Roberts v. Albertson's LLC, No. 2:2008cv00236 - Document 78 (D. Nev. 2010)

Court Description: ORDER granting Defendants Albertson's and Samsung's 54 Motion for Summary Judgment. Clerk to enter Judgment. Signed by Judge Philip M. Pro on 6/22/10. (Copies have been distributed pursuant to the NEF - ECS)
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Roberts v. Albertson's LLC Doc. 78 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 DAVID ROBERTS, 7 Plaintiff, 8 v. 9 10 11 ALBERTSON’S LLC and SAMSUNG AMERICA, INC., et al., Defendants. *** ) ) ) ) ) ) ) ) ) ) ) ) 2:08-CV-00236-PMP-LRL ORDER 12 13 Presently before this Court is Defendants Albertson’s LLC and Samsung 14 America, Inc.’s Motion for Summary Judgment (Doc. #54), filed on October 14, 2009. 15 Plaintiff David Roberts filed a Response (Doc. #71) on November 24, 2009. Plaintiff also 16 filed Objections to Evidence Proffered in Defendants’ Motion (Doc. #74) on November 24, 17 2009. Defendants filed a Reply (Doc. #75) on December 4, 2009. 18 I. BACKGROUND 19 In or around 2005, Defendant Albertson’s LLC (“Albertson’s”) purchased blood 20 monitors from Defendant Samsung America, Inc. (“Samsung”). (Ex. 1 to Pl.’s Opp’n (Doc. 21 #72) at 9-10.) Albertson’s sold the blood pressure monitors under Albertson’s brand name, 22 Equaline. (Id.) The Equaline monitor’s instructions state that “All Equaline monitors . . . 23 are within accuracy limits prescribed by the American National standard for electronic or 24 automated sphygmomanometers.” (Id. at 19.) Samsung’s representative testified that 25 Samsung received consumer complaints regarding inaccurate readings from the Equaline 26 monitor, but that often the inaccurate readings were due to consumer misuse and failure to 1 1 follow the directions closely. (Id. at 28.) 2 After suffering a stroke on December 20, 2005, Plaintiff David Roberts 3 (“Roberts”) purchased an Equaline blood pressure monitor from a Save-On drugstore.1 4 (Defs.’ Mot. Summ. J. [“Defs.’ Mot.”] (Doc. #54), Ex. D at 157; Ex. G at ¶ 6; Pl.’s Opp’n 5 (Doc. #71), Decl. of David Roberts at ¶ 1.) When Roberts purchased the blood pressure 6 monitor, he also purchased a large size cuff. (Defs.’ Mot., Ex. G at ¶ 1.) Roberts read the 7 outside labeling of the blood pressure monitor’s box and the instructions. (Id., Ex. D at 8 200.) The only instruction Roberts recalls reading was that the monitor had to be 9 calibrated. (Id.) Roberts used the monitor on a regular basis in conjunction with Clonidine, 10 blood pressure medicine prescribed to him by the hospital after his first stroke. (Id., Ex. D 11 at 175; Ex. G at ¶ 1.) Roberts checked his blood pressure with the monitor sometimes three 12 times per day, but never less than once every other day. (Id., Ex. G at ¶ 1.) 13 On January 4, 2006, Roberts had an appointment with his primary care physician, 14 Dr. Gary Grossman (“Grossman”). (Id., Ex. E at 19.) At the appointment, the nurse took a 15 manual reading of Roberts’ blood pressure and then used Roberts’ electronic blood pressure 16 monitoring device to check his blood pressure. (Id., Ex. D at 203.) The manual reading 17 showed Roberts’ blood pressure at 114/72, which Dr. Grossman considered “adequate 18 blood pressure control.” (Id., Ex. E at 20-21.) According to the readings, however, there 19 was about a ten point difference between the manual and electronic blood pressure devices. 20 (Id., Ex. D at 203.) 21 In the middle of January 2006, Roberts began taking fish oil pills because he 22 read on the internet that they were known to reduce blood pressure. (Defs.’ Mot., Ex. D at 23 182-83.) Roberts did not consult with any physician regarding his choice to pursue a 24 /// 25 26 1 Save-On is owned by Albertson’s. 2 1 homeopathic naturopathic regimen. (Id. at 181.) Roberts avers he called Grossman2 and 2 informed him his blood pressure was below normal. (Defs.’ Mot., Ex. D at 184.) During 3 the call, Roberts also informed Grossman he was taking fish oil pills. (Defs.’ Mot., Ex. D at 4 185.) Roberts avers Grossman advised him to cut his Clonidine intake in half, from one 5 milligram three times a day to one half milligram three times a day. (Defs.’ Mot., Ex. D at 6 178, 186.) 7 Thereafter, Roberts began taking a second homeopathic supplement said to lower 8 blood pressure, Co-Q10. (Defs.’ Mot., Ex. D at 184-85.) Roberts’ blood pressure again 9 dropped below normal and as a result, towards the end of February 2006, Roberts decided 10 to stop taking Clonidine. (Defs.’ Mot., Ex. D at 185.) Roberts did not seek an opinion from 11 Grossman or any other medical professional regarding whether such an action would be 12 advisable. (Id. at 186.) On June 26, 2006, Roberts suffered a second, more severe stroke. 13 (Id. at 169.) During the entire period in question, Roberts smoked approximately two cigars 14 a week and drank one or two beers approximately three to four times a week. (Id. at 220- 15 21). Additionally, Roberts has smoked cigars since the 1970’s. (Id. at 220.) 16 In Grossman’s deposition, he testified that Roberts’ stroke was caused by high 17 blood pressure. (Defs.’ Mot., Ex. E at 31-32.) However, Grossman testified he had no 18 opinions regarding the efficacy of the blood pressure monitor or whether the allegedly 19 defective monitor was the cause of Roberts’ stroke. (Id. at 24, see also 33-34 (testifying 20 that, in addition to relying on the blood pressure monitor’s readings, Roberts also should 21 have followed up with Grossman and taken his medicine to avoid a stroke).) After Roberts’ 22 second stroke, Dr. Pham, one of the doctors following Roberts’ health and rehabilitation, 23 explained to Roberts that considering the amount of damage done, Roberts’ blood pressure 24 would have had to be high for a long period of time prior to Roberts’ second stroke. (Pl.’s 25 2 26 In Grossman’s deposition, he testifies that he believes one of his medical assistants handled Roberts’ phone call. (Defs.’ Mot., Ex. E at 40-41.) 3 1 2 Opp’n, Decl. of David Roberts at ¶ 5 & Ex. 3.) On December 20, 2007, Roberts filed a complaint in the Eighth Judicial District 3 Court of Nevada alleging the blood pressure monitor Roberts purchased at Albertson’s was 4 defective and/or negligently manufactured causing Roberts medical injuries. (Notice of 5 Removal (Doc. #1), Ex. A (“Compl.”) at ¶ 14.) Specifically, Roberts alleges the blood 6 pressure monitor gave him false, low blood pressure readings that caused him to forego 7 taking medicine he was prescribed, thus causing him to have a stroke. (See Compl.) 8 Albertson’s subsequently removed the case to this Court. (Notice of Removal.) On June 9 13, 2008, Roberts filed an Amended Complaint adding Samsung as a Defendant. (Am. 10 11 Compl. (Doc. #16) at ¶ 15.) Defendants now move for summary judgment arguing Roberts cannot raise an 12 issue of material fact to establish that the blood pressure monitor had a defect which made it 13 unreasonably dangerous because Roberts lacks expert testimony establishing Defendants’ 14 product caused Roberts’ damages. In response, Roberts contends he does not need an 15 expert to establish the blood pressure monitor was defective and there are numerous 16 questions of material fact establishing Roberts’ products liability claim. 17 II. LEGAL STANDARD 18 Summary judgment is appropriate “if the pleadings, the discovery and disclosure 19 materials on file, and any affidavits show that there is no genuine issue as to any material 20 fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). 21 Initially, the moving party bears the burden of proving there is no genuine issue of material 22 fact. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002). If the moving party 23 meets its burden, the burden shifts to the nonmoving party to “set forth specific facts that 24 show a genuine issue for trial.” Id. (internal quotation omitted). A moving party without 25 the ultimate burden of persuasion at trial “must either produce evidence negating an 26 essential element of the nonmoving party’s claim or defense or show that the nonmoving 4 1 party does not have enough evidence of an essential element to carry its ultimate burden of 2 persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 3 1102 (9th Cir. 2000). The Court views all evidence in the light most favorable to the 4 non-moving party. Leisek, 278 F.3d at 898. 5 III. DISCUSSION 6 Defendants argue Roberts has not presented any expert testimony to establish to 7 a reasonable degree of medical certainty that the allegedly defective product caused 8 Roberts’ injury. Defendants contend Roberts stopped taking Clonidine on his own volition, 9 not because of Defendants’ product. Additionally, Defendants contend Roberts’ possible 10 misuse of the large cuff, his prior history of high blood pressure, and his regular drinking 11 and smoking habits may have caused the stroke. 