Judge Ralph C. Hofer, Case Number: 20STCV22372, Date: 2024-04-19 Tentative Ruling

Judge: Ralph C. Hofer, Case: 20STCV22372, Date: 2024-04-19 Tentative Ruling

Case Number: 20STCV22372 Hearing Date: April 19, 2024 Dept: D

TENTATIVE RULING

Calendar: 1

Date: 4/19/2024

Case No: 20 STCV22372 Trial Date: Oct. 28, 2024

Case Name: Calvert, et al. v. Beckman Coulter, et al.

MOTION FOR SUMMARY JUDGMENT

(Or, in the Alternative, Summary Adjudication)

MOTION FOR SUMMARY JUDGMENT

Moving Party: Defendant Beckman Coulter, Inc.

Defendant Hung Luong

Responding Party: Plaintiffs Colby Calvert and Emmeline Calvert

RELIEF REQUESTED:

Beckman Coulter Motion

Order granting summary judgment in favor of defendant Beckman Coulter, Inc.

In the alternative, summary adjudication of strict liability claims against Beckman Coulter, Inc.

Luong Motion

Order granting summary judgment in favor of defendant Hung Luong

CAUSES OF ACTION: from Second Amended Complaint

1) Negligence v. Luong, Elowitz, HHMI

2) Negligent Supervision v. Beckman Coulter

3) Strict Product Liability v. Beckman Coulter

4) Vicarious Liability v. Beckman Coulter

5) Vicarious Liability v. HHMI

6) Loss of Consortium v. All Defendants

SUMMARY OF FACTS:

Plaintiff Colby Calvert alleges that he was injured when defendant Hung Luong, working for defendant Beckman Coulter, Inc. (Beckman Coulter), serviced a piece of laboratory equipment at a laboratory located at the California Institute of Technology (Cal Tech) and while so doing negligently allowed the equipment’s laser to shine through an open door into a highly-trafficked hallway, where it struck plaintiff in the eye, rendering permanent ocular damage. Plaintiff alleges that plaintiff was working at the Cal Tech laboratories as a research technician, and was at the time walking within a hallway of Elowitz Laboratory where Luong was aligning the lasers of a CytoFlex Flow Cytometer inside a room within the Elowitz Laboratory, when defendant allowed the Cytometer’s laser array to shine into the hallway by leaving the door open to the room housing the Cytometer. Plaintiff alleges that the Cytometer was owned and controlled by defendant Howard Hughes Medical Institute (HHMI), which had an actual employer-employee relationship with defendant Michael B. Elowitz, and that the Elowitz Laboratory was used, at least in part, to perform research commissioned by HHMI.

The operative complaint, the Second Amended Complaint, alleges causes of action for negligence, negligent hiring/training/supervision of defendant Luong, strict product liability, vicarious liability, and loss of consortium. The loss of consortium claim is brought by plaintiff Emmeline Calvert, the spouse of plaintiff Colby Calvert.

The file shows that on November 30, 2023, plaintiff filed a Request for Dismissal of the action with prejudice as to defendants Michael B. Elowitz and HHMI only.

ANALYSIS:

Procedural

Issues in Notice

The motion as brought by defendant Beckman Coulter is brought as a motion for summary judgment, or, in the alternative, summary adjudication.

While the separate statement sets forth 23 different issues related to the motion, the notice of motion sets forth only three of the issues for summary adjudication, Issues Nos. 21 through 23.

CCP section 437c(c) provides:

“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

Under CRC Rule 3.1350(b):

“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.”

Accordingly, it is held that a court may not summarily adjudicate claims or defenses unless requested in the notice of motion. Homestead Savings v. Superior Court (1986) 179 Cal. App.3d 494, 498. Where only certain claims or defenses are raised, the court has no power to adjudicate others. Maryland Cas. Co. v. Reeder (1990) 221 Cal.App.3d 961, 974.

The court accordingly considers the Beckman Coulter motion as a motion for summary judgment or, in the alternative, summary adjudication only of the issues set forth specifically in the notice of motion. The other issues listed in the separate statement are not separately considered by the court.

Substantive

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Defendant Beckman Coulter seeks summary judgment of the complaint, arguing that plaintiffs will be unable to establish one or more elements of their causes of action against defendant. In the alternative, Beckman Coulter seeks summary adjudication of the third cause of action for strict product liability, arguing that plaintiff will be unable to establish each element of that cause of action.

Defendant Luong seeks summary judgment in his favor of the causes of action brought against Luong for negligence and loss of consortium, also arguing that plaintiffs will be unable to establish one or more elements of plaintiffs’ causes of action.

The motions make similar, if not identical arguments, and are addressed together.

First Cause of Action—Negligence, Second Cause of Action-- Negligent Hiring Training/Supervision of Defendant Luong, Fourth Cause of Action—Vicarious Liability and Sixth Cause of Action—Loss of Consortium—Motion by Luong (Negligence and Loss of Consortium) and Beckman Coulter (all causes of action)

With respect to the first cause of action for negligence, to establish a claim for negligence, a plaintiff must allege and prove the following elements: The existence of a duty of care, breach of that duty, and an injury proximately caused by the breach. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.

