark v. Seattle Times, 96 Wn.2d
473, 497 (1981) (quoting Restatement (Second) of Torts §
652B (Am. Law Inst. 1977)). Washington courts have defined
such a claim to require that a plaintiff establish the
1. An intentional intrusion, physically or otherwise, upon
the solitude or seclusion of plaintiff, or his private
2. With respect to the matter or affair which plaintiff
claims was invaded, that plaintiff had a legitimate and
reasonable expectation of privacy;
3. The intrusion would be highly offensive to a reasonable
person; and 4. That the defendant's conduct was a