Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. GC034390, Jan A. Pluim, Judge.
Zuber & Taillieu, Jeffrey J. Zuber, Olivier A. Taillieu, Albert T. Wu and Laura D. Castner for Plaintiff and Appellant.
Tucker Ellis & West, Michael C. Zellers, Mollie F. Benedict, Dylan M. Carson and Rebecca A. Lefler for Defendant and Respondent.
KLEIN, P. J.
Plaintiff and appellant Kenneth Zammitt (Zammitt) appeals a judgment following a grant of summary judgment in favor of defendant and respondent Ethicon Endo-Surgery, Inc. (Ethicon).
In this action for strict products liability and negligence in products liability, the trial court granted summary judgment in favor of Ethicon, ruling (1) there was no evidence its product, a medical laser, was defective and (2) Zammitt’s injuries were not caused by Ethicon’s product.
We reverse. We conclude the trial court erred in determining the product was not defective because that issue was not properly before the trial court. Ethicon moved for summary judgment solely on the ground of a lack of causation. Ethicon’s motion for summary judgment neither argued, nor presented any evidence, that the laser was not defective. Therefore, Zammitt was not obligated to raise a triable issue as to defect in order to resist Ethicon’s motion for summary judgment. Accordingly, the trial court erred in addressing the issue of defect and in partially basing its grant of summary judgment on that ground.
Further, the summary judgment cannot be upheld on the alternative ground that Ethicon negated the essential element of causation because a triable issue of material fact exists as to whether Ethicon’s allegedly defective laser either caused or contributed to Zammitt’s injury.
Therefore, the judgment is reversed.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Zammitt sought treatment from Dr. Jamie Corvalan for prostate problems. On October 15, 2003, Dr. Corvalan performed a laser prostatectomy on Zammitt, which was a minimally invasive procedure to remove part of his prostate gland. In the course of the surgery, Dr. Corvalan utilized an Indigo laser system manufactured by Ethicon.
Dr. Corvalan is not a party to this appeal. His motion for summary judgment was denied.
Three days later, on October 18, 2003, Zammitt reported to a hospital for numerous complaints and was admitted for evaluation. On October 19, 2003, Zammitt underwent surgery performed by Dr. Philip Biderman, during which time it was discovered that Zammitt’s colon was perforated.
2. Proceedings.
a. Pleadings.
After commencing this action on October 14, 2004, Zammitt filed the operative first amended complaint on September 6, 2005, against Dr. Corvalan and Ethicon. Zammitt pled causes of action against Dr. Corvalan for medical malpractice and lack of informed consent, and against Ethicon for strict products liability and negligence in products liability, alleging the laser equipment (the product) manufactured and distributed by Ethicon was defective.
b. Motions for summary judgment.
Both Dr. Corvalan and Ethicon moved for summary judgment.
Dr. Corvalan argued he complied with the standard of care in rendering treatment to Zammitt and that nothing about his conduct caused injuries or damages to Zammitt.
Ethicon sought summary judgment on the sole ground that Zammitt “cannot demonstrate a triable issue of fact to establish causation for his strict liability and negligence causes of action against [Ethicon].”
Causation is an essential element of a strict products liability cause of action as well as a negligence action. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)
Ethicon’s motion was supported by the expert declaration of Charles Best, M.D. Dr. Best’s declaration rendered the following opinion regarding causation: “It is my opinion the perforation of Mr. Zammitt’s proximal sigmoid colon could not to a reasonable degree of medical probability have been caused by the Indigo laser treatment performed by Dr. Corvalan on October 15, 2003. My opinion is based on the fact that the location of the proximal sigmoid colon is remote from the location where the Indigo laser energy was applied to the prostate gland, and that if the Indigo laser had caused damage, there would be evidence of injury to the bladder and structures in between the prostate and the proximal sigmoid colon; none of which was found by Dr. Biderman during surgery on October 19, 2003.”
Thus, the Best declaration merely addressed whether the Dr. Corvalan’s laser treatment could have caused the injury, not whether the laser equipment could have caused the injury.
In further support of its motion, Ethicon submitted portions of the deposition transcript of Dr. Biderman, the surgeon who discovered Zammitt’s perforated colon on October 19, 2003. Dr. Biderman’s postoperative diagnosis attributed the perforation in the sigmoid colon to diverticulitis.
c. Zammitt’s opposition.
Zammitt’s opposition papers were supported by the expert declaration of Stanley A. Brosman, M.D., a clinical professor in the department of urology at UCLA Medical School. Dr. Brosman stated he is very familiar with the Indigo laser device at issue in this litigation and that he has used it many times on his own patients for the treatment of benign prostatic hyperplasia.
