Strand v. General Elec. Co.

• Decision Date: 13 September 1996
• Docket Number: Civil No. 94-00196 BMK.
• Citation: 945 F.Supp. 1334
• Parties: Romey STRAND, Plaintiff, v. GENERAL ELECTRIC CO., Defendant.
• Court: Hawaii Supreme Court

945 F.Supp. 1334

Romey STRAND, Plaintiff, v. GENERAL ELECTRIC CO., Defendant.

Civil No. 94-00196 BMK.

United States District Court, D. Hawai`i.

September 13, 1996.

COPYRIGHT MATERIAL OMITTED

Joy A. Hutson, Hilo, HI, for plaintiff.

John S. Nishimoto, Patricia T. Fujii, Ayabe Chong Nishimoto Sia & Nakamura, Honolulu, HI, and Deborah K. Miller, Landels Ripley & Diamond, San Francisco, CA, for defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S EX PARTE MOTION FOR LEAVE TO FILE OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND FOR LEAVE TO FILE SECOND CONCISE STATEMENT OF FACTS WITH EXHIBITS; AND DENYING DEFENDANT'S MOTION TO STRIKE DECLARATIONS OF JOY A. HUTSON

KURREN, United States Magistrate Judge.

On March 27, 1996, Defendant General Electric Company ("GE") filed its Motion for Summary Judgment ("Defendant's Motion") and Separate Concise Statement of Facts ("Defendant's Concise Statement") in support thereof. Defendant GE bases its Motion for Summary Judgment upon the expiration of the controlling statutes of limitations. On April 29, 1996, GE filed its First Supplemental Separate Statement of Facts in Support of its Motion for Summary Judgment. Plaintiff filed her Memorandum in Opposition to Defendant's Motion for Summary Judgment and Concise Statement of Facts in Opposition to Defendant's Motion for Summary Judgment (including Declaration of Joy A. Hutson dated June 20, 1996) ("Plaintiff's Concise Statement") on June 24, 1996. Defendant GE filed its Reply Memorandum and Reply Separate Concise Statement of Facts ("Defendant's Reply Concise Statement") on July 1, 1996. On July 8, 1996, Plaintiff filed her Supplemental Memorandum in Opposition to Defendant's Motion for Summary Judgment (including Declaration of Hutson dated July 6, 1996) on July 8, 1996. On July 10, 1996, Defendant GE filed its Motion to Strike Declarations of Joy A. Hutson, pertaining to Declarations dated June 20, 1996 and July 6, 1996 (filed June 24 and July 8, 1996, respectively). Also on July 10, 1996, GE filed its Objection to Plaintiff's Supplemental Memorandum in Opposition to Defendant's Motion for Summary Judgment.

Defendant's Motion for Summary Judgment came on for hearing before this court on July 10, 1996. On July 16, 1996, Plaintiff lodged her Ex Parte Motion for Leave to File Memorandum in Opposition to Defendant's Motion for Summary Judgment and for Leave to File Second Concise Statement of Facts With Attached Exhibits ("Plaintiff's Ex Parte Motion").¹ On July 19, 1996, Defendant filed their Opposition to Plaintiff's Ex Parte Motion.

After careful consideration of the motions, the memoranda and concise statements of fact in support and opposition thereto, and the argument of counsel, the court GRANTS Defendant's Motion for Summary Judgment,² DENIES Plaintiff's Ex Parte Motion for Leave to File Opposition to Defendant's Motion for Summary Judgment and for Leave to File Second Concise Statement of Facts with Exhibits, and DENIES Defendant's Motion to Strike Declarations of Hutson.

BACKGROUND

In July, 1976, Plaintiff received "Natural Y" Surgitek breast implants. (Def.'s Concise Statement ¶ 3.) On January 20, 1989, Plaintiff had her implants removed because of evidence of rupture; both implants, in fact, were found to have ruptured. (Id. at ¶¶ 4-5.) On December 20, 1989, Plaintiff brought suit against Surgitek, Inc. and Mentor Corp., which suit included allegations that the "[s]ilicone gel [used in the implants] was defective in that it serves as an antigen in some women, causing a condition known as human adjuvant disorder to occur in those women who have had exposure to free silicone gel in their bodies following gel bleed or rupture of the implant." (Id. ¶ 6-7, Ex. 5 at 20 (Pl's Resp. to Def. Surgitek, Inc.'s Req. for Interrogs. dated May 21, 1990)). Plaintiff settled her lawsuit (or exchanged consideration in settlement) against Surgitek, Inc. and Mentor Corp. in October, 1991. (Id. ¶ 8, Pl.'s Concise Statement ¶ 3.)