With respect to the second cause of action for negligent hiring/training/supervision of defendant Luong, brought against defendant Beckman Coulter only, it is recognized that an employer may be found directly liable for the negligent hiring, training or retention of an unfit employee:

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. ( Evan F. v. Hughson United Methodist Church (1992) 8 Cal. App. 4th 828, 836 [10 Cal. Rptr. 2d 748].) Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. ( Id. at pp. 836-837.)”

Doe v. Capital Cities (1996, 2nd Dist.) 50 Cal.App.4th 1038, 1054.

With respect to the fourth cause of action for vicarious liability, also brought only against defendant Beckman Coulter, the cause of action alleges that defendant Beckman Coulter was the actual employer of defendant Luong, who was acting within the course and scope of his employment when his conduct injured plaintiff, and that defendant Beckman Coulter is therefore liable for defendant Luong’s negligent conduct, which caused plaintiff Colby Calvert to be personally injured and to suffer damages. [SAC, paras. 36, 37].

To establish a claim for loss of consortium, a plaintiff must plead and prove the following elements:

1) Marriage to victim

2) Negligent or intentional injury to spouse by defendant including elements of spouse’s cause of action against the defendant

3) Complete loss of conjugal society, comfort, affection, companionship and sexual relations for a period of time or indefinitely.

Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408; Elden v. Sheldon (1988) 46 Cal.3d 267, 277.

It is recognized that a cause of action for loss of consortium cannot be supported by a spouse where the injured spouse does not have a cause of action in tort. Blain v. Doctor’s Co. (1990) 222 Cal.App.3d 1048, 1067.

Defendants each argue in their respective motions that plaintiff will be unable to establish the essential element of each of these causes of action because plaintiff has no evidence to show that a hazardous laser light exited the boundaries of the subject device, so plaintiffs cannot establish general causation, and cannot show specific causation because there is no evidence of injuries caused by lasers.

This position appears to be an argument that plaintiffs cannot establish essential elements of their claims because there was no negligent act with respect to the operation of the machine, which did not emit a laser which could have harmed plaintiff Colbe Calvert, and/or that plaintiffs will be unable to establish that any conduct by defendants caused plaintiffs injury or damages.

It is held that the issues of due care (a negligent act), and proximate cause in a negligence case ordinarily present questions of fact for the jury. 6 Witkin, Summary of Cal. Law (11th Ed. 2023) Torts 996, 1333, citing Wahlgren v. Market Street Ry Co. (1901) 132 Cal. 656, 663; Fennessey v. Pacific Gas & Elec. Co. (1942) 20 Cal.2d 141, 144. Accordingly, defendant is entitled to a finding on summary judgment as a matter of law only if “the facts of the case permit only one reasonable conclusion.” Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354.

Here, defendants argue that plaintiffs will be unable to establish plaintiffs’ causes of action because causation is a fundamental element of each of plaintiffs’ claims, and must be established by competent expert evidence.

The moving papers rely on Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, in which the Second District affirmed the trial court’s granting of a motion for nonsuit in favor of defendant pharmaceutical company in a case where plaintiff had claimed her cancer was caused by the ingestion of defendant’s contraceptive drug. The Second District observed:

“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. ( Morgenroth v. Pacific Medical Center, Inc., supra, at p. 533; Johnston v. Brother (1961) 190 Cal.App.2d 464, 473 [12 Cal.Rptr. 23]; Pacific Employers Ins. Co. v. Industrial Acc. Com. (1960) 182 Cal.App.2d 162, 165 [5 Cal.Rptr. 738].) That there is a distinction between a reasonable medical "probability" and a medical "possibility" needs little discussion. There can be many possible "causes," indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes "probable" when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. (See Parker v. Employers Mutual Liability Ins. Co. of Wis. (Tex. 1969) 440 S.W.2d 43, 47.)”

Jones, at 402-403.

Defendants argue that plaintiffs lack competent expert evidence of general causation here because plaintiff’s theory that he was struck in the eyes by laser beams while Mr. Luong was working on the instrument is physically impossible for several independent reasons.

Defendants rely on the declaration of Erwin K. Lau, Ph. D, P.E., CLSO, an expert in product design and safety of optical/optoelectronic devices, including lasers and the device at issue here. [Lau Decl., para. 2]. Lau explains that based on the safety features of the machine at issue, a Cyto FLEX S instrument, his own experiments on an exemplar of the instrument, and the accounts of plaintiff and defendant Luong which eliminate the possibility of any reflective object being in the vicinity while the instrument was being serviced, Dr. Lau has concluded that there was no reflective object which was the cause of plaintiff Calvert’s claimed exposure to laser lights. [Lau Decl., paras. 3-10, 15]. Lau further opines that any observed light would have been non-hazardous, and that during the servicing of the machine, if any collimated beam of light had exited the boundaries of the instrument, the beam of light would have remained in an optical plane less than four feet above the ground, so that Mr. Calvert, who is between five feet nine and five feet eleven in height, would have had to have taken an overt action, such an intentional squat, to place his eyes into the optical plane. [Lau Decl., paras. 13, 15].

