NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 13 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHELLE HIMES; et al., No. 21-55517

Plaintiffs-Appellants, D.C. No. 2:17-cv-06686-RGK-JC and

JOSE RIERA; et al., MEMORANDUM*

Plaintiffs,

v.

SOMATICS, LLC,

Defendant-Appellee,

and

MECTA CORPORATION,

Defendant.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted March 7, 2022 Submission Vacated April 1, 2022 Resubmitted August 9, 2024 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Before: IKUTA, LEE, and FORREST, Circuit Judges.

Michelle Himes, Marcia Benjamin, and Daniel Benjamin sued Somatics, LLC

for negligence, strict liability, and loss of consortium. They alleged injury arising

from use of Somatics’ electroconvulsive therapy product, the Thymatron ECT

Machine. In April 2022, we issued a memorandum disposition affirming “the district

court’s grant of summary judgment for Somatics with respect to the Benjamins’

claims.” 2022 WL 989469, at *2 (9th Cir. Apr. 1, 2022). The resolution of Himes’

claims, however, turned on “the proper causation standard” applicable under

California law, on which there was “no controlling state precedent.” Id. at *3.

We thus certified the following question to the Supreme Court of California:

Under California law, in a claim against a manufacturer of a medical product for a failure to warn of a risk, is the plaintiff required to show that a stronger risk warning would have altered the physician’s decision to prescribe the product? Or may the plaintiff establish causation by showing that the physician would have communicated the stronger risk warnings to the plaintiff, either in their patient consent disclosures or otherwise, and a prudent person in the patient’s position would have declined the treatment after receiving the stronger risk warning?

Himes v. Somatics, LLC, 29 F.4th 1125, 1127 (9th Cir. 2022). The Supreme Court

of California accepted certification.

In June 2024, the Supreme Court of California answered our question. It

concluded that “a plaintiff may establish causation by showing that the physician

2 would have communicated the stronger warning to the patient” and “that an

objectively prudent person in the patient’s position would have declined treatment

despite the physician’s assessment that the benefits of the treatment for the patient

would still outweigh any risks disclosed by a stronger warning.” Himes v. Somatics,

LLC, 549 P.3d 916, 921 (Cal. 2024).

In light of this response, we vacate the district court’s summary judgment for

Somatics as to Himes’ claims, and remand for the district court to reassess whether

summary judgment is warranted as to those claims under the causation analysis

formulated by the Supreme Court of California.

VACATED IN PART and REMANDED IN PART.

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