Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC333144 Jacqueline A. Connor, Judge.
Shook Hardy & Bacon and Gabriel S. Spooner for Plaintiffs and Appellants.
Wasserman, Comden, Casselman and Esensten, Mark S. Gottlieb, Leonard Comden; and Michael D. Moeller for Defendants and Respondents.
ALDRICH, J.
INTRODUCTION
Plaintiffs Elisabeth and Marc Courtenay (together Courtenay) brought the instant action under the theories of products liability for failure to warn and unfair business practice (Bus. & Prof. Code, § 17200 et seq. (the UCL)) against, among others, defendants Tyco Healthcare Group, LLP, United States Surgical Corporation and USS Womens Health Care (together Tyco), manufacturers of the IVS Tunneller, a gynecological device. Courtenay appeals from the judgment ordered after the trial court granted summary adjudication of these two causes of action. Because Courtenay demonstrated no dispute of material fact, we affirm the judgment.
In addition to the Tyco defendants, Courtenay sued Jennifer L. Berman, M.D., Debra Wickman, M.D., Regents of the University of California, and A. Chuck Cornish.
FACTUAL AND PROCEDURAL BACKGROUND
1. Background
Courtenay underwent gynecologic nonreconstructive surgery at the UCLA Medical Center on May 14, 2004. The surgery was designed to address her condition of stress urinary incontinence, bladder hernia (cystocele), posterior vaginal wall hernia with involvement of the anterior wall of the rectum (rectocele), and uterine/vault prolapse (vaginal looseness and collapse). Dr. Jennifer L. Berman performed the surgery using an IVS Tunneller device made by Tyco, a medical device manufacturer.
2. The IVS Tunneller
The FDA cleared the IVS Tunneller for marketing in April 2001. The IVS Tunneller is a disposable, single use, surgical tool comprised of a stainless steel introducer, plastic-tipped blunt stylette, and strip of non-absorbable mesh used to treat vaginal vault prolapse. Vault prolapse occurs where the ligaments that support the top of the vagina become lax and weak and the vagina falls like an accordion. The IVS Tunneller device inserts the mesh to suspend the top of the vagina.
3. Courtenay’s injuries
Following the surgery, Courtenay suffers neurological injury and stabbing post-operative pain to the lower half of her anatomy, front and back, specifically related to the pudendal, inguinal, femoral, and sciatic nerves. Courtenay testified that she has pain in her buttocks and up her rectum during bowel movements, and she suffers from urinary and bowel incontinence. She experiences vaginal pain, and shooting nerve sensations from her cervix to the base of her spine. She has stabbing, shooting, pulling pain when she lies down.
In October 2004, Courtenay went to Dr. Donald R. Ostergard, a physician and surgeon who specializes in female urology, general gynecology, and pelvic reconstructive surgery. Dr. Ostergard performed surgery on Courtenay at Long Beach Memorial Medical Center to remove the IVS Tunneller and perform a dilation and curettage. Upon removal of the mesh, Dr. Ostergard found a “dense area of scar tissue on the left side.” “With final removal of the mesh on the left side, Ms. Courtenay reported that she felt an instant release of pressure. No visual or verbal cue had been given by the surgeons that the left side of the graft had been removed. The right side of the graft was then easily dissected and removed.”
Courtenay brought the instant lawsuit.
4. Complaint
Of the 13 causes of action in Courtenay’s operative complaint, the 10th alleging products liability, and the 12th alleging violation of the UCL, are relevant to this appeal. The products liability cause of action was based on a design and manufacture defect and a lack of warning. On appeal, Courtenay pursues the failure to warn aspect of her products liability case only and so we describe her complaint’s allegations with reference to that basis only. In her 10th cause of action, Courtenay alleged that Tyco knew that the IVS Tunneller designed, manufactured, assembled, and distributed by Tyco was defective and dangerous and knew that because of the defects, the IVS Tunneller could not be used safely for the purposes for which it was intended. Knowing that the product was defective and dangerous, she alleged, Tyco placed the IVS Tunneller on the market without warning consumers, physicians, patients or the public of the defects. As the result of the use of the IVS Tunneller, Courtenay alleged she suffered tissue, organ, and nerve injuries, emotional distress, and loss of past and future economic damages.
In her brief on appeal, Courtenay explains that she was never aware of any manufacturing defects, and she acknowledged that California law immunizes medical device manufacturer from design defect claims. Accordingly, Courtenay asserts that her appeal addresses only the warning defect in her products liability cause of action.
