Opinion
Civil Action No. 95-1299-MLB
May 28, 1999
MEMORANDUM AND ORDER
This matter is before the court on defendants' motions for summary judgment (Docs. 29 and 31). In ruling on the motions, the court considered all relevant documents including, but not limited to, defendant Stuart Medical Company's ("Stuart") motion and supporting memorandum (Docs. 29 and 30), Sofamor's motion and supporting memorandum (Docs. 30 and 31), plaintiff's response (Doc. 37), Stuart's reply (Doc. 41) and Sofamor's reply (Doc. 40). Both Stuart and Sofamor incorporate the others arguments in their respective motions for summary judgment.
The remaining four defendants are collectively referred to in this memorandum as "Sofamor." There is apparently some connection between the corporations, and no distinction is made in the context of their joint motion for summary judgment or plaintiff's response.
I. NATURE OF THE CASE
Plaintiff initially filed this products liability case against defendants in June 1995 for injuries allegedly resulting from the use of a Cotrel Dubousset internal fixation system ("CD System") in a surgical procedure to fuse two vertebrae in her spine. Plaintiff claims the CD System was unreasonably dangerous and defectively designed; defendants failed to disclose the hazards of using the device in a person of plaintiff's age and failed to warn plaintiff of the dangers and risks associated with the device; defendants failed to warn plaintiff's physician of the dangers and risks associated with the device; defendants failed to withdraw the device after discovering the dangers associated with it; and finally, defendants failed to instruct physicians on obtaining informed consent from potential CD System candidates.
Under the Kansas Product Liability Act ("KPLA"), plaintiff's numerous theories of defendant's legal liability are merged into one legal theory called a "product liability claim." See Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 756, 861 P.2d 1299 (1993). The KPLA applies to all actions "based on strict liability in tort as well as negligence, breach of express or implied warranty, and breach of or failure to discharge a duty to warn or instruct." Savina v. Sterling Drug, Inc., 247 Kan. 105, 126, 795 P.2d 915 (1990).
In a transfer order dated July 10, 1995 (Doc. 2). this case was transferred to the United States District Court for the Eastern District of Pennsylvania for consolidation of pretrial matters with numerous other products liability cases involving spinal fixation instrumentation. See In Re: Orthopedic Bone Screw Products Liability Litigation, MDL No. 1014. On January 12, 1998, the court handling the consolidated pretrial proceedings issued its final pretrial order, 1998 WL 118060 (PTO 1235), in preparation for remanding the consolidated cases to their courts of origin. (Doc. 13). Following completion of the pretrial proceedings, this case was remanded and reopened for further proceedings in this court. (Doc. 12). The court has jurisdiction of this matter pursuant to 28 U.S.C. § 1332.
II. SUMMARY JUDGMENT STANDARDS
The usual and primary purpose "of the summary judgment rule is to isolate and dispose of factually unsupported. claims or defenses.Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Fed.R.Civ.P. 56(c) directs the entry of summary judgment in favor of a party who "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." An issue is "genuine" if sufficient evidence exists on each side "so that a rational trier of fact could resolve the issue either way" and "[a]n issue is `material' if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores. Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citations omitted).
The moving party initially must show both an absence of a genuine issue of material fact, as well as entitlement to judgment as a matter of law.See id. at 670. The nature of the showing depends upon whether the movant bears the burden of proof at trial with the particular claim or defense at issue in the motion. If the nonmoving party bears the burden of proof, the movant need not "support its motion with affidavits or other similar materials negating the opponent's" claims or defenses. Celotx, 477 U.S. at 323 (emphasis in original). Rather, the movant can satisfy its obligation simply by pointing out the absence of evidence on an essential element of the nonmovant's claim. Adler, 144 F.3d at 671 (citing Celotex, 477 U.S. at 325). On the other hand, if the movant has the burden of proof on a claim or defense raised in a summary judgment motion, it must show that the undisputed facts establish every element of the claim or defense. See e.g., United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc).