Dr. Lau testifies:

“In summary, I hold the following opinions to a reasonable degree of scientific certainty: (1) no hazardous laser light exited the boundaries of the CytoFLEX S instrument when Mr. Calvert alleges to have been exposed to lasers; (2) if Mr. Calvert was exposed to laser light, it was nonhazardous residual light that cannot cause injury;… (5) if, hypothetically, hazardous laser light (e.g., any collimated beam of light) exited the boundaries of the instrument, the light would have remained in an optical plane less than four feet above the floor and absent an overt action to lower the height of his eyes, any collimated beam of light would not have hit Mr. Calvert’s eyes.”

[Lau Decl., para. 15].

Defendants also argue that plaintiffs will be unable to establish medical causation here because plaintiff Colby Calvert has no evidence that he suffered a laser induced optical injury, but has had numerous Optical Coherence Tomography (OCT) scans performed on his retina, none of which show symptoms or damage consistent with a laser injury.

Defendants rely on the expert declaration of Alredo Sadun, M.D., Ph.D., who is a licensed physician and surgeon board certified in ophthalmology, with a specialty in neuro ophthalmology, who explains the recognized methods for verifying a laser-induced optical injury:

“6. A laser-induced optical injury is objectively verifiable by direct observation and by diagnostic testing. Specifically, a laser induced optical injury will immediately produce symptoms and damage the portions of the retina which was impacted by the laser and the burn becomes evident within a day. A very specific spot of damage to the retina will visible [sic] on direct observation by a variety of optical methods, by fundus photograph and, most sensitive of all, by Optical Coherence Tomography (‘OCT’) scan. The OCT can provide three-dimensional analysis of any retinal damage resolvable down to the 10 micron level.

7. The OCT is currently the gold standard for identifying the existence of a laser injury. If a patient does not have any spot of damage—which would be a retinal burn mark or secondary damage such as swelling—the patient does not have a laser injury.

8. Visible lasers, particularly single lasers with power output of 100 mW or less, or multiple separate lasers of similar power output, cannot damage any part of the body other than the eye. There is no reliable medical literature that supports the existence of a laser injury in the absence of any evidence on an OCT demonstrating a spot of damage as identified in paragraph 7 (above).”

[Sadun, Decl., paras. 6-8].

Dr. Sadun goes on to report the results of his own examination of plaintiff Colby Calvert, as well as his review of the medical records of other examining healthcare providers:

“9. On May 23, 2023, I performed a direct fundus examination on Mr. Calvert and found no laser scar in the retina. Additionally, I performed an OCT. The scan showed healthy-looking optic nerve heads and maculae, and normal nerve fiber layer. In short, there was no damage to the retina and no indication of any laser injury.

10. I have also reviewed the results of OCTs performed by other healthcare providers. These include scans performed by Michelle Sato, M.D., Swaraj Bose, M.D., Jonathan Macy, M.D., Daniel Su, M.D., and Carl Garbus, OD. I either reviewed the OCTs or reports thereof, none of which identified anything indicative of a laser injury to the retina.”

[Sadun Decl., paras. 9, 10].

Dr. Sadun also indicates that had plaintiff truly been injured by lasers from the subject instrument, his symptoms would consist not of positive visual phenomena, like the swirling colors and smearing vertical lines plaintiff has described to his treating physicians, but negative visual phenomenon, such as a dark patch or hole in his vision. [Sadun Decl., para. 11]. Dr. Sadun concludes concerning plaintiff Colby Calvert:

“I conclude to a degree reasonable medical probability that he did not suffer any injury to his retina from the Beckman Coulter CytoFLEX S laser because said injury has not been born out either by expected reported symptomology or relevant diagnostic testing.

12. To a reasonable degree of medical probability Mr. Calvert has not suffer [sic] any laser-induced optical injury.”

[Sadun Decl., paras. 11, 12].

The showing presented does not clearly meet defendants’ burden on the issue of whether there was in fact an incident involving plaintiff Colby Calvert experiencing exposure to laser lights on the date in question, as the moving papers submit deposition testimony from plaintiff in which he reports repeatedly that when he walked by the room where the cytometer was kept, the door was open, it looked like the cytometer was open with the safety cover off, and plaintiff saw four lights which appeared to be lasers, at his eye level, to which he was exposed for an estimated two minutes. [Campodonico Decl., para. 3, Ex. B, Calvert Depo. pp. 65-76]. The deposition testimony also appears to report that after plaintiff believes he was exposed he had trouble with his vision, similar to having stared at the sun for too long, but was still able to see well enough to work his protocols he was working on for his work. [Calvert Depo., p. 76]. This appears to be the type of negative symptomology, impeding his vision, which defendants’ expert indicates would have been suffered had plaintiff suffered an injury to his retina from a laser exposure. The testimony supports a competing reasonable inference that plaintiff suffered laser exposure and experienced symptoms of injury from such exposure based on plaintiff’s description of his visual symptoms alone.

CCP § 437c(c) provides that “summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” See also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 718.

There is a competing reasonable inference here presented by the evidence submitted by defendants. As noted above, the issue of whether there was some negligent act is ordinarily a question of fact, and summary judgment is appropriate only if the facts of the case permit only one reasonable conclusion. Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354. There is more than one reasonable conclusion to be reached on the showing on this issue of whether exposure occurred, and the motion on this issue is denied.