As for the UCL cause of action, Courtenay alleged Tyco had a policy and practice of (1) providing financial and other incentives to promote the product, and to (2) encourage the unauthorized and unconsented use of the product by physicians and hospitals. Additionally, Courtenay alleged that Tyco (3) permitted and encouraged Tyco employees and representatives to be present in the operating rooms (ORs) of patients during medical procedures without the patients’ consent; and (4) conspired with and encouraged physicians to perform the unauthorized and unnecessary surgical procedures involving the IVS Tunneller. Such conduct amounted to an unfair, unlawful, and fraudulent business practice in furtherance of a conspiracy to deceive the public and cause the public to suffer injury in the future, Courtenay alleged.
Tyco answered by generally denying the allegations of the complaint and setting forth 39 affirmative defenses, including numerous defenses concerning damages.
5. Motion for summary judgment
Tyco moved for summary judgment on the ground, with respect to the products liability cause of action, that Tyco had no duty to warn, and no matter how inadequate the warning, Courtenay lacked evidence to establish a causal link between her injuries and Tyco’s warning about the IVS Tunneller device.
In support of its motion, Tyco cited the depositions of Courtenay, Dr. Berman, and Courtenay’s treating neurosurgeon, Dr. Aaron Filler, all authenticated by the declaration of Thomas A. Woods. Dr. Filler conducted an office visit and physical examination, took a history, and CT scan of Courtenay. He testified that he wanted to conduct more tests because he could not state to a reasonable medical probability what the cause was of Courtenay’s complaint. Dr. Filler found “very little... on the exam to identify the source” of Courtenay’s pain. In particular, he testified that he found it difficult to imagine statistically hitting six different nerves during this operation. He could not produce findings consistent with Courtenay’s pain and could not find the source of Courtenay’s sciatic pain.
Dr. Berman testified about the potential complications of the surgical procedure Courtenay underwent. Such complications would include injury to the vagina, bladder and bowel. Occasionally, there is postoperative urinary retention, bleeding, or infection. There is potential for injury to the bowel, the rectum, narrowing and shortening of the vagina, postoperative pain, infection, abscess, drainage, some vaginal pain with intercourse. The risks and complications of using the IVS Tunneller were similar to those in other surgeries where mesh is implanted by way of an introducer, such as the Raz Needle, which is also used for a vault suspension. Other complications included stabbing the patient, erosion or failure of the mesh, or affixing the mesh too loosely or too tightly. Dr. Berman testified she was very “familiar with the complications of mesh in the vagina... [and] of the damage or injuries that [she] could do with this instrument.”
Dr. Filler testified that he did not need to be a gynecologist, or to have witnessed a surgery such as the one Courtenay experienced to know that Courtenay’s complaints could possibly be related to gynecologic procedure like the one Courtenay underwent.
Courtenay opposed summary judgment by clarifying that the theory of her products liability cause of action was that Tyco failed to warn about the fact that the IVS Tunneller is an experimental device. Any warning Tyco made was inadequate as it lacked a clear statement about the unknown nature and extent of cure or adverse effects.
In support, Courtenay cited Dr. Ostergard’s declaration in which he explained he had reviewed the medical literature and concluded that currently no evidence-based medicine exists to justify the use of the posterior intravaginal slingplasty tunneler device utilizing polypropylene mesh (the IVS Tunneller) and thus, such a device “as a surgical procedure is experimental.” Dr. Ostergard declared that Tyco disregarded the limits of its knowledge and on what it could claim for this product, and misrepresented the device as FDA approved, when the device was clearly experimental at the time the surgery was performed in 2004.
Courtenay also cited Dr. Berman’s deposition testimony that she was told of the potential complications of the surgical procedure using an IVS Tunneller, but not of the potential complications of the IVS Tunneller product itself.
The trial court granted summary adjudication of the products liability cause of action based on failure to warn. Among the reasons for its ruling, the court explained, citing Dr. Berman’s and Dr. Filler’s deposition testimony, ~(CT 2025 pr 1 citing d's fax 46 woods decl ex I pp 35, 43;)~ that Courtenay presented no evidence that the IVS Tunneller device was a proximate cause of her injuries. The court found no evidence to raise a triable issue of material fact that the IVS Tunneller caused plaintiff’s injuries.
Tyco moved for summary judgment of Courtenay’s UCL cause of action on the dual grounds it conflicts with federal law and there was insufficient evidence that Tyco was involved in any alleged unlawful conduct.
