Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC320467, David L. Minning, Judge.
Girardi and Keese, John A. Girardi and John Courtney for Plaintiff and Appellant.
Reed Smith, Sonja S. Weissman, Raymond A. Cardozo, Jennifer L. Dodge and Zareh A. Jaltorossian for Defendants and Respondents Zimmer Holdings, Inc. and Zimmer, Inc.
Bonne, Bridges, Mueller, O’Keefe & Nichols, David J. O’Keefe, Mitzie L. Dobson and Vangi M. Johnson for Defendant and Respondent Lawrence B. Dorr.
ASHMANN-GERST, J.
This case involves two consolidated appeals. In the first appeal, appellant Valerie Knight (Knight) challenges the summary judgment entered in favor of respondent Dr. Lawrence Dorr. In the second appeal, Knight challenges the judgment on the pleadings obtained by respondents Zimmer Holdings, Inc. and Zimmer, Inc. (collectively Zimmer). Upon review, we find no error and affirm.
FACTS
Background
Knight had a Sulzer Inter-op acetabular shell (Sulzer shell) implanted in her left hip on March 8, 2000. After the Sulzer shell was recalled, Knight had it replaced with a reprocessed Sulzer Inter-op acetabular shell (reprocessed Sulzer shell). Subsequently, Knight became a non-opt out plaintiff in the class action In re Sulzer Orthopedics Inc. Hip Prothesis and Knee Prosthesis Products Liability Litigation case No. 1:01-CV-9000 in the United States District Court for the Northern District of Ohio, Eastern Division (class action).
Because Knight was experiencing pain, she went to see Dr. Dorr. On December 2, 2003, he explanted the reprocessed Sulzer shell and implanted a prosthesis designed by Zimmer (Zimmer shell). Following the surgery, Knight suffered significant loss of function.
This action
Knight sued, among others, Sulzer Orthopedics Inc., Zimmer and Dr. Dorr for fraud, products liability, breach of express and implied warranty and professional negligence.
The class action settlement
The class action was settled. It covered injuries and damages arising from the selection, use, implantation and explantation of new and reprocessed Sulzer Inter-op shells. On January 6, 2006, the judge in the class action signed an order permitting Knight to pursue her state claims against Dr. Dorr and Zimmer to the extent she sought damages caused by the Zimmer shell. The order specifically enjoined Knight from seeking to impose liability on anyone based on the selection, use or removal of the Sulzer shell or reprocessed Sulzer shell.
Knight’s third amended complaint
In the third amended complaint, Sulzer Orthopedics Inc. was dropped as a defendant. Knight alleged: The Zimmer shell was defective and caused her serious injury, including a fracture to her pelvis bone. When Dr. Dorr operated on Knight, he failed to meet the standard of care. His acts or omissions contributed to the fracture. Knight suffered pain and other injuries as a result.
Dr. Dorr’s motion for summary judgment
In his motion, Dr. Dorr argued that Knight was barred from seeking damages because her claims were settled in the class action. Additionally, Dr. Dorr argued that he complied with the standard of care.
Dr. Dorr declared that the fracture occurred while he was removing the reprocessed Sulzer shell. He affirmed that he met the standard of care. Dr. Wayne Paprosky declared, “The fracture of [Knight’s] acetabulum occurred during explantation of the [reprocessed Sulzer shell] to a reasonable medical probability.” According to Dr. Paprosky, Dr. Dorr’s “care and treatment of [Knight] at all times complied with the standard of care.”
In her opposition, Knight argued the operative report dated December 2, 2003 (operative report), created a triable issue as to whether the fracture occurred during the implantation of the Zimmer shell. Next, she claimed that there was a triable issue as to whether Dr. Dorr was negligent because he failed to obtain her informed consent before doing the procedure. In particular, she argued that she was never informed that fracture was a risk.
Knight attached the operative report to her papers. It averred: The reprocessed Sulzer shell was taken out. While trying to place a “51-mm acetabular shell,” Dr. Dorr concluded that it would have to be cemented. “After the cement had dried, Dr. Dorr himself checked the acetabular shell. At this time, he noted instability of the acetabulum and discovered that [it] had been fractured.” Dr. Dorr removed the “51-mm acetabular shell” and eventually implanted a “43 mm shell.” The operative report was prepared by Betram Fuller (Fuller) and signed by Dr. Dorr.