12 Roberts responds that there are sufficient questions of material fact because the 13 manufacturer represented that the product was accurate and reliable and failed to warn that 14 using the cuff incorrectly would result in false readings. Roberts argues the product is 15 defective because it did not perform as a reasonable person expected it to perform, and an 16 expert is not necessary to testify to that, as the issue of consumer expectation is one for the 17 trier of fact. Additionally, Roberts contends Grossman testified that Roberts’ high blood 18 pressure caused his second stroke. Finally, Roberts argues Defendants have provided no 19 evidence to support their assertion that other factors may have caused his stroke. 20 A federal court sitting in diversity must apply the substantive law of the forum 21 state in which it resides. Vacation Village, Inc. v. Clark County, Nev., 497 F.3d 902, 913 22 (9th Cir. 2007). The parties agree that Nevada law governs in this case. In strict product 23 liability cases, the plaintiff carries both the burden of production and the burden of 24 persuasion. Rivera v. Philip Morris, Inc., 209 P.3d 271, 275 (Nev. 2009). 25 /// 26 To establish either a strict products liability or failure to warn claim, a plaintiff 5 1 must show “(1) the product had a defect which rendered it unreasonably dangerous, (2) the 2 defect existed at the time the product left the manufacturer, and (3) the defect caused the 3 plaintiff’s injury.” Id. (quotation omitted). To prevail on a negligence theory, the plaintiff 4 also must establish causation. See Perez v. Las Vegas Med. Ctr., 805 P.2d 589, 590-91 5 (Nev. 1991). 6 To prove causation, a plaintiff must produce expert medical testimony opining to 7 a reasonable degree of medical certainty that the allegedly defective product caused the 8 plaintiff’s injury. Neal-Lomax v. Las Vegas Metro. Police Dep’t, 574 F. Supp. 2d 1193, 9 1199-1200 (D. Nev. 2008) (applying Nevada law). Expert medical testimony regarding 10 causation must be stated to a reasonable degree of medical probability because “if the 11 plaintiff’s medical expert cannot form an opinion with sufficient certainty so as to make a 12 medical judgment, there is nothing on the record with which a jury can make a decision 13 with sufficient certainty so as to make a legal judgment.” Moriscato v. Sav-On Drug 14 Stores, Inc., 111 P.3d 1112, 1116 (Nev. 2005) (quotation omitted). Thus, “[a] possibility 15 that the product caused the injury is insufficient.” Neal-Lomax, 574 F. Supp. 2d at 1198. 16 Viewing the evidence in the light most favorable to Roberts, Roberts has failed to 17 present evidence raising a genuine question of material fact as to whether Defendants’ 18 product caused Roberts’ stroke. Roberts has presented no expert testimony establishing the 19 allegedly defective blood pressure monitor caused his stroke or that the blood pressure 20 monitor was defective. Additionally, even assuming Defendants’ failed to include 21 sufficient warnings regarding how to use the product properly, Roberts has not presented 22 evidence to establish the alleged failure to warn caused his stroke. Defendants have raised a 23 variety of other factors that may have caused Roberts’ stroke, including prior history of 24 high blood pressure, alcohol use, smoking, improper use of the large cuff, and Roberts’ 25 choice to stop taking Clonidine without his doctor’s approval. Roberts bears the burden of 26 establishing the other factors did not cause or contribute to his stroke. As such, Roberts 6 1 must provide expert testimony that, to a reasonable degree of medical certainty, the blood 2 pressure monitor caused his stroke. Roberts has failed to provide such evidence. 3 Accordingly, Defendants’ Motion for Summary Judgment is granted. 4 IV. CONCLUSION 5 6 7 8 IT IS THEREFORE ORDERED that Defendants Albertson’s and Samsung’s Motion for Summary Judgment (Doc. #54) is hereby GRANTED. IT IS FURTHER ORDERED that Judgment is hereby entered in favor of Defendants Albertson’s and Samsung and against Plaintiff David Roberts. 9 10 DATED: June 22, 2010. 11 12 13 _______________________________ PHILIP M. PRO United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 7