No. 1 CA-CV 18-0399 (Ariz. Ct. App. Jun. 11, 2019)

No. 1 CA-CV 18-0399


GERALD COOK, et al., Plaintiffs/Appellants, v. RICHARD HAWKINS, et al., Defendants/Appellees.

COUNSEL The Sorenson Law Firm LLC, Tempe By Wade R. Causey Counsel for Plaintiffs/Appellants Dickinson Wright PLLC, Phoenix By Frederick M. Cummings, David J. Ouimette, Vail Cloar Counsel for Defendants/Appellees Richard Hawkins and Ann Hawkins Slattery Petersen PLLC, Tucson By GinaMarie Slattery Counsel for Defendant/Appellee Smith and Nephew, Inc.


Appeal from the Superior Court in Maricopa County
No. CV2016-094563
The Honorable David M. Talamante, Judge Retired



The Sorenson Law Firm LLC, Tempe
By Wade R. Causey
Counsel for Plaintiffs/Appellants

Dickinson Wright PLLC, Phoenix
By Frederick M. Cummings, David J. Ouimette, Vail Cloar
Counsel for Defendants/Appellees Richard Hawkins and Ann Hawkins

Slattery Petersen PLLC, Tucson
By GinaMarie Slattery
Counsel for Defendant/Appellee Smith and Nephew
, Inc.


Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge James P. Beene joined.


¶1 Gerald and Suzanne Cook appeal from the superior court's judgment in favor of Smith and Nephew, Inc. ("S&N") and Richard and Ann Hawkins on claims arising from the failure of Gerald Cook's knee replacement. For reasons that follow, we affirm.


¶2 In 2011, Gerald Cook underwent a total right knee replacement performed by Dr. Richard Hawkins, an orthopedic surgeon. As part of the surgery, Hawkins installed Genesis II and Legion parts designed, manufactured, marketed, and sold by S&N. In April 2014, Cook began experiencing swelling and pain in his right knee after slipping while descending some stairs. Cook then underwent another knee surgery, during which his new surgeon, Dr. Judd Cummings, discovered that the right knee implant parts had failed when the polyethylene tibial insert dislodged from the tibial baseplate.

¶3 Cook then sued Hawkins and S&N, asserting strict product liability and res ipsa loquitur claims against both and a medical malpractice claim against Hawkins.

¶4 S&N, joined by Hawkins, moved for summary judgment on the res ipsa claim. S&N noted multiple alternative explanations (aside from negligence) for why the knee implant might have failed, including Cook's slip down the stairs or his preexisting medical conditions. Additionally, S&N argued that Cook's treating physician, Dr. Cummings, had not offered any opinion on why the implant might have failed, much less an opinion that the failure was more likely than not the result of negligence.

¶5 In response, Cook provided an expert declaration from Dr. Cummings (the "Cummings Declaration"), stating:

[I]t is my opinion that there are only two options that could have led to the polyethylene insert becoming completely

disengaged. The first is that the part was either not properly locked in by the surgeon and/or was not sized properly at the time of the initial surgical implant procedure. The second option is that the locking mechanism failed prematurely and was defective.

Hawkins moved to strike the Cummings Declaration, asserting that it contradicted Cummings's prior deposition testimony. The superior court granted the motion to strike and denied Cook's subsequent motion to reconsider or, alternatively, to extend the expert witness deadline.

¶6 The superior court then granted summary judgment in favor of S&N and Hawkins on the res ipsa claim, reasoning that Cook had failed to make an adequate showing of exclusive control by any of the defendants or that the injury was more likely than not the result of the defendants' negligence, both essential elements of res ipsa loquitur.

¶7 S&N also moved for summary judgment on Cook's product liability claim, arguing that there was no evidence that a defect proximately caused Cook's injuries. After Cook admitted that this claim was also based on a res ipsa theory, the superior court granted the motion.

¶8 Hawkins moved for summary judgment on Cook's medical malpractice claim, arguing no evidence showed that he breached the standard of care or that such alleged negligence had caused Cook's injury. After Cook conceded that summary judgment would be proper unless the court reconsidered striking the Cummings Declaration, the superior court granted Hawkins's motion.

¶9 Based on these summary judgment rulings, the superior court entered final judgment in favor of Hawkins and S&N, from which Cook timely appealed. We have jurisdiction under Arizona Revised Statutes ("A.R.S.") § 12-2101(A)(1).


¶10 Cook argues the superior court erred by striking the Cummings Declaration and by entering summary judgment against him on all claims. We need not address the propriety of striking the Cummings Declaration, however, because even considering that evidence, summary judgment was nonetheless warranted.

¶11 We review de novo the superior court's grant of summary judgment and application of the law. Andrews v. Blake, 205 Ariz. 236, 240, ¶

12 (2003); State Comp. Fund v. Yellow Cab Co. of Phx., 197 Ariz. 120, 122, ¶ 5 (App. 1999). We construe the facts and reasonable inferences in the light most favorable to the opposing party. Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. Fund, 201 Ariz. 474, 482, ¶ 13 (2002); Strojnik v. Gen. Ins. Co. of Am., 201 Ariz. 430, 433, ¶ 10 (App. 2001). Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a); Orme Sch. v. Reeves, 166 Ariz. 301, 309-10 (1990). We may affirm the entry of summary judgment if it is appropriate for any reason. See City of Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, 111, ¶ 14 (App. 2001).