Once the moving party properly supports its motion, the burden shifts to the nonmoving party, "who may not rest upon the mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Muck v. United States, 3 F.3d 1378, 1380 (10th Cir. 1993). In setting forward these specific facts, the nonmovant must identify the facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Adler, 144 F.3d at 671. If the evidence offered in opposition to summary judgment is merely colorable or is not significantly probative, summary judgment may be granted. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 533 (10th Cir. 1994) A party opposing summary judgment "cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir. 1988), aff'd 939 F.2d 910 (10th Cir. 1991). Put simply, the nonmoving party must "do more than simply show there is some metaphysical doubt as to the material facts."Matsushita Elec. Indus. Co. v. Zenith Radio Corp, 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).
Certain rules govern the presentation of facts and evidence. Local Rule 56.1 requires the movant to set forth a concise statement of material facts. D. Kan. Rule 56.1. Each fact must appear in a separately numbered paragraph and each paragraph must refer with particularity to the portion of the record upon which the movant relies. Id. An opposing memorandum must contain a similar statement of facts. The opponent must number each fact in dispute, refer with particularity to those portions of the record upon which it relies and, if applicable, state the number of the movant's fact which is in dispute. The court may, but is not obligated to, search for and consider evidence in the record that would rebut the movant's evidence, but that the opponent has failed to cite. Adler, 1998 WL 247700, at *5. "All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party."Id. (emphasis added); See Gullickson v. Southwest Airlines Pilots' Ass'n, 87 F.3d 1176, 1183 (10th Cir. 1996) (applying local rules of District of Utah). A standing order of this judge also precludes drawing inferences or making arguments within the statement of facts.
Plaintiff has attached several lengthy documents to her response. One is a 230 page brief filed by "Plaintiffs' Legal Committee" in the MDL proceedings. Plaintiff makes no effort to explain why the brief is admissible in this summary judgment proceeding, nor does she explain why any portion thereof is relevant to issues presently before the court. A party cannot satisfy her burden at summary judgment merely by flooding the record with paper.
The parties need not present evidence "in a form that would be admissible at trial, but the content or substance of the evidence must be admissible. For example, hearsay testimony that would be inadmissible at trial may not be included . . . ." Thomas v. Int'l Bus. Machines, 48 F.3d 478, 485 (10th Cir. 1995) (internal quotations and citations omitted). Similarly, the court will disregard conclusory statements and statements not based on personal knowledge. Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1382 (10th Cir. 1994) (regarding conclusory statements); Gross v. Rurggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995) (requiring personal knowledge).
The admissibility of the opinions of plaintiff's designated experts has not been presented for decision. However, based upon its review of the materials presented, the court certainly would expect a vigorous argument by defendants that all or part of the opinions do not meet the standards laid down in Kumho Tire Co. Ltd. v. Carmichael, 119 S.Ct. 1167 (1999), and Mitchell v. Gencorp Inc., 165 F.3d 778 (10th Cir. 1999).
In the end, the court must determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Accordingly, the court must review the "factual record and reasonable inferences therefrom in the light most favorable to the nonmoving/opposing party." Kidd v. Taos Ski Valley. Inc., 88 F.3d 848, 851 (10th Cir. 1996); Anderson, 477 U.S. at 255, 106 S.Ct. at 2514. If sufficient evidence exists on which a trier of fact could reasonably find for the non-moving party, summary judgment is inappropriate. Prenalta Corp. v. Colorado Interstate Gas Co., 944 F.2d 677, 684 (1991).
III. FACTS
Plaintiff is a female who has a history of recurrent back problems, including hospitalization and treatment by numerous physicians, which began as early as 1989. (Doc. 32 at 7, ¶¶ 2, 3, 4; Doc. 37 at 2, ¶¶ 2, 3, 4). Prior to 1992, plaintiff's back problems were intermittent, and she was apparently able to maintain regular employment. However, in the summer of 1992, she injured her back while working as the food and beverage director of a local golf course. (Doc. 32 at 8, ¶¶ 5, 6 and Ex. E at 20). Following her injury at the golf course, plaintiff was referred to Robert Eyster, M.D., for diagnosis and treatment. (Doc. 32, Ex. K). Initially, Dr. Eyster prescribed medication for plaintiff's pain, sent her to physical therapy and directed her to remain off work. (Doc. 32, Ex. K and L). Dr. Eyster later ordered an MRI study of plaintiff's back and diagnosed a herniated disk at L5-S1. (Doc. 37 at 8, ¶ 8) The condition caused plaintiff considerable pain and confined her to bed several times per week. (Doc. 32 at ¶ 9 and Ex. N). Despite the pain and discomfort, plaintiff originally chose to take medication, do her physical therapy and refrain from bending, twisting and repetitive lifting in order to treat the herniated disk. (Doc. 32, Ex. M). However, plaintiff later elected to undergo surgery to fuse two vertebrae in her spine which was performed by Dr. Eyster on June 22, 1993. (Doc. 32 at 9, ¶¶ 13 and 14).