Plaintiff filed this instant lawsuit against GE on March 11, 1994. Plaintiff sues Defendant for compensatory and punitive damages under theories of strict liability, negligence (including negligence per se for violations of the Food, Drug and Cosmetics Act), failure to warn, breach of express and implied warranties, breach of warranty for a particular purpose, misrepresentation, fraud, and fraud by concealment. (Complaint ¶ 8.)

This case was transferred to the multidistrict litigation panel by Order of April 29, 1994, and remanded to this court on January 5, 1996.

DISCUSSION

I. PLAINTIFF'S EX PARTE MOTION

At the hearing and in its Objection filed July 10, 1996, Defendant objected to Plaintiff filing her Supplemental Memorandum in Opposition to Defendant's Motion (filed July 8, 1996) on the grounds that it was untimely and that it "fail[ed] to remedy the deficiencies of her earlier opposition."

The court has reviewed Plaintiff's Ex Parte Motion concerning her request for leave to file Plaintiff's Memorandum in Opposition to Defendant's Motion and understands Plaintiff to be seeking leave, after the fact, to file the Memorandum and Concise Statement which were in fact filed with this court on June 24, 1996. In her Ex Parte Motion, by Declaration of her counsel, Plaintiff provides a description of mail service between Hilo and Honolulu as justification for a delay in filing of the materials filed June 24, 1996. The court finds that to the extent Plaintiff seeks leave to file the materials filed June 24, 1996, leave from this court is not necessary as the briefing and statement is already on file, and Plaintiff's request is DENIED.

With respect to Plaintiff's Ex Parte Motion for Leave to File Second Concise Statement of Facts with Attached Exhibits Plaintiff's request is DENIED as untimely. Defendant's filed their Motion on March 27, 1996. Plaintiff had more than three months prior to the hearing of Defendant's Motion in which to assemble the necessary affidavits to oppose Defendant's Motion or to request continuance on the matter pursuant to Fed. R.Evid. 56(f), yet Plaintiff requested leave of the court by ex parte motion only after the hearing of Defendant's Motion. Indeed, Plaintiff received at least one continuance of the hearing, filed a second memorandum in opposition without leave of the court, and presented pure argument at the hearing and was still unable to present the court with medical testimony or other evidence on issues crucial to disposition of Defendant's Motion for Summary Judgment. Plaintiff's request is DENIED for its lateness.

II. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

A. STANDARD FOR SUMMARY JUDGMENT

Summary judgment shall be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Summary judgment must be granted against a party who fails to demonstrate facts to establish an element essential to his case where that party will bear the burden of proof of that essential element at trial. Id. at 322, 106 S.Ct. at 2552.

If the party moving for summary judgment meets its initial burden of identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact, the non-moving party may not rely on the mere allegations in the pleadings in order to preclude summary judgment.

T.W. Electrical Serv. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987) (citation omitted). Rule 56(e) requires the non-moving party to set forth, by affidavit or as otherwise provided in Rule 56, "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. Rule 56(e) (emphasis added). At least some "`significant probative evidence tending to support the complaint'" must be produced. T.W. Electrical Serv., 809 F.2d at 630 (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968)). Legal memoranda and oral argument are not evidence and, therefore, fail to create issues of fact capable of defeating an otherwise valid motion for summary judgment. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979).

The Ninth Circuit has established that "[n]o longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." California Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988). Moreover, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (footnotes omitted). Indeed, "if the factual context makes the non-moving party's claim implausible, the party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Franciscan Ceramics, 818 F.2d at 1468 (emphasis in original) (citing Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356). Of course, all evidence and inference to be drawn therefrom must be construed in the light most favorable to the non-moving party. T.W. Electrical Serv., 809 F.2d at 630-31. Nevertheless, the standard for a grant of summary judgment reflects the standard governing the grant of a directed verdict: Whether "reasonable minds could differ as to the import of the evidence." Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987) (...