I. Res Ipsa Loquitur.

¶12 Res ipsa loquitur is a rule of circumstantial evidence permitting the jury to draw an inference of negligence from the fact of an accident, even without direct proof of negligence. Cox v. May Dep't Store Co., 183 Ariz. 361, 363 (App. 1995); see also Lowrey v. Montgomery Kone, Inc., 202 Ariz. 190, 192, ¶ 6 (App. 2002). To justify reliance on res ipsa, a plaintiff must show that (1) the injury is "of a kind that ordinarily does not occur in the absence of negligence," (2) the injury is "caused by an agency or instrumentality subject to the control of the defendant," and (3) the claimant is not "in a position to show the particular circumstances that caused the offending agency or instrumentality to operate to [his] injury." Lowrey, 202 Ariz. at 192, ¶ 7.

¶13 The fact that an injury is unusual does not by itself justify invocation of the doctrine. McWain v. Tucson Gen. Hosp., 137 Ariz. 356, 359 (App. 1983). Instead, to survive summary judgment on the first element, the plaintiff must present sufficient evidence to justify an inference "that negligence was more likely than not the cause of the accident." Cox, 183 Ariz. at 364; see also Gaston v. Hunter, 121 Ariz. 33, 49 (App. 1978) (noting that expert medical testimony may be required to show common knowledge in the medical profession that a particular injury does not generally occur in the absence of negligence). Similarly, the exclusive-control requirement serves as "an aid in determining whether it is more probable than not that the [injury] was the result of the defendants' negligence." Byars v. Ariz. Pub. Serv. Co., 24 Ariz. App. 420, 426 (App. 1975). "Although plaintiffs are not required to exclude all other possible causes of the injury, they must present facts showing there was a greater probability the injury resulted from the defendant's negligence than from any other cause." Sanchez v. Tucson Orthopaedic Inst., P.C., 220 Ariz. 37, 39, ¶ 9 (App. 2008).

¶14 Here, the Cummings Declaration offered two independent possible causes for the implant's failure: (1) negligence by Hawkins in installing the implant (failing to properly size or lock the tibial insert) or (2) a defect in the locking mechanism of S&N's device. Cook thus cannot invoke res ipsa against Hawkins because, based on the Cummings Declaration, a defect in S&N's device could have been the sole cause of the injury (without any negligence by Hawkins); conversely, Cook cannot invoke res ipsa against S&N because, based on the Cummings Declaration, Hawkins's negligence alone could have caused the injury (without a defective S&N product). See Sanchez, 220 Ariz. at 40-41, ¶¶ 14-15 (holding that the plaintiff could not invoke res ipsa against two defendants when the plaintiff was unable to specify the mechanism of injury and simply asserted that either one or the other defendant negligently caused the injury, but not that either probably did so) (citing and distinguishing Jackson v. H.H. Robertson Co., 118 Ariz. 29, 31, 33 (1978) (allowing res ipsa when two defendants had control over the instrumentality (falling bundles of metal flashing) that caused the plaintiff's injury)). Even discounting the alternative, non-negligent explanations offered by S&N and Hawkins, Cook's offer of two independently sufficient potential causes for the implant's failure (based on different negligence at different times by different parties) means that Cook failed to present evidence sufficient to support an inference that either individual defendant's negligence was probably responsible for Cook's injuries.

¶15 Accordingly, even considering the untimely Cummings Declaration, summary judgment against Cook on res ipsa was proper.

II. Strict Product Liability & Medical Malpractice.

¶16 Our resolution of the res ipsa claim also resolves Cook's remaining claims, which depend on the res ipsa inference.

¶17 To establish a prima facie case of strict liability, Cook had the burden to show the product was defective when it left S&N's control, the defect rendered the product unreasonably dangerous, and the defect was the proximate cause of his injuries. See Dietz v. Waller, 141 Ariz. 107, 110 (1984). As Cook conceded, however, his evidence for the existence of a defect causing his injury was "based on res ipsa, a hundred percent, absolutely." And because—even considering the Cummings Declaration—Cook failed to make an adequate showing to rely on res ipsa against S&N, summary judgment on Cook's product liability claim was proper.

¶18 Cook's medical malpractice claim required proof that Hawkins breached the applicable standard of care and that the breach caused the plaintiff's injuries. See Seisinger v. Siebel, 220 Ariz. 85, 94, ¶ 32 (2009); see also A.R.S. § 12-563. But Cook did not present any direct evidence of Hawkins's alleged negligence or connect such negligence to his injury, instead relying on the Cummings Declaration and res ipsa to establish these elements inferentially. Because the res ipsa inference is not available, however, summary judgment on Cook's medical malpractice claim was proper.


¶19 For the foregoing reasons, we affirm.