Even if defendants’ showing were sufficient to shift the burden, plaintiff in opposition has addressed these issues, as discussed below.

The initial showing is sufficient to satisfy defendants’ initial burden on the issue of causation, which in this context requires expert testimony. The court finds that the showing is sufficient to shift the burden to plaintiff to raise triable issues of material fact.

Plaintiffs in opposition argue that defendants are mistaken that there are no disputed facts to establish general and specific causation. Plaintiffs argues that there are disputed material facts which demonstrate that even if a collimated beam of laser light did not escape the cytometer, diffuse laser radiation undoubtedly did escape, exposing plaintiff Colby Calvert to a diffuse light spraying from the machine, which is just as dangerous to the human eye as a beam itself, and contentions about plaintiff’s precise height and the height of the machine are of no moment.

Plaintiffs also argue that as to specific causation, plaintiffs have submitted expert testimony from Dr. David Scales, M.D. which establishes both behavioral findings and objective test results consistent with the presence of laser eye injuries in Colby Calvert’s eyes.

With respect to the issue of plaintiff Colby Calvert’s claimed exposure to laser lights in his eyes, an issue which arguably remains in issue based on defendants’ submission of plaintiff’s deposition testimony, plaintiff further submits the expert declaration of expert Ashraf Eldakouri, Ph. D, a senior laser engineer with a master of science in applied physics and a Ph. D in laser physics. Eldakouri has worked in laser optics since 1998, and has experience in the design, construction, testing, calibration and operation of lasers and laser systems for a variety of diverse applications, including for medical, research and commercial purposes. [Eldakouri Decl., paras. 1-15].

Dr. Eldakouri has reviewed the relevant materials pertaining to this case, including the pertinent depositions and declarations, photographs of the subject machine, videos and photographs of the site inspection, product manuals, electrical ratings and descriptions of maintenance protocols. [Eldakouri Decl., para. 19]. The expert explains that in determining whether it was possible given the location and condition of the cytometer on the date of the incident that plaintiff saw bright lights and suffered a laser exposure with radiation in excess of the minimum threshold for eye injury, Dr. Eldakouri calculated the path of travel of any beam and diffuse radiation, and quantified the amount of energy that would have been transmitted during exposure. [Eldakouri Decl., para. 28-30].

Dr. Eldakouri explains his processes, indicates that there is no dispute that on the date of the incident the maintenance being performed indicates the cytoflex unit was powered on, the protective shielding was removed, and the safety interlock feature was disabled, meaning the four class 3B lasers were powered on, and that the circumstances are consistent with diffuse or scattering laser radiation produced as a result of reflection from the dichromic mirrors within the machine. [Eldakouri Decl., paras. 35-36]. The declaration explains that the subject machine has multiple warnings concerning eye damage, particularly where the protective housing has been removed, quoting those warnings and illustrative labels, and also explains that:

“Diffuse radiation is in many circumstances just as dangerous as direct beam radiation, and in some ways more so as it does not travel in a straight, predictable path. Instead, it spreads out in all directions as it travels from its point of origin. This makes it much more likely to contact a person’s eyes, as it did here, or interact with other reflective surfaces nearby, resulting in yet more unpredictable reflections and exposures.”

[Eldakouri Decl., paras. 37-40].

It is further explained that diffuse radiation does not travel in a tight controlled beam, but in this case predictably sprayed in a cloud toward the hallway, and also upward, straight above the machine, where there was a series of three shelves built directly above the machine at its location in the laboratory, which had been polished to a smooth surface, and set at an angle slightly more than an angle parallel to the ground. [Eldakouri Decl., paras. 41-48]. This testimony is in contradiction to the expert testimony offered by defendants, which depends on the fact that there was no reflective surface in the room or on the person of defendant Luong which would have refracted any laser beams.

Dr. Eldakouri states his opinions:

“49. In this case, it is my opinion to a reasonable degree of engineering certainty that on February 23, 2019, while the Cytoflex flow cytometer was powered on, and the protective housing was removed, and the safety interlocked was defeated, as Hung Luong stated, that diffuse laser radiation emitted from the reflection of the four Class 3B lasers in the Cytoflex unit from the dichromic mirrors, travelled outward from the exposed optical bench, to the hallway where Mr. Calvert was walking, but also to the underside of the shelving situated directly above the machine, and reflected at a myriad of varying angles, again, into the hallway, where the door to the room housing the machine was left open by the technician servicing the machine. Once in the hallway, it struck Mr. Calvert’s eyes, resulting in his describing seeing multicolored lasers.

50. I cannot agree that diffuse radiation from class 3B lasers (especially four of them firing at varying wavelengths and intensities) constitutes nothing more than “harmless light”.

51. In fact, attached hereto as Exh. “1” is a copy of the commonly accepted methodology utilized by optical engineers for computing diffuse laser radiation iridescence.

52. Additionally, I have provided analyses and computations performed by myself in this case, using the above-described theorems, factors, and methodologies, taking into account the powers and wavelengths of the lasers at issue in this case, as well as the distances involved, and other factors and I have calculated that in Mr. Calvert’s case, based on the power and wavelengths of the lasers present in the CytoFlex S on the date of the incident, Mr. Calvert’s eyes were exposed to diffuse radiation from the CytoFlex S machine and each of his eyes would have been exposed to reflective irradiance equal to approximately 210.18 mW/cm2. [Calculations are attached as Exh. “2” hereto.]