The court ruled, with respect to Courtenay’s UCL cause of action, that Courtenay had no standing under Proposition 64 (Bus. & Prof. Code, § 17204) because she did not suffer an injury in fact from the IVS Tunneller itself.
After the summary adjudication, Courtenay moved to dismiss all defendants other than Tyco (see fn. 1, ante), and all of the remaining causes of action that had not been summarily adjudicated in favor of Tyco. Upon the parties’ stipulation, the trial court ordered the entire case dismissed. Courtenay timely appealed.
CONTENTIONS
Courtenay contends the trial court erred in granting summary adjudication of her products liability-failure to warn and UCL causes of action.
DISCUSSION
1. Standard of review
“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Summary judgment is granted when a moving party establishes the absence of a triable issue of material fact and the right to entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
A defendant moving for summary judgment meets its burden of showing there is no merit to a cause of action if that party shows that one or more elements of the cause of action cannot be established or there is a complete defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853.) “The defendant ‘must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial.’ [Citation.]” (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376.)
Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) To meet that burden, the plaintiff “ ‘ “shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action....” ’ [Citations.] Where the plaintiff fails to satisfy this burden, judgment in favor of the defendant shall be granted as a matter of law. [Citation.]” (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014; accord, Salazar v. Southern Cal. Gas Co., supra, 54 Cal.App.4th at p. 1376.)
On appeal from a summary judgment, we make “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223.) We “review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We construe the moving party’s affidavits and declaration strictly, and the opposing party’s evidence liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it. (Castillo v. Express Escrow Co. (2007) 146 Cal.App.4th 1301, 1306.)
2. The trial court did not err in granting summary adjudication of the products liability cause of action based on a failure to warn.
The rules of products liability based on a failure to warn require a plaintiff to prove that a manufacturer of a prescription medical implant device did not adequately warn of the known or reasonably scientifically knowable dangerous propensities of the product at the time they manufactured and distributed it. (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1108; Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002-1003; Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 361.) The knowledge is based on the “prevailing best scientific and medical knowledge available at the time of manufacture and distribution.” (Anderson v. Owens-Corning Fiberglas Corp., supra, at p. 1002, fn. omitted.)
The duty of a manufacturer to warn runs to the physician not to the patient (Carlin v. Superior Court, supra, 13 Cal.4th at p. 1116) in the case of prescription implanted medical devices. (Plenger v. Alza Corp., supra, 11 Cal.App.4th at p. 361; see also Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 21, fn. 4.)
The plaintiff also must be able to show a causal link between the failure to warn and the injury. (See CACI No. 1205.) “To be liable in California, even under a strict liability theory, the plaintiff must prove that the defendant’s failure to warn was a substantial factor in causing his or her injury. [Citation.] The natural corollary to this requirement is that a defendant is not liable to a plaintiff if the injury would have occurred even if the defendant had issued adequate warnings. [Citation.]” (Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1604.)
“[T]he plaintiff must, in accordance with traditional tort principles, demonstrate to a reasonable medical probability that a product or products supplied by the defendant, to which he became exposed, were a substantial factor in causing his disease or risk of injuries....” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 958.) If the risk is universally known in the medical profession, however, the failure to warn the physician of that risk cannot be the legal cause of the plaintiff’s injury. (Plenger v. Alza Corp., supra, 11 Cal.App.4th 349, 362.) “[N]o harm could have been caused by failure to warn of a risk already known. [Citation.]” (Rosburg v. Minnesota Mining & Mfg. Co. (1986) 181 Cal.App.3d 726, 735.)
On appeal, Courtenay contends that the summary adjudication of her products liability cause of action must be reversed for two reasons. First, Tyco failed to satisfy its threshold burden to show that it warned Dr. Berman and second, Courtenay raised a triable issue of fact about the warning.
Regardless of whether Courtenay demonstrated a triable issue of fact concerning Tyco’s duty to warn about the experimental nature of the IVS Tunneller device and whether Tyco did properly warn Dr. Berman, we agree with the trial court that summary adjudication of this cause of action was warranted. Courtenay could not demonstrate another element of her products liability cause of action based on failure to warn, namely that “to a reasonable medical probability” the IVS Tunneller was a substantial factor in causing her injuries. (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at pp. 957-958.) “[S]ummary judgment may be appropriate even if there are disputed factual issues; if the defendant’s showing negates an essential element of the plaintiff’s case, no amount of factual conflict upon other aspects of the case will preclude summary judgment. [Citations.]” (Shively v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627.)