During the surgery, Dr. Eyster implanted a CD System in plaintiff's back to assist in the fusion of the vertebrae. The CD System is one of many spinal fixation devices used during spinal fusion surgeries as an internal splint to immobilize vertebrae while the fusion process occurs. Based on the court's understanding, the device involved in this litigation requires the insertion of two stainless steel rods parallel to the spine which are attached to the vertebrae to be fused. Attachment of the rods is accomplished by inserting screws in the pedicles. According to Dr. Eyster, the surgery resulted in a successful fusion. (Doc. 32 at 9, ¶ 15).
In his deposition, Dr. Eyster testified there was no indication that plaintiff's CD System fractured, bent, shifted to any significant extent, or failed in any other way. (Doc. 30, Ex. 3 at 33). According to plaintiff and her expert, the fusion was not successful because of the continued pain, "grinding" and "catching" plaintiff continues to experience. (Doc. 37 at 5, ¶ 12).
Although there is apparently successful fusion of plaintiff's vertebrae, she claims the CD System causes her pain and limits the physical activity she was capable of performing prior to the surgery. (See Doc. 37, attached MDL questionnaire, "Individual Information" at 3, and "Schedule B" at 2). Specifically, she alleges the CD System caused disfigurement, excruciating pain, loss of bladder and bowel control, and difficulty standing, walking and flexing. (Doc. 3 at 5, ¶ 19). Dr. Eyster suggested that plaintiff have the CD System removed to alleviate the pain she describes because her body may be rejecting the device. (Doc. 32, Ex. E at 212-14). However, plaintiff is too scared to undergo another surgery because she feels further injury may result from the procedure. (Doc. 37 at 11).
IV. DISCUSSION AND ANALYSIS
The exact theories of recovery relied upon by plaintiff in her products liability case are not entirely clear from her complaint. However, in a products liability case seeking recovery under theories of negligence, breach of an implied warranty of merchantability and strict liability, a plaintiff must prove three common elements: "(1) [t]here must be a defective product; (2) the defect must have existed at the time the product left the manufacturer's possession or control; and (3) the defect must have caused the injury sustained by the plaintiff." Voelkel v. General Motors Corp., 846 F. Supp. 1468, 1476 (D. Kan. 1994) (quotingLane v. Redman Mobile Homes, Inc., 5 Kan. App. 2d 729, Syl. ¶ 2, 624 P.2d 984 (1981)).
These elements may be proven inferentially, by either direct or circumstantial evidence. For circumstantial evidence to make out a prima facie case, it must tend to negate other reasonable causes, or there must be an expert opinion that the product was defective. Because liability in a products liability action cannot be based on mere speculation, guess or conjecture, the circumstances shown must justify an inference of probability as distinguished from mere possibility.See id. (quoting Mays v. Ciba-Geigy Corp., 233 Kan. 38, 54, 661 P.2d 348 (1983)). Defendants claim they are entitled to summary judgment because there is an absence of evidence establishing that the CD System is defective or that it caused plaintiff's injuries.
A. DEFECTIVE PRODUCT
Under Kansas law, "every products liability action must be based on a defective condition in the product, regardless of the theory of recovery." Meyerhoff v. Michelin Tire Corp., 70 F.3d 1175, 1181 (10th Cir. 1995). "A product is `defective' when it leaves the seller's hands in a condition not contemplated by the ultimate consumer and as a consequence of such condition will be unreasonably dangerous to the consumer." Lenherr v. NRM Corp., 504 F. Supp. 165, 172 (D. Kan. 1980) (defining "defective" in a strict liability case). A product may be defective in design or in the manner in which it is manufactured. See Meyerhoff, 70 F.3d at 1181. A product may also be defective if it is unaccompanied by adequate warnings of its dangerous conditions. See id.