53. The usual “safe” irradiance at the retina of a human eye for long-term exposure is .29 mW/cm2.

54. In other words, Mr. Calvert’s exposure levels in each eye as a result of diffuse radiation from the Cytoflex S machine on the date of the incident were slightly less than one thousand times the level that is considered safe to the human eye, and were sustained over the course of approximately two seconds, according to his testimony.

55. Thus, the diffuse laser exposure that Mr. Calvert’s eyes sustained on February 23, 2019, exceeded the threshold at which injury to a human eye is known to occur.”

[Eldakouri Decl., paras. 49-55, italics in the original].

The expert explains that it was improper to leave the door open during the maintenance period, exposing third parties to unnecessary contact with laser beams, contrary to the warnings on the machine. [Eldakouri Decl., paras. 32-33, 37, 38].

Plaintiff also submits the declaration of another expert, Jamie Tijerina, a specialist in flow cytometry, who is employed as faculty at Cal Tech at the Flow Cytometry and Cell Sorting Facility, who routinely works with Beckman Coulter CytoFlex S in day-to-day work, has reviewed the appropriate materials, and opines that rooms that house instruments such as the subject instrument should have signage indicating the presence of lasers at all times, when no such signage was in place, and that such an instrument should be kept behind a closed door or with a shade placed to protect personnel passing by. [Tijerina Decl., paras. 2-15]. The expert also explains the mechanics of the instrument’s release of diffuse radiation when being serviced, and opines, “Based on the description by Mr. Calvert about what he visualized on the date of the incident, he was exposed to diffuse radiation from 4 class 3B lasers emanating from the Beckman Coulter CytoFlex S as he stood in the hallway of the Elowitz laboratory.” [Tijerina Decl., para. 17].

These declarations are each independently sufficient to raise triable issues of material fact with respect to whether plaintiff in fact experienced exposure to laser light which was of a sufficient level to injure plaintiff’s eyes. Accordingly, even if the burden had shifted to plaintiffs here to raise triable issues of material fact on this issue, that burden has been met. The motion on this issue is denied.

Defendants in the reply argue that this theory of diffuse exposure was not alleged in the operative complaint, and cannot be raised for the first time in opposition to summary judgment, when plaintiff has consistently testified in his deposition testimony that he saw four beams of light, of differing colors, not a cloud or diffusion of lights.

While the pleadings generally delineate the issues to be addressed on summary judgment, the motion itself anticipates that plaintiffs in opposition will be arguing that light emanating from the instrument was diffuse, and submits evidence from defendants’ experts explaining how such escaping light would not be harmful. [See Lau Decl., paras. 13, 15]. Moreover, the SAC refers to exposure to dangerous instrumentalities, “such as and including the Cytometer and its laser array.” [SAC, paras. 23, 25, 26]. This “including” language, as well as reference to the laser “array,” appears sufficiently broad to have placed defendants on notice that more than separate light beams are being alleged to have potentially been the source of plaintiff’s exposure and injuries. In addition, as noted above, the argument appears to be moot, as the court is prepared to find that defendants have not met the initial burden on this issue concerning the existence of exposure, and is only addressing the triable issues raised on the substance of this issue to demonstrate that triable issues have nonetheless been raised.

With respect to the issue of causation, plaintiffs submit the declaration of David Scales, M.D.

Dr. Scales is not only a percipient witness in this case as a treating physician of plaintiff Colby Calvert, but also provides sufficient facts to establish his qualifications to testify as an expert, as he is a board-certified ophthalmological surgeon, and a member in good standing of the American Academy of Ophthalmology and the American Society of Retinal Specialist, has completed all the appropriate education, training, residencies and fellowships and has been in practice continuously for forty-two years. [Scales Decl. paras. 1-17]. Dr. Scales has treated numerous patients for eye injuries sustained by exposure to lasers. [Scales Decl., para. 19].

Dr. Scales has reviewed the appropriate materials pertaining to this matter, including medical records from various health care providers, the declarations submitted with the moving papers, the operating manual for the Cytoflex Flow Cytometer at issue, photographs of the scene of the incident, and the deposition transcripts of the depositions of Colby Calvert. [Scales Decl., para. 20].

Dr. Scales indicates that he evaluated Colby Calvert in his office in February of 2021, took a patient history, a report of symptoms, and a report of the laser wavelengths and power of each laser the patient was exposed to and indicates that plaintiff’s “complaints were typical of individuals who have had laser exposure. I found his explanation and description of symptoms to be believable and credible.” [Scales Decl., paras. 21-26]. Dr. Scales examined plaintiff’s pupils/iris, extraocular muscle, visual field, intraocular pressure and the anterior and posterior of the eyes, and ordered several tests, including an OCT exam. [Scales Decl., para. 28]. Copies of the relevant images are attached, along with Dr. Scales’ report from the examination that date. [Scales Decl., Ex. 2].

