Nodine
Nodine v. Shiley Inc.
Opinion
Lead Opinion
Tashima, J.
Opinion by Judge TASHIMA; Dissent by Judge ALSUP.
Plaintiffs-Appellants Janice F. Nodine (“Nodine”) and Roger D. Nodine (collectively “plaintiffs”) appeal the district court’s grant of summary judgment in favor of Defendants-Appellees Shiley Inc.; Pfizer, Inc.; Bruce Fattel; Grindley Manufacturing, Inc.; and Howmedica Corp. (collectively “Shiley”) on plaintiffs’ fraud claim concerning Nodine’s Bjork-Shiley Con-vexo-Concave artificial heart valve (“BSCC valve”). Summary judgment was granted on two independent grounds: (1) Plaintiffs’ claim was time-barred under § 338(d) of the California Code of Civil Procedure; and (2) Plaintiffs failed to raise a triable issue of fact on the reliance element of the claim. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.
I. BACKGROUND
Nodine was diagnosed with congestive heart failure in July, 1986. Nodine’s family doctor referred her to a cardiologist, Dr. Joseph R. Dorchak, who, in turn, referred her to a surgeon, Dr. Joe R. Utley. The doctors told Nodine that she needed to have a heart valve replacement or she would die within three to six months. Dr. Utley discussed various options for artificial valves with Nodine. Dr.…
Dissenting Opinion
Alsup, J.
dissenting:
I would reverse.
In product liability cases involving the health and well being of Americans, such as exposure to carcinogens, or, as here, rebanee on possibly defective heart valves, a primary settlement difficulty is the inability to predict whether any given claimant will, in the future, suffer cancer or heart failure or similar harm. In the mean *1155 time, however, all victims may suffer anxiety over fear of catastrophe. Such cases, therefore, are typically settled by compensating immediately for all emotional distress (as well as any hard economic losses incurred to date) and leaving for the future any claim for cancer or heart failure or a similar such event should it actually occur. This model is a practical means of closing thousands of individual claims, for very few claimants ever really need to call on the second half of the settlement formula. If they do, then a future remedy is available.
The present case and settlement at issue were based on that model. Regrettably, however, the panel opinion denies the No-dines the benefit of the second half of the settlement formula. Parting company with the panel, I would construe the agreement as clearly carrying…