Judge: Anne Hwang, Case: 20STCV12768, Date: 2024-01-11 Tentative Ruling

Case Number: 20STCV12768    Hearing Date: January 11, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.      Notice of Motion and Motion for Summary Judgment

2.      Separate Statement of Undisputed Material Facts

3.      Declaration of Stephen Mikulak

4.      Declaration of Kevin P. Miller

5.      Declaration of Brad L. Penenberg

6.      Notice of Lodging in Support

OPPOSITION PAPERS

None

REPLY PAPERS

None

BACKGROUND

            On June 26, 2020, Plaintiff Herb Glazeroff (Plaintiff) filed the operative first amended complaint (FAC) against Defendants Brad Penenberg, M.D., Wright Medical Group, N.V., Wright Medical Group, Inc., Wright Medical Technology, Inc. (Wright), Doe 1, Microsoft Orthopedics, Inc. (Microsoft), and Does 2 to 100 for medical malpractice, strict products liability, and negligence.

            Against Moving Defendant Brad Penenberg, M.D. (Defendant), Plaintiff asserts a single cause of action for medical malpractice, alleging that Defendant negligently performed a left hip arthroplasty on Plaintiff using a “ProFemur Z Classic femoral component”, manufactured by Wright and Microsoft, which fractured at the neck five years later. Plaintiff alleges the ProFemur was “widely known at the time to be a defective product, prone to failures.” (FAC ¶ 16.) Plaintiff alleges that Defendant failed to disclose any information regarding the problems with ProFemur products. (Id.)

Defendant now moves for summary judgment, arguing that (1) he did not breach the standard of care; and (2) Plaintiff cannot prove causation.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

DISCUSSION

1.      LEGAL STANDARDDS – PROFESSIONAL NEGLIGENCE CLAIM

“Civil Code section 1714, subdivision (a) establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. When applied to medical professionals, this duty of care imposes a duty to use such skill, prudence and diligence as other members of his profession commonly possess and exercise.” (Flores v. Liu (2021) 60 Cal.App.5th 278, 290 [cleaned up].) To prevail on a claim for negligence against a medical professional, a plaintiff must demonstrate that: (1) a medical professional had a duty to use the skill, prudence and diligence that members of the profession commonly possess and exercise; (2) breach of that duty; (3) an injury that resulted from the breach of that duty; and (4) actual loss or damage resulting from the breach of that duty. (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612.)

“[T]he legal standard of care required by doctors is the standard of practice required by their own profession. The courts require only that physicians and surgeons exercise in diagnosis and treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. Thus, liability is not found, and the label of malpractice is not placed upon a physician's actions, unless some deviation by the physician from the standard of care that his peers consider appropriate in the situation under review is proven.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1081 [cleaned up].)

Expert testimony is generally the only admissible and relevant evidence on whether a medical professional has breached the standard of care. (Landeros v. Flood (1976) 17 Cal.3d 399, 410 [“ ‘The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony (citations), unless the conduct required by the particular circumstances is within the common knowledge of the layman’ ”].) As the Court of Appeal has held, in reversing summary judgments for medical professionals: “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony. California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606-607 [cleaned up].) Further, a plaintiff “is entitled to all favorable inferences that may reasonably be derived from” an expert’s declaration which must be liberally construed. (See Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 782.)

2. STANDARD OF CARE – BREACH AND CAUSATION

Defendant argues Plaintiff cannot establish that Defendant breached the standard of care in installing the ProFemur on Plaintiff, nor that an act or omission by Defendant caused or contributed to Plaintiff’s alleged injuries.

Here, Defendant offers the following facts:

-          On February 13, 2014, Dr. Penenberg performed a left total hip arthroplasty (hip replacement) on Plaintiff Herb Glazeroff. (UMF 5.)

-          During the procedure, Dr. Penenberg used a size 5 Monoblock ProFemur Z prosthesis. (UMF 6.)

-          Prior to using this particular Monoblock prosthesis, Dr. Penenberg used the modular version. Dr. Penenberg began using the Monoblock because he believed it was less prone to breakage, particularly at the femoral neck. (UMF 8.)

-          At the time Dr. Penenberg implanted the Monoblock Profemur Z on February 13, 2014, he was not aware of a single prior instance of the Monoblock prosthesis breaking or failing, particularly at the femoral neck. (UMF 9.)

-          The Monoblock prosthesis used by Dr. Penenberg was more resistant to breaking, as compared to the modular version. (UMF 10.)

-          On May 29, 2019, Plaintiff underwent revision surgery at Long Beach Memorial with Dr. Andrew Wassef to remove and replace the left hip prosthesis. (UMF 13.)

-          In performing the revision surgery, Dr. Wassef observed that the neck of Plaintiff’s femoral stem was fractured. (UMF 14.)

-          There was no sign of impingement (notching that increases risk of fracture) or sign of a mechanical problem that would lead to the fracture. (UMF 15.)

-          Dr. Wassef observed no nicks, scratches or anything that would suggest the femoral stem was installed improperly. (UMF 16.)

-          No doctors ever told Plaintiff that they believed Dr. Penenberg made some kind of mistake in any of his surgeries. (UMF 24.)

-          Dr. Penenberg had no reason to suspect the hip prosthesis that he installed in 2014 would break or fail. (UMF 25.)

-          The lack of any signs of impingement is an indication that Dr. Penenberg correctly installed and implanted the prosthesis. (UMF 26.)

-          There is no evidence that the prosthesis used by Dr. Penenberg in the 2014 arthroplasty was an incorrect or inappropriate size. (UMF 27.)

-          Dr. Penenberg acted within the standard of care in both selecting the ProFemur Z Monoblock prosthesis in 2014, and in the way he implanted during Plaintiff’s leg hip replacement. (UMF 29.)

-          Nothing Dr. Penenberg did or did not do in connection with his treatment of Plaintiff, including the hip replacement surgery, caused the failure of the prosthesis. (UMF 30.)

Defendant has met his initial burden of showing the absence of a triable issue of fact that Defendant breached the standard of care. Defendant has presented expert testimony by Dr. Mikulak, who is board certified by the American Board of Orthopaedic Surgery, who states “no reasonable physician at that time should have suspected this prosthesis would fail.” (Mikulak Decl. ¶ 8.) Therefore, the burden shifts to Plaintiff to establish a triable issue of fact.

Plaintiff has not filed an opposition or set forth expert testimony rebutting Defendant’s evidence. Therefore, Plaintiff fails to meet his burden to raise a triable issue of material fact.

Accordingly, the Court grants the motion for summary judgment.

CONCLUSION AND ORDER

            Based on the foregoing, Defendant Brad L. Penenberg, M.D.’s Motion for Summary Judgment is GRANTED. Defendant shall file a proposed judgment within 10 days.

            Defendant shall provide notice of the Court’s order and file a proof of service of such.