On the issue of the damages in Courtenay’s products liability cause of action, Tyco demonstrated that Courtenay’s own witness, Dr. Filler, could not state to a reasonable medical probability what caused Courtenay’s injuries. By comparison, Dr. Filler explained that Courtenay’s pain could be related to the gynecologic procedure as opposed to the IVS Tunneller device inserted during the procedure. Therefore, regardless of whether Tyco fulfilled an obligation to warn Dr. Berman that the IVS Tunneller was experimental, Tyco demonstrated that Courtenay is unable to establish a triable issue that the failure to warn Dr. Berman of the experimental nature of the IVS Tunneller was a substantial factor in her injury. (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.)
Courtenay’s obligation in opposing summary judgment was to demonstrate a dispute of at least one material fact. In her opposing papers, Courtenay presented no dispute as to the relevant facts about her injuries and their cause. She submitted evidentiary objections. As best we can determine from the record, the trial court overruled those objections. Courtenay’s brief on appeal does not present argument to challenge these evidentiary rulings. Accordingly, she has forfeited that contention on appeal. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [contentions forfeited on appeal when not raised and supported with reasoned argument and citations to authority].) Necessarily, all of the evidence upon which Tyco relied in proffering the undisputed facts just described was admissible. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534 [where trial court fails to rule on evidentiary objections, objections are presumptively overruled].) Where the only dispute raised is an evidentiary objection that is presumptively overruled, the asserted fact remains undisputed.
Courtenay also observed that Dr. Filler requested additional testing. While that statement indicates that Dr. Filler’s examination is ongoing and he may yet find a cause of Courtenay’s pain that he would be able to link to the IVS Tunneller, Courtenay did not request a continuance of the summary judgment motion to allow Dr. Filler to complete that testing. (Code Civ. Proc., § 437c, subd. (h).)
Next, Courtenay filed undisputed facts supported by her own declaration and that of Dr. Ostergard. Of relevance to the issues of causation and damages, Courtenay asserted that she was never told that Dr. Berman had performed procedures using the IVS Tunneller only twice before, that a synthetic mesh would be implanted in her body permanently, or of possible nerve damages or risks or complications associated with the IVS Tunneller procedures and product. Had she been so told, Courtenay declared, she would never have agreed to the surgery. However, it is irrelevant to our analysis in this appeal involving Tyco, what Dr. Berman warned Courtenay because, as explained, the manufacturer’s duty to warn runs to the physician not to the patient. (Carlin v. Superior Court, supra, 13 Cal.4th at p. 1116.) Otherwise, she stated in her surreply that she did not possess medical expertise about the source of her injuries. Thus, in opposing summary judgment, Courtenay was unable to present evidence that would make the causal connection demonstrate a causal link between the failure to warn and the injury. (See CACI No. 1205.) The trial court properly granted summary adjudication of this cause of action.
3. The trial court did not err in granting summary adjudication of the UCL cause of action.
The UCL was enacted to protect consumers and competitors from unlawful, unfair, or fraudulent business acts or practices. The UCL accomplished this goal by promoting fair competition in commercial markets for goods and services. (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949.)
“The UCL defines ‘unfair competition’ as any ‘unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising....’ [Citation.] It borrows standards of conduct from other statutes, and a plaintiff need only show the violation of any law. [Citation.] Another statute specifically makes unlawful advertising services by ‘untrue or misleading’ statements. [Citation.]” (Brockey v. Moore (2003) 107 Cal.App.4th 86, 98.)
“An ‘unlawful’ business activity [under the UCL] includes ‘ “anything that can properly be called a business practice and that at the same time is forbidden by law.” [Citation.]’ [Citation.] Virtually any law -- federal, state or local -- can serve as a predicate for an action under Business and Professions Code section 17200. [Citation.]” (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 717-718.)
In her 12th cause of action under the UCL, Courtenay alleged that Tyco (1) had a policy and practice of providing financial and other incentives to promote the IVS Tunneller; (2) a policy and practice of encouraging the unauthorized and unconsented use of the product by physicians and hospitals; (3) conspired with and encouraged physicians to perform the unauthorized and unnecessary surgical procedures involving the IVS Tunneller without patients’ consent; and (4) encouraged its employees and representatives to be present in the ORs during medical procedures without the patients’ consent. Such conduct, Courtenay alleged amounted to an unfair and unlawful business practice in furtherance of a conspiracy to deceive the public and cause injury.