With respect to the device's design or manufacturing, defendants claim summary judgment is proper because there is no evidence that the CD System "failed, broke, bent, snapped, decayed" or was in some other way defective. (Doc. 32 at 12). In support of their argument, defendants point out Dr. Eyster's deposition testimony that the CD System did not fail in any manner, doc. 32, ex. O at 33, plaintiff's own admission that a physician has never informed her of the device's failure, doc. 32, ex. E at 212, and Lance O. Yarus's, D.O., opinion that plaintiff's physical symptoms are attributable to the CD System, not that the device is defective.
Plaintiff claims there is evidence of a defect based on the report of Harold Alexander, Ph.D. (Doc. 37 at 15-19). The court disagrees. Dr. Alexander's report fails to provide any evidence, amounting to more than speculation or conjecture, that the CD System is defective or unreasonably dangerous. The report offers little more than a general discussion on spinal fixation instrumentation including Dr. Alexander's opinion that there is insufficient evidence that such devices are more effective or safer than spinal fusion without the use of instrumentation. Moreover, his reference to the actual instrumentation at issue in this case is limited to: 1) a recognition that the device creates an increased risk for stress induced osteoporosis and diminution in bone density, late screw migration, screw toggling, screw cutout and bony changes that can cause nerve damage, and mechanical component failure; 2) an assertion that defendants did not appropriately test the CD System prior to its introduction; and 3) his opinion that the lack of testing of the CD System requires a "presumption" that it is unsafe.
From this limited information concerning the CD System, there is no basis for a jury to conclude that the device is defective. First, the report does not indicate any particular type of structural or mechanical failure in the CD System nor identify any flaw in the device's design. Second, Dr. Alexander's unsupported presumption that the device is unsafe does not rise to proof that the product is unreasonably dangerous in anyway nor create an issue for trial. Finally, Dr. Alexander's general concern against the use of pedicle screw procedures has been rejected by numerous courts as an insufficient basis for finding a defect in a particular spinal instrumentation device. See, e.g., McCarthy v. Danek Med., Inc., 1999 WL 262097, at *3 (E.D. La. Jan. 5, 1999) ("The generalities urged against the pedicle screw procedures offered by plaintiffs' expert, Dr. Alexander, have been rejected time and again by various courts which found him unqualified to offer an opinion or rejected his conclusions finding that they did not prove a design defect"); see also Baker v. Danek Med., 35 F. Supp. 875, 881 (N.D. Fla. 1998) ("In any event, Dr. Alexander's testimony still does not touch upon at all what it is that is defective about the defendants' products. . . . Several courts around the country addressing summary judgment motions by Danek have held that Dr. Alexander's report does not create a triable issue of fact"). Similarly, Dr. Alexander's report in this case fails to raise an inference of probability that the CD System is defective.
Alexander states: "until this device is adequately tested for pedicular fixation, it must be assumed it is unsafe . . . ." Even if Alexander could qualify as an expert (which is quite another issue) the court questions whether this opinion would be admissible. There is no legal basis for such an assumption. On the contrary, Kansas law requires a plaintiff to prove that the product is defective and such proof cannot be satisfied by an opinion that the product should be assumed "unsafe."
B. FAILURE TO WARN
Plaintiff also claims the CD System is defective because defendants did not provide adequate warnings of the risks associated with its use. As discussed earlier, a product may also be defective if it is unaccompanied by adequate warnings of its dangerous conditions. Defendants argue they had no duty to warn plaintiff of any alleged dangerous side effects or risks associated with the device under the learned intermediary doctrine. The learned intermediary doctrine, which Kansas has adopted, provides that a drug manufacturer's "duty to warn is satisfied when the prescribing doctor is informed of a drug's inherent risks." Nichols v. Central Merchandise, Inc., 16 Kan. App. 2d 65, 67, 817 P.2d 1131, 1133 (1991). The Kansas Supreme Court explained the rationale for the rule inHumes v. Clinton, 246 Kan. 590, 792 P.2d 1032 (1990).