Dr. Scales indicates that based on his examination, and as detailed in his report, he “diagnosed Mr. Calvert with W90.2XXA Exposure to laser radiation as a result of the 2/23/2019 exposure he sustained at Cal-Tech.” Dr. Scales reports the facts supporting his finding and conclusion:

“I concluded that he had ocular findings consistent with sub-threshold laser injuries. I concluded that the mild depressed HVF OS>OD, the hyperfluorescence on the Autoflourescence OD, the Hypoflourescence OD (indicative of choroidal injury) and hyperfluorescence OS (indicative of retinal injury) noted on the Angiogram, with low amplitude voltages noted on the mfERG were consistent with sub-threshold laser injury. The Autofluorescence and Angiographic findings supported and reinforced the affected areas found in the Fundus Photography images. “

[Scales Decl., para. 30].

Dr. Scales further concluded that the findings were “remarkable as they would not be expected to be present in an otherwise healthy 41-year-old male with no ocular/ophthalmic history,” and that his subsequent review of records, “ruled out genetic or macular degenerative conditions as a cause for the findings and symptomology.” [Scales Decl., paras. 31, 32].

Dr. Scales concludes, with respect to causation, “I concluded that all of the foregoing injuries/diagnoses were caused, in fact, by the 2/23/2019 laser exposure that Mr. Calvert described to me…” and that plaintiff’s “symptomology and behavioral complaints were consistent with the patients that I have treated in the past for laser eye injury and I concluded were also caused, in fact, by the 2/23/2019 laser exposure that Mr. Calvert described.” [Scales Decl., paras. 33, 34]. Dr. Scales indicates that the records of other providers show that plaintiff had never before exhibited the symptoms of laser eye injury prior to the subject exposure, and that Dr. Scales found “no medical evidence” supporting that the symptoms existed prior to the exposure. [Scales Decl., para. 35, 36]. Dr. Scales also indicates it is his opinion, “that more likely than not the injuries are permanent and will never fully resolve.” [Scales Decl., para. 38]. Dr. Scales states that all of his opinions are “to a reasonable degree of medical certainty.” [Scales Decl., para. 2].

The attached report is consistent with the declaration. [Scales Decl., Ex. 2].

This showing is sufficient to raise triable issues of material fact with respect to whether the claimed injuries were medically caused by the laser exposure. The motions as to these causes of action accordingly are denied. The motion by defendant Luong accordingly is denied in its entirety.

Defendants in the reply argue that the showing is not supported by sufficient evidence, and lacks foundation. The only specific argument is that there are certain photographs and a video referenced which are not attached. These items do not appear to be items upon which the court has relied to find triable issues of material fact have been raised. The fact also remains that while Dr. Scales is testifying as an expert, he is also a percipient treating physician, with his own personal knowledge of many of the facts Dr. Scales states he relied upon.

With respect to opinions of expert witnesses, Evidence Code § 801 provides:

“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.

(b) Based on matter (including his special knowledge, skill, experience, training and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”

(Emphasis added).

Both sides cite to Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, in which the California Supreme Court found that the trial court had properly rejected an expert’s trial testimony concerning lost profits as inadequately supported. The Court observed in connection with expert opinion testimony:

“[U]nder Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion. As we recently explained, “[T]he expert's opinion may not be based ‘on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors.... Exclusion of expert opinions that rest on guess, surmise or conjecture [citation] is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide?’

Sargon, at 770, quoting People v. Richardson (2008) 43 Cal.4th 959, 1008 (superseded by repeal of statute on other grounds in People v. Nieves (2021) 11 Cal.5th 404, 509.

The Court in Sargon noted that a ruling excluding or admitting expert testimony is reviewed for abuse of discretion. Sargon, at 773.

The Court further noted:

“The trial court's preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness. The court must not weigh an opinion's probative value or substitute its own opinion for the expert's opinion. Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. The court does not resolve scientific controversies. Rather, it conducts a “circumscribed inquiry” to “determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert's general theory or technique is valid.” (Imwinkelried & Faigman, supra, 42 Loyola L.A. L.Rev. at p. 449.) The goal of trial court gatekeeping is simply to exclude “clearly invalid and unreliable” expert opinion. (Black et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge (1994) 72 Tex. L.Rev. 715, 788.) In short, the gatekeeper's role “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”(Kumho Tire Co. v. Carmichael, supra, 526 U.S. at p. 152, 119 S.Ct. 1167.)

Sargon, at 772.

Here, the objected to declarations do not present speculation, but professionals willing to testify under oath concerning opinions which are supported by facts and supporting documentation or testimony which is submitted with the papers.

The evidentiary objections asserted with the reply, ruled upon separately below, do not change the analysis engaged in by the court as discussed in detail above. The motion on these causes of action is denied.

Third Cause of Action—Strict Product Liability—Motion by Beckman Coulter

Defendant Beckman Coulter in the alternative to summary judgment, seeks summary adjudication in its favor on the third cause of action for strict product liability on the grounds plaintiff will be unable to establish the element of that cause of action that a design or manufacturing defect exists which caused plaintiffs’ claimed injuries or that there were insufficient warnings rendering the product unsafe.