Next, Knight offered the deposition testimony of Richard Paul Cadarette (Cadarette), a witness to the procedure. He testified that when Dr. Dorr was “putting the insert into the shell” Dr. Dorr said he saw a fracture. Cadarette then saw Dr. Dorr remove “the shell.”
Finally, Knight argued and declared that she was never told that a pelvic fracture was a risk of the procedure.
When the trial court initially heard argument on the motion for summary judgment, it concluded that it could not make a ruling due to procedural deficiencies in the moving and opposing papers. It provided the parties with a written analysis indicating the following. Dr. Paprosky’s declaration was not signed under penalty of perjury pursuant to the laws of California and Knight did not authenticate any of her exhibits. If and when the operative report was authenticated, the trial court indicated its belief that “[t]he operative report, and to a less extent the testimony of Cadarette because it is somewhat ambiguous, would raise a triable issue of fact as to when the fracture occurred.” Next, the trial court pointed out that Knight did not submit an expert declaration to contradict the declarations of Dr. Dorr and Dr. Paprosky on the issue of negligence. The trial court noted that Knight was arguing lack of informed consent and stated: “[T]he problem with [Knight’s] position is that [it] appears that she never advanced a lack of informed consent claim until her opposition. If one looks at the... third amended complaint, it is clear that [Knight] pled that Dr. Dorr was negligent because his performance during the procedure was below the standard of care.” Because informed consent was not pleaded, the trial court said the issue did not have to be reached.
The ensuing minute order stated the trial court “requests supplemental briefs re: the issues outlined by the [trial court].”
On August 16, 2007, Dr. Dorr submitted a supplemental declaration in which he stated the following: “[T]he operative report prepared by [Fuller] and signed by me regarding [Knight’s]... surgery was a good general description of the surgery. At the time I signed the operative report, there was no necessity of describing exactly when the acetabulum fracture occurred. This is not something I would normally put in an operative report. The operative report does not state when the acetabulum fracture occurred. It does, however, comment on when we determined the acetabulum fracture was causing instability and pelvic discontinuity. [¶]... I knew that I had some fracture of the acetabulum bone before I attempted to place the Zimmer [shell] and lock the liner into place. When I took the [reprocessed Sulzer shell] out, I examined the acetabulum and found the fracture. I also noted on removal of the [reprocessed Sulzer shell that] there was bone on the back of [it] which established that there had been a fracture. The fracture that I observed following removal of the [reprocessed Sulzer shell] and before placement of the [Zimmer shell] went right through the middle of the acetabulum.... [¶]... I did not initially believe the fracture caused by bone removal attached to the [reprocessed Sulzer shell] would result in the level of instability I ultimately noted after I attempted to place the [Zimmer shell] and liner. I felt I could use screws to get a stable [shell]. Prior to placing the [Zimmer shell] and liner, I did not truly appreciate [that Knight] had a complete pelvic discontinuity.... [¶] I was aware as I was attempting to place the Zimmer liner that the [shell] was not fully stable because of the acetabulum fracture caused by bone removal of the [shell].”
Dr. Dorr went on to explain that “[t]he statement in the operative report that ‘he noted instability of the acetabulum and discovered that the acetabulum had been fractured’ is not inconsistent with the fact that the acetabulum fractured during the removal of the [reprocessed Sulzer shell]. This statement does not indicate when the acetabulum fracture occurred. We knew we had a fractured bone before attempting to place the [Zimmer shell] and liner.”
Further according to Dr. Dorr, Cadarette “was standing outside the sterile field during [Knight’s] surgery and, therefore, would have no way of knowing when the acetabulum fracture occurred.”
Fuller also submitted a declaration. He stated: “When Dr. Dorr removed the [reprocessed Sulzer shell], I noted there was bone attached to the shell. Because of this, I was aware the acetabulum had been fractured during the multiple attempts to remove the well-fixed [reprocessed Sulzer shell]. However, I also understood Dr. Dorr believed the pelvis was stable enough to place the [Zimmer shell] and liner because he then attempted to place the [Zimmer shell] and stabilize with screws. It is not my custom and practice to state in the operative report specifically when a fracture occurs under these circumstances.” Continuing on, Fuller declared: “After cementing the shell into place, Dr. Dorr checked the acetabular shell and determined it was unstable because of the acetabulum fracture. When I stated he ‘discovered that the acetabulum had been fractured,’ it was my intent to indicate that this was when he discovered the full extent of the acetabulum fracture and the fact that it was causing instability of the shell.”
Knight filed objections to Dr. Dorr’s supplemental declaration and Fuller’s declaration.