The reasons for this rule should be obvious. Where a product is available only on prescription or through the services of a physician, the physician acts as a "learned intermediary' between the manufacturer or seller and the patient. It is this duty to inform himself of the qualities and characteristics of those products which he prescribes for or administers to or uses on his patients, and to exercise an independent judgment, taking into account his knowledge of the patient as well as the product. The patient is expected to and, it can be presumed, does place primary reliance upon that judgment. The physician decides what facts should be told to the patient. Thus, if the product is properly labeled and carries the necessary instructions and warnings to fully apprise the physician of the proper procedures for use and the dangers involved, the manufacturer may reasonably assume that the physician will exercise the informed judgment thereby gained in conjunction with his own independent learning, in the best interest of the patient. It has also been suggested that the rule is made necessary by the fact that it is ordinarily difficult for the manufacturer to communicate directly with the consumer.Id. at 602, 792 P.2d at 1040 (quoting Terhune v. A.H. Robins Co., 577 P.2d 975, 978 (Wash. @@1978)). The test for the adequacy of the manufacturer's warning to the physician "is whether the warning is `reasonable under the circumstances.'" Id. at 606, 792 P.2d at 1043. Kansas state courts have not applied the doctrine in the context of spinal fixation devices, but, if the issue were before the Kansas Supreme Court, the court finds the doctrine would be interpreted to cover a products liability case involving them. See, e.g., id. (applying the doctrine to intrauterine devices (IUDs)).
For this reason, plaintiff's failure to warn claim turns entirely on 1) whether warnings were provided to Dr. Eyster and 2) whether the warnings were sufficient. Defendants claim adequate warnings were provided in a package insert included with the CD System. (Doc. 32 at 8-9, ¶ 12). Plaintiff disagrees and claims there is a genuine issue as to whether Dr. Eyster received the package insert. (Doc. 37 at 21-22). Plaintiff relies on Dr. Eyster's deposition testimony that he never received any educational material, including a videotape, seminar, presentation, brochure, book, or article, on the device before he began using it. (Doc. 32, Ex. O at 49-51). Plaintiff's argument is unavailing; Dr. Eyster's statement does not create a jury question as to whether he received a package insert. Dr. Eyster was not asked at all about the package insert specifically nor generally about whether he was ever provided product warnings. To defeat summary judgment, plaintiff must set forth specific facts to show there is a genuine issue, not present evidence which is merely colorable or suspicious. See Cone, 14 F.3d at 533.
Plaintiff's claim that Dr. Eyster failed to inform her of the risks associated with the CD System is irrelevant. The allegation does not create an issue for the jury as to whether Dr. Eyster received any information concerning warnings; they are two separate subjects.
As to the adequacy of the warnings, plaintiff barely mentions the subject in her response. Apparently, she contends there is a genuine issue regarding their adequacy by making a generic reference to reports prepared by Stephen E. Kimmel, M.D., and Dr. Alexander, and a letter from Norman Welford, M.D. Based on these documents, she claims the warnings were insufficient to apprise patients of the CD System's potential risks and complications. (Doc. 37 at 23). Exactly how the reports demonstrate this, or which portions of the reports plaintiff relies upon, is not identified in her response. The documents referenced constitute over thirty pages in the record and are, for the most part, hardly related to product warnings. Pursuant to Rule 56(e), a party opposing summary judgment must set forth "specific facts" showing there is a genuine issue for trial. The reference to the documents is a far cry from setting forth anything specifically, and the court is not obligated to search through them, nor is it required to make plaintiff's case for her. See, e.g., Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998) (discussing the court's wariness to comb through the record to make a party's case because of the neutral and limited role courts should play in the adversarial process); SEC v. Thomas, 965 F.2d 825, 827 (10th Cir. 1992) (a court need not "sift through" the record to find support for the claimant's argument). Plaintiff fails to meet her burden of presenting a genuine issue as to the adequacy of the warnings for this reason alone.
If it were possible, the court would provide citations to the documents and exhibits included in plaintiff's response that are referenced in this order. However, the form of plaintiff's brief does not lend itself to citation. Plaintiff's attorney has merely included numerous documents in an unorganized manner without any subdivision.
Nevertheless, the court reviewed the documents and concludes they contain nothing that creates a genuine issue for trial. First, the letter by Dr. Welford has nothing to do with the content of the warnings included in the CD System package insert nor with the device itself. Second, the report by Dr. Kimmel is actually an affidavit prepared and submitted to the MDL court in reference to a separate defendant's motion for summary judgment. It has nothing to do with plaintiff's individual case and only contains a reference to the CD System in one paragraph, which has nothing to do with CD System warnings. Finally, Dr. Alexander's report is also totally devoid of any discussion concerning the device's warnings. For these reason, there is no basis for a jury to conclude that the warnings were not "reasonable under the circumstances," and summary judgment on plaintiff's failure to warn claim is appropriate.