To establish a cause of action for strict product liability, plaintiff must allege and prove the following elements:

1. Defendant was a manufacturer or seller of a product which reached plaintiff without substantial change in its condition.

2. The product was used in the manner intended

3. Plaintiff was injured as a result of a defect in the product of which plaintiff was not aware, the defect making the product unsafe for its intended use.

Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62; Rawlings v. D.M. Oliver, Inc. (1979) 97 Cal.App.3d 890, 894.

SUMMARY ADJUDICATION ISSUE 21: The third cause of action for strict product liability – product design is barred as to defendant Beckman Coulter because the design of the CytoFLEX S was not defective.

Under CACI 1204, in connection with a product liability claim:

“[Name of plaintiff] claims that the [product]'s design caused harm to [name of plaintiff]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [manufactured/distributed/sold] the [product];

2. That [name of plaintiff] was harmed; and

3. That the [product]'s design was a substantial factor in causing harm to [name of plaintiff].

If [name of plaintiff] has proved these three facts, then your decision on this claim must be for [name of plaintiff] unless [name of defendant] proves that the benefits of the [product]'s design outweigh the risks of the design….”

In Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, the California Supreme Court recognized that to establish a product liability case:

“plaintiff must first establish some threshold exposure to a defendant’s asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.”

Rutherford, at 982, italics in original, footnote omitted.

As discussed above, there are triable issues of material fact with respect to whether plaintiff was in fact exposed to the lasers from the instrument designed, manufactured, and serviced by defendant Beckman Coulter, through its agents and employees, and whether that exposure caused injuries.

Defendant argues that plaintiff will be unable to establish that the design of the CytoFlex was defective. Defendant argues that plaintiffs have no evidence to support their primary theory that the instrument could not be serviced without removing a cover or disabling certain features so that lasers could escape while the machine was being serviced.

Defendant again relies on the declaration of its expert Dr. Lau, who, with respect to product defect, opines,

“I hold the following opinions to a reasonable degree of scientific certainty: … (3) the CytoFLEX S is not defectively designed with respect to plaintiffs’ claims; (4) the CytoFLEX S was not defectively designed with regard to laser safety control measures.”

[Lau Decl., para. 15].

Defendant argues that there is no way lasers could exit the device and cause injury to plaintiff as plaintiff claims, as the dichroic mirrors, printed circuit boards, and the turning mirror prevented the laser beam from exiting the boundaries of the instrument. Defendant relies on Dr. Lau’s declaration, which states:

“None of the primary laser beams exit the boundaries of the CytoFLEX S instrument. The instrument is equipped with an external system cover, a front panel, and an optical bench cover which serve as primary shielding. When the optical bench cover is removed, for example, during the process of laser alignment, the laser lights immediately power down via an interlock. The interlock can be disabled by an interlock defeat tool with an interlock defeat pin. Thereafter, the lasers can be turned on but additional shielding keeps the primary laser beam contained within the instrument. These additional shielding components consist of the dichroic mirrors, printed circuit boards, and the turning mirror. The dichroic mirrors, the printed circuit boards, and the turning mirror are additional mechanisms that prevent the primary laser beams from exiting the boundaries of the instrument.”

[Lau Decl., para. 6].

Lau also indicates that he conducted experiments on an exemplar instrument substantially equivalent to the subject instrument, which could be interpreted as indicating that accessible emissions did in fact occur, which somewhat undermines the testimony that no laser beam exited. Dr. Lau nevertheless testifies that:

“By design any laser light exiting the boundaries of the instrument would consist of diverging, non-collimated light. Therefore, the laser light between the optical bench area and 6 feet away would follow the inverse-square law of diverging sources and decrease in irradiance the farther the observer is from the laser origin. Hence, any observed light between these two points and any observed light farther than 6 feet away would also be non-hazardous.”

[Lau Decl., para. 9].

Defendant also relies on Dr. Lau’s opinion, discussed above, that any laser light that did escape would have been diffused or collimated, unless “via the placement of a foreign specularly reflective object into the primary beam pathway,” so would not be harmful, or would have not been directed at plaintiff’s eyes but at a lower point on his body. [Lau Decl., paras. 10-12].

As discussed above, plaintiffs’ experts have offered testimony concerning those opinions which raise triable issues of material fact concerning the dangerousness of the release of diffused laser light, as well as the probable diversion of that light off a reflective shelf in the laboratory. [Eldakouri Decl., paras. 2, 27-55; Tijerina Decl., paras. 10-13, 17].

In any case, plaintiffs’ experts in opposition to the motion also express opinions that the instrument was defectively designed, as during maintenance the Cytoflex unit was powered on, the protective shielding was removed, and the safety interlock feature was disabled, so that the four powerful lasers were powered on, producing diffuse or scattering hazardous laser radiation as a result, in violation of fundamental tenants of laser safety, and that harmful diffuse or scattered laser radiation emanates from dichroic mirror arrays in the subject instrument when the protective housing is removed upon bypassing interlocks. [Eldakouri Decl., para. 34-36; Tijerina Decl., para. 12., see also, photos submitted at Tijerina Decl., paras, 13, 17].

Triable issues of fact have been raised with respect to whether the subject instrument was defectively designed, causing the release of lasers during maintenance, and in turn causing plaintiff Colby Calvert’s injuries. The motion on this cause of action accordingly is denied.