Knight did not authenticate the operative report. Nonetheless, the trial court indicated its belief that the supplemental Dr. Dorr declaration and Fuller’s declaration provided the missing authentication.
At the August 22, 2007, hearing, the trial court addressed Knight’s attorney, stating, “I got an objection to supplemental declarations. Are you asking for more time to respond?” Knight’s attorney replied, “Oh, no, your honor. My understanding was from our last argument, the parameters of supplemental [papers] were fairly limited. You indicated... the adequacy of [Dr. Paprosky’s] declaration.” He explained that the new declarations “supplemented the earlier declarations of the summary judgment about the fracture and how it occurred and so forth. [¶] Those I thought were inappropriate based upon the extent of our conversations previously when we were here a couple [of] weeks ago, and it was on that basis which we objected to their supplemental declaration[s] in that regard.”
With respect to Knight’s informed consent argument, the trial court believed Knight was changing her theory. Knight unsuccessfully requested leave to amend. The trial court admitted the supplemental declaration of Dr. Dorr and declaration of Fuller, opined that there was no triable issue as to whether the fracture occurred during the explantation of the reprocessed Sulzer shell, and granted the motion for summary judgment based on the class action settlement and the federal district judge’s January 6, 2006, order.
The first appeal followed.
The motion for judgment on the pleadings
Zimmer requested judgment on the pleadings due to the trial court’s conclusion that Knight’s injury occurred during the explantation of the reprocessed Sulzer shell and her claims were barred by the class action.
The motion was granted.
The second appeal followed.
DISCUSSION
I. The first appeal.
Knight contends: (1) The trial court improperly admitted the supplemental declaration of Dr. Dorr and declaration of Fuller in support of Dr. Dorr’s contention that the facture occurred during the explantation of the reprocessed Sulzer shell. (2) There is a triable issue as to whether the facture occurred during the implantation of the Zimmer shell rather than the explantation of the reprocessed Sulzer shell. (3) The trial court should have permitted Knight to amend her pleading to allege a claim against Dr. Dorr based on lack of informed consent.
We disagree.
A. Standard of review.
When assessing the propriety of summary judgment, our review is de novo. We are required to “apply the same three-step analysis used by the superior court. We identify the issues framed by the pleadings, determine whether the moving party has negated the opponent’s claims, and determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) “[W]e construe the moving party’s affidavits strictly, construe the opponent’s affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.” (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19.)
The de novo standard of review, however, does not apply to all facets of a summary judgment proceeding. When a trial court is presented with a motion for summary judgment and admits evidence not referenced in the proponent’s separate statement, or admits evidence presented with the reply, the trial court’s action is reviewed for an abuse of discretion. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 310 (San Diego Watercrafts); Coy v. County of Los Angeles (1991) 235 Cal.App.3d 1077, 1084.)
B. Dr. Dorr’s supplemental declaration and Fuller’s declaration were properly admitted and considered.
Knight contends that the trial court’s decision to admit Dr. Dorr’s supplemental declaration and Fuller’s declaration was an abuse of discretion pursuant to San Diego Watercrafts.
In San Diego Watercrafts, the movant for summary judgment, in connection with its reply, submitted evidence that was omitted from its separate statement. (San Diego Watercrafts, supra, 102 Cal.App.4th at p. 316.) The court held: “In considering this evidence, the [trial court] violated [the plaintiff’s] due process rights. [The plaintiff] was not informed what issues it was to meet in order to oppose the motion. Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail. [Citation.]” (Ibid.)
Here, unlike in San Diego Watercrafts, Knight was apprised of the pertinent issue she needed to address. Dr. Dorr’s separate statement, fact No. 10, averred: “The fracture of [Knight’s] acetabulum [during the] December 2, 2003[,] surgery occurred during the explantation of the [reprocessed Sulzer shell]. The injury [Knight] is claiming in this action occurred prior to the time Dr. Dorr attempted to place the [Zimmer shell].” In his initial declaration, Dr. Dorr stated that the fracture occurred during the explantation of the reprocessed Sulzer shell. Knight knew she was obligated to create a triable issue as to when the fracture occurred.
It is true that Dr. Dorr provided additional evidentiary matter not referenced in the separate statement. In particular, he submitted declarations to explain an ambiguity in the operative report. But “the trial court’s consideration of such additional evidence is not an abuse of discretion so long as the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material. [Citation.]” (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) Knight’s counsel was asked if he was requesting for more time to respond. He said “No.” Knight cannot decline to exercise a due process right and then complain about it on appeal.