Furthermore, the court fails to see the relevance of the letter; it is addressed to an attorney who has nothing to do with plaintiff's case, has nothing to do with plaintiff's alleged injuries, nor does it even discuss the content of any spinal implementation warnings in general.
C. CAUSATION
Defendants also claim they are entitled to summary judgment on plaintiff's product liability claims because there is no evidence that a CD System defect caused plaintiff's injuries. In particular, defendants challenge Dr. Yarus's report in which he concludes:
It is my opinion to a reasonable degree of medical certainty that it is more probably true than not true that [plaintiff's back condition and various symptoms] are all casually related and caused directly by the pedicle screw and rod fixation assembly which has been implanted in her body. But for the presence of this device, she would not have had these symptoms and disabilities to the extent that she has experienced and reported.
The court assumes Dr. Yarus means "causally" related.
(Doc. 32, Ex. S at 2). Plaintiff, relying on Dr. Yarus's opinion and her own deposition testimony that Dr. Eyster informed her that the CD System was causing her pain, claims there is a genuine issue regarding causation. (Doc. 37 at 17-18).
Under the KPLA, regardless of the theory of recovery, proof that a defect in a product caused a claimant's injury is prerequisite to recovery. See Miller v. Lee Apparel Co., Inc., 19 Kan. App. 2d 1015, 1032, 881 P.2d 576. 589 (1994). Proof of injury during the use of a product alone is insufficient to establish the causation requirement.Duffee v. Murray Ohio Mfg. Co., 879 F. Supp. 1078, 1083 (D. Kan. 1995). Despite plaintiff's arguments, she has failed to set forth specific facts showing there is a genuine issue of causation. Dr. Yarus's report contains nothing more than a conclusory statement that the CD System is the cause of plaintiff's symptoms and pain. See Cole, 43 F.3d at 1382 (recognizing that conclusory statements are insufficient to defeat summary judgment). He fails to identify any particular defect in the CD System, discuss the reasons for his conclusion, provide any explanation of how the device induces the pain or symptoms that plaintiff allegedly suffers, or establish any link in general between a defect and plaintiff's condition. In sum, there is no evidence which would permit the jury to conclude that a defect caused plaintiff's condition. D. DUTY TO RECALL
Plaintiff's reliance on her own deposition testimony that Dr. Eyster informed her that the device caused her condition is similarly misplaced. To begin, it is nothing more than a conclusory statement suffering from the same problems identified in relation to Dr. Yarus's report. The statement is also inadmissible hearsay. See Thomas, 48 F.3d at 485 (the content or substance of evidence submitted in support of or opposition to a motion for summary judgment must be admissible).
In addition to her other claims, plaintiff's complaint contains an allegation that defendants failed to withdraw the CD System from the market after discovering its dangerous nature. Defendants claim they have no duty to recall products under Kansas law and are entitled to summary judgment on the issue. See, e.g., Patton v. Hutchison Wil-Rich Mfg. Co., 253 Kan. 741, 763-64, 861 P.2d 1299, 1315-16 (1993). Because plaintiff fails to address the issue in her response, the court grants defendants' motions for summary judgment on plaintiff's failure to recall claim.
V. CONCLUSION
Plaintiff has failed to set forth specific facts showing there is a genuine issue that the CD System was defective or caused her injuries. Proof of a defective product and proof that the defect caused a claimant's injuries are prerequisites to recovery in a products liability claim under Kansas law. Thus, defendants' motions for summary judgment (Docs. 29 and 31) on plaintiff's product liability claims are granted. Moreover, defendants are entitled to summary judgment on any claim by plaintiff based on a failure to recall the CD System.
A motion for reconsideration of this order is not encouraged. Any such motion shall not exceed five pages and shall strictly comply with the standards enunciated by this court in Comeau v. Rupp, 810 F. Supp. 1172, 1174 (1992). The response to any motion for reconsideration shall not exceed five pages. No reply shall be filed.
IT IS SO ORDERED.