In moving for summary judgment of the UCL cause of action, Tyco asserted that Courtenay lacked evidence to prove her allegations.
The trial court summarily adjudicated the UCL cause of action on the ground that Courtenay did not have standing under Proposition 64, now Business and Professions Code section 17204, because she was not injured by the IVS Tunneller.
On appeal, Courtenay contends that the trial court denied her due process by granting summary adjudication on a ground not raised in the moving papers. We disagree. Concededly, lack of standing was not a ground raised by Tyco in its moving papers. However, standing is a jurisdictional question, which issue may be raised at any time in the proceeding, including on appeal. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361, citing Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438.) Furthermore, Courtenay has briefed and argued the question on appeal. Therefore, she has not been deprived of due process.
Analyzing whether Courtenay has standing, Business and Professions Code section 17204 establishes the standing requirements for an action under the UCL. That section provides that an individual may pursue such an action only if he or she has “suffered injury in fact and has lost money or property as a result of the unfair competition.” Also, under section 17203 of the Business and Professions Code, anyone who engages in unfair competition may be enjoined by any court of competent jurisdiction. The UCL also provides that the court may order a party who has engaged in unfair competition to “restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.” (Ibid.; see Citizens of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal.App.4th 1, 22 (Citizens).) Restitution under the UCL is not the recovery of compensatory damages, but a form of equitable relief. (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173-178.)
“[A]n individual who has not lost ‘money or property’ of the type that would be subject to a restitution order under Business and Professions Code section 17203 [has not] ‘lost money or property’ of the type that would confer standing under Business and Professions Code section 17204.” (Citizens, supra, 171 Cal.App.4th at p. 22.)
On appeal, Courtenay argues that she did raise a triable issue of fact that she was injured. Indisputably she did. However, Courtenay has only demonstrated personal injury damages. Such damages are not recoverable under the UCL. “A UCL action is equitable in nature; damages cannot be recovered. [Citation.]... ‘[P]revailing plaintiffs are generally limited to injunctive relief and restitution.’ [Citation.]” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144, italics added.) Under the UCL, a claim for restitution seeks an order “compelling a UCL defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken, that is, to persons who had an ownership interest in the property or those claiming through that person.” (Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 126-127, fn. omitted.) While Courtenay prayed for restitution damages in the UCL cause of action, she has not demonstrated in what way she suffered restitutionary damages as the result of any violation of the UCL, or the “loss of money or property as a result of any unfair competition” sufficient to confer standing on her.
In Citizens, the plaintiff alleged harm to its goodwill. Another panel of this Court held that harm to good will is a claim for damages, which is not permitted under the UCL and so it was not a sufficient allegation to confer standing on Citizens. (Citizens, supra, 171 Cal.App.4th at p. 22.) We quoted from Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798 that “[b]ecause remedies for individuals under the [unfair competition law] are restricted to injunctive relief and restitution, the import of the [Business and Professions Code section 17204 loss of money or property] requirement is to limit standing to individuals who suffer losses of money or property that are eligible for restitution.” (Buckland v. Threshold Enterprises, Ltd., supra, at p. 817.) We held that where Citizens “could not allege having suffered losses which would entitle it to restitution, it has no standing to pursue a cause of action for unfair competition.” (Citizens, supra, at p. 22.)
Likewise, here, as explained supra, Courtenay cannot demonstrate a triable factual question she suffered injury in fact, i.e., that the IVS Tunneller device caused her injury. She cannot demonstrate that she suffered injury at all as the result of the IVS Tunneller, let alone losses of the kind that would entitle her to restitution. Therefore, she has no standing under Proposition 64 to pursue her UCL cause of action. (Citizens, supra, 171 Cal.App.4th at p. 22.)
4. Courtenay may not revive her 11th and 13th causes of action.
Courtenay argues that her 11th cause of action for negligent infliction of emotional distress remains a viable cause of action. Not so. She voluntarily dismissed that cause of action with prejudice. She also argues that the cause of action for loss of consortium remains viable if this court reverses the summary adjudication of the cause of action for products liability. We affirm the summary adjudication of the products liability cause of action, with the result the claim for damages for loss of consortium cannot be revived.
DISPOSITION
The judgment is affirmed. Each party to bear its own costs of appeal.
We concur: KLEIN, P. J.CROSKEY, J.