Carol Adams v. Synthes Spine Company, Lp

Dissent by Judge FERGUSON.

OPINION

This is a products liability case involving no questions of federal law, just a question of state law.

Facts

Carol Adams had persistent severe back and neck pain, radiating down into her fingers. The pain was caused by spurring on her vertebrae and deterioration of the disks in her neck. It did not respond to steroids, traction, or other conservative treatment, so she elected to have surgery to remove the spurs and the bad disks. Her neurosurgeon removed three disks and parts of three vertebrae. To maintain the stability of the spine, he removed a piece of bone from her hip and inserted it in the gap in her neck vertebrae. This is a standard way to do the cervical fusion operation he was performing.

The neck has to be held still during the three months or so until the piece of hip bone fuses with the neck bones to form a solid and stable substitute for the removed pieces of vertebrae. This used to be done, in an operation of this magnitude, by requiring the patient to wear a halo for four months. Holes would be drilled into the skull of the patient in order to screw the halo to the skull, and the halo would be held in place by a kind of…

dissenting.

This case should go to a jury and, thus, I respectfully dissent. In this case, the District Court granted summary judgment for Synthes Spine. A grant of summary judgment is reviewed de novo. Delta Sav. Bank v. United States, 265 F.3d 1017 , 1021 (9th Cir.2001) (citations omitted). Our review is governed by the same standard used by the trial court under Rule 56(c) of the Federal Rule of Civil Procedure. Id. (citation omitted). Thus, we must determine, viewing the evidence in the light most favorable to Ms. Adams, whether the District Court correctly applied the relevant substantive law and whether there are any genuine issues of material fact. Id. (citation omitted). We must not weight the evidence or determine the truth of the matter, but only determine whether there is a genuine issue of material fact for trial. Meade v. Cedarapids, Inc., 164 F.3d 1218, 1221 (9th Cir.1999) (citation omitted).

The record in this case gives rise to two genuine issues of material fact, which preclude the granting of summary judgment in favor of Synthes Spine: (1) whether the plate manufactured by Synthes Spine was defective under the “reasonable expectation of the consumer” test, 1…

298 F.3d 1114 Carol ADAMS, Plaintiff-Appellant, v. SYNTHES SPINE COMPANY, LP, Defendant-Appellee. No. 00-35094. United States Court of Appeals, Ninth Circuit. Submitted October 16, 2001. 1 Filed August 8, 2002. David A. Williams (briefed), Bellevue, WA, for the appellant. Christopher W. Tompkins (briefed), Betts, Patterson & Mines, P.S., Seattle, WA, for the appellee. Appeal from the United States District Court for the District of Eastern Washington; Edward F. Shea, District Judge, Presiding. D.C. No. CV-98-03083-EFS. Before: FERGUSON, KLEINFELD, and GOULD, Circuit Judges. Dissent by Judge FERGUSON. OPINION KLEINFELD, Circuit Judge. 1 This is a products liability case involving no questions of federal law, just a question of state law. 2 Facts 2 Carol Adams had persistent severe back and neck pain, radiating down into her fingers. The pain was caused by spurring on her vertebrae and deterioration of the disks in her neck. It did not respond to steroids, traction, or other conservative treatment, so she elected to have surgery to remove the spurs and the bad disks. Her neurosurgeon removed three disks and parts of three vertebrae. To maintain the stability of the spine, he…