In her reply, Knight argues: “Because the [trial court] had already ruled in favor of [Knight] in its tentative and the [trial court] had ordered [the] parties only to cure the procedural deficiencies [in their] existing submissions, [Knight] did not have cause to believe that further evidentiary submissions were necessary.” This argument is unavailing. Simply put, Knight’s counsel made a tactical decision to not ask for time to file further papers.
The trial court acted within its discretion.
C. There are no triable issues.
Knight asserts that the operative report and Cadarette’s testimony create a triable issue as to when the fracture occurred.
Once again, we disagree.
Dr. Dorr and Fuller declared that the fracture occurred during the explantation of the reprocessed Sulzer shell. As a factual bulwark, they both noted that there was bone on the back of the reprocessed Sulzer shell when it was removed. This, to them, indicated that there was a fracture. To a reasonable medical probability, Dr. Paprosky concurred regarding the timing of the injury. The declarations of Dr. Dorr, Fuller and Dr. Paprosky shifted the burden to Knight.
In our view, the operative report and Cadarette’s testimony did not create a triable issue. Neither the operative report nor Cadarette’s testimony pinpointed the time when the fracture occurred. Notably, Cadarette was not an eyewitness to the injury. At most, we are left with an inference that the fracture possibly occurred during the implantation of the Zimmer shell. The problem is that this inference is speculative, particularly in light of declarations by Dr. Dorr and Fuller that bone was attached to the back of the reprocessed Sulzer shell. Speculative inferences cannot defeat summary judgment. (Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161 [“When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork”].)
D. The issue of leave to amend was waived.
In her opening brief, Knight stated: “The sole issue on this appeal is whether the trial court erred in granting summary judgment against [Knight] after admission and consideration of the new declarations improperly filed by Dr. Dorr. If the trial court erred, [Zimmer’s] motion for judgment on the pleadings... cannot be sustained and must be vacated.” Not until her reply brief did Knight argue that she should be allowed to amend her complaint against Dr. Dorr to assert a claim for lack of informed consent. It is axiomatic that “‘[a] point not presented in a party’s opening brief is deemed to have been... waived. [Citations.]’ [Citation.]” (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.)
Regardless of the foregoing, if Knight’s injury occurred during the explantation of the reprocessed Sulzer shell, then all her claims—including one based on lack of informed consent—are barred by the class action.
In her reply, Knight argues that an informed consent claim would not be barred by the class action settlement. She puts her faith in Warren v. Schecter (1997) 57 Cal.App.4th 1189 (Warren). The plaintiff in Warren underwent gastric surgery and then sued a doctor based on lack of informed consent after the plaintiff developed metabolic bone disease. She prevailed. On appeal, the doctor argued that the damages award improperly included amounts for complications such as “‘dumping syndrome’” and “‘akeline reflux gastritis’” that the plaintiff had been warned about. (Id. at p. 1196.) The court held that the plaintiff could “recover not only for the undisclosed complications, but also for the disclosed complications, because she would not have consented to either surgery had the true risk been disclosed, and therefore would not have suffered either category of complications.” (Id. at p. 1195.)
Based on Warren, Knight argues: “Similarly here, regardless of whether the pelvic fracture was related to the removal of the [reprocessed Sulzer shell] or the placement of the [Zimmer shell], she would not have [undergone] surgery in the first instance if she had been properly [informed] of the risk.” But Warren cannot be stretched to accommodate what is being urged. Though Knight does not state it, she asks us to conclude that the release in the class action settlement does not apply to injury arising from lack of informed consent. While Warren explored the parameters of lack of informed consent damages, it does not state that a prior release in a products liability action places a procedural hurdle in front of subsequent claims for malpractice except for lack of informed consent. Thus, Knight failed to establish that she could amend her pleading to state a viable claim.
II. The second appeal.
In her opening brief, Knight asks us to reverse the judgment on the pleadings in favor of Zimmer but provides no supporting argument. In her reply brief, she contends that judgment on the pleadings in favor of Zimmer should be reversed if we reverse summary judgment as to Dr. Dorr. Having found in Dr. Dorr’s favor, we therefore have no cause to reverse as to Zimmer.
DISPOSITION
The judgment is affirmed. Accordingly, Dr. Dorr and Zimmer are entitled to recover their costs on appeal.
We concur: BOREN, P. J., DOI TODD, J.