Defendant in reply argues that plaintiffs have not in opposition to the motion addressed the issue of defect, but focus primarily on the negligence- based claims, essentially abandoning any product liability claims.

Under CCP § 437c (c)

“(c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”

(Emphasis added).

The court does not view the moving papers and opposition papers when viewed in their totality, and the evidence offered, and responses to the separate statement, as indicative of plaintiffs abandoning any of their claims.

SUMMARY ADJUDICATION ISSUE 22: The third cause of action for strict product liability – product design is barred as to defendant Beckman Coulter because the subject CytoFLEX S was not in a substandard condition and did not differ from the manufacturer’s design or specifications.

SUMMARY ADJUDICATION ISSUE 23: Any claim related to failure to warn in the third cause of action for strict product liability is barred because there is no causation between any purported failure to warn and Plaintiff’s alleged injury

Defendant Becker Coulter further argues that plaintiff cannot establish product liability based on a manufacturing defect theory or based on a failure to warn theory.

However, the SAC alleges a single cause of action for strict product liability.

Since triable issues of fact have been raised in connection with this cause of action on one alleged theory, defective design, as discussed above, the motion as to any other strict product liability theories would not dispose of the entire cause of action, which would continue to be viable on the defective design theory.

As set forth above, CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

These issues are evidently pursued in order to defeat all possible theories which could support the single cause of action for strict product liability. Since triable issues have been raised on one theory, defective design, the other theories need not be addressed.

The motion for summary adjudication on all issues is denied.

RULING:

Omnibus Defendant Hung Luong’s Motion for Summary Judgment is DENIED.

Defendant has failed to meet defendant’s initial burden of establishing that plaintiffs will be unable to establish that plaintiff Colby Calvert experienced an event of exposure to harmful lasers, as defendant has submitted evidence with the moving papers which supports a competing reasonable inference that such exposure occurred. [Campodonico Decl., para. 3, Ex. B, Calvert Depo. pp. 65-76].

Even if the burden had shifted to plaintiffs, plaintiffs in opposition have raised triable issues of material fact with respect to whether plaintiff Colby Calvert suffered exposure to harmful lasers. [Response to UMF Nos. 12, 17, 18, 21, and evidence cited, Additional Facts Nos. 1-5, and evidence cited, Eldakouri Decl., paras. 1-15, 19, 28-30, 35-55; Tijerina Decl., paras. 2-15, 17].

Plaintiffs have also raised triable issues of material fact with respect to whether the laser exposure caused plaintiff Colby Calvert injury. [Response to UMF Nos. 23, 24, 27, 30, and evidence cited, Additional Fact Nos. 6, and evidence cited, Scales Decl., paras. 1-17, 19, 20-26, 28, 30-36, 38, Ex. 2].

UNOPPOSED Omnibus Request for Judicial Notice in Support of Defendants Beckman Coulter, Inc. and Hung Luong’s Respective Motions for Summary Judgment or, in the Alternative, Summary Adjudication is GRANTED.

Defendant Beckman Coulter, Inc. and Hung Luong’s Omnibus Objections to Plaintiffs Evidence in Support of Opposition to Defendants’ Respective Motions for Summary Judgment or, In the Alternative, for Summary Adjudication:

Objection No. 16 is SUSTAINED only to the extent the date of exposure appears to be a typographical error, as the year was 2019, not 2021. Objection is otherwise OVERRULED.

Objection No. 48, subdivision (a) (ii) and (iii) and subdivision (b) (i) through (xx) are SUSTAINED. Objection No. 48 is otherwise OVERRULED.

Remaining objections are OVERRULED.

Defendant Beckman Coulter, Inc.’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication:

Motion for Summary Judgment is DENIED.

Plaintiffs have also raised triable issues of material fact with respect to whether the laser exposure caused plaintiff Colby Calvert injury. [Response to UMF Nos. 23, 24, 27, 30, and evidence cited, Additional Fact No. 6, and evidence cited, Scales Decl., paras. 1-17, 19, 20-26, 28, 30-36, 38, Ex. 2].

Motion for Summary Adjudication:

Motion is DENIED.

Plaintiffs have raised triable issues of material fact with respect to whether there was a design defect in the subject instrument which caused plaintiff Colby Calvert injuries. [Response to UMF Nos. 152, 153, 159, 160, and evidence cited, Eldakouri Decl., paras. 2, 27-55; Tijerina Decl., paras. 10-13, 17, see also, photos submitted at Tijerina Decl., paras, 13, 17; Scales Decl., paras. 2, 30-36, 38, Ex. 2].

Motion is DENIED. In light of the ruling above that triable issues have been raised with respect to the existence of a design defect, the subject issues do not completely dispose of a cause of action as required under CCP § 437c(f)(1).

Objection No. 16 is SUSTAINED only to the extent the date of exposure appears to be a typographical error, as the year was 2019, not 2021. Objection is otherwise OVERRULED.

Objection No. 48, as to subdivision (a) (ii) and (iii) and subdivision (b) (i) through (xx) are SUSTAINED. Objection No. 48 is otherwise OVERRULED.

Remaining objections are OVERRULED.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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