With respect to causation, Dr. Brosman opined as follows: “[T]he perforation of Mr. Zammitt’s proximal sigmoid colon was to a reasonable degree of medical probability caused by the Indigo laser treatment performed by Dr. Corvalan on October 15, 2003. My opinion is based on the fact that the type of injury, specifically the perforation of the sigmoid colon, can be anticipated if the probe is inadvertently passed through the prostate and into the colon. The probe is extremely sharp – the laser need not even be turned on to cause this type of puncture injury. Furthermore the timing involved regarding the Indigo laser treatment performed by [Dr. Corvalan], the misplacement of the probe, and the immediate and predictable onset of symptoms indicate the causal nature of the injury. [¶] 24. Contrary to the declaration of [Dr. Best], it is far more likely that [Dr. Biderman] did not find any damage to the intervening tissue because he was simply not looking for it, and a tiny puncture to intervening tissue caused by the probe is easily overlooked if the operating surgeon is not specifically looking for it – a very predictable outcome for a surgeon not familiar with the nature of the Indigo laser treatment. [¶] 25. Perhaps most importantly, the Pathology Report . . . shows no indication of diverticulitis despite the diagnosis of [Dr. Biderman]. The Operative Report of [Dr. Biderman] likewise contains none of the findings consistent with diverticulitis. This is particularly telling since, if diverticulitis was the cause of the perforation to Mr. Zammitt’s sigmoid colon, the colon tissue surrounding the perforation would be inflamed and easily recognized by the operating surgeon [Dr. Biderman]. Such inflammation is far more recognizable than any tiny puncture of intervening tissue between the colon and the bladder caused by the Indigo laser probe. [¶] 26. Finally, examination of Mr. Zammitt by Peter P. Chow, M.D. on December 15, 2003, . . . indicates that ‘[n]o significant diverticulitis is noted.’ This is merely two months after his operation by [Dr. Biderman].”
Zammitt’s opposition papers contended the declaration of Dr. Brosman was sufficient to present the reasonably probable causal connection between the laser surgery and his perforated colon, and because “the causal connection between the use of the Indigo® laser and the injury to Plaintiff Zammitt was the only issue raised in Defendant Ethicon’s moving papers, summary judgment is improper in this case.”
d. Ethicon’s reply.
In its reply papers, Ethicon criticized Dr. Brosman’s declaration, arguing his assumptions of laser misplacement were not supported by the evidence, and that Zammitt could not prove causation “based solely upon a temporal connection between Plaintiff’s prostate surgery and his subsequent colon surgery.”
e. Trial court’s ruling.
On November 15, 2006, the motions of Ethicon and Dr. Corvalan came on for hearing.
The trial court granted summary judgment in favor of Ethicon, ruling as follows: “The Court finds that the declaration of Charles Best, M.D. establishes to a reasonable medical probability that [Zammitt’s] injuries were not caused by [Ethicon’s] laser. The Court also finds that [Zammitt] has failed to present evidence of a defect in [Ethicon’s] laser that caused or contributed to the perforation of plaintiff’s colon. Accordingly, [Ethicon] is entitled to judgment as a matter of law[.]”
As to Dr. Corvalan, summary judgment was denied. The trial court ruled “there are triable issues of material fact whether Dr. Corvalan’s medical care and treatment fell below the applicable standard of care and whether Dr. Corvalan’s use of the Indigo Laser caused plaintiff’s injury.” (Italics added.)
We note the tension between the trial court’s finding a question of fact as to “whether Dr. Corvalan’s use of the Indigo laser caused [Zammitt’s] injury,” and its finding no triable issue of fact as to whether Ethicon’s laser caused or contributed to Zammitt’s injury.
Zammitt filed a timely notice of appeal from the judgment in favor of Ethicon.
CONTENTIONS
Zammitt contends: due process requires a court to first provide notice and an opportunity to present evidence before granting summary judgment on grounds not raised by the moving party; because Ethicon failed to argue or present evidence that a defect did not exist within the subject surgical laser, Ethicon failed to meet its burden to justify a judgment in its favor on the ground of lack of defect; and even if manufacturing or design defect had been raised as an issue, a triable issue of material fact exists as to defect and causation based on the evidence presented by Zammitt.
In its respondent’s brief, Ethicon contends “Zammitt has not argued that the trial court’s findings regarding causation were in error.” There is no merit to Ethicon’s assertion. Zammitt duly raised the issue of causation in his opening brief, at page 17 et seq.
DISCUSSION
1. Standard of appellate review.
Summary judgment “motions are to expedite litigation and eliminate needless trials. [Citation.] They are 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.’ [Citations.]” (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590.)
A defendant meets its burden upon such a motion by showing one or more essential elements of the cause of action cannot be established, or by establishing a complete defense to the cause of action. (Code Civ. Proc., §437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Once the moving defendant has met its initial burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Ibid.)
We review the trial court’s ruling on a motion for summary judgment under the independent review standard. (Rosse v. DeSoto Cab Co. (1995) 34 Cal.App.4th 1047, 1050.)
Here, the trial court granted summary judgment in favor of Ethicon on two grounds: there was no evidence the laser was defective, and Zammitt failed to present evidence that a defect in the laser caused or contributed to the perforation of his colon. We address these grounds seriatim.
2. Trial court erred in determining the product was not defective; that ground was not raised by Ethicon in its moving papers.
a. General principles.
A “basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief. Code of Civil Procedure section 1010 requires that a notice of motion must state ‘the grounds upon which it will be made.’ [Former] California Rules of Court, rule 311 [current rule 3.1110)(a)] requires a notice of motion to state in its opening paragraph ‘the nature of the order being sought and the grounds for issuance of the order.’ As a general rule, the trial court may consider only the grounds stated in the notice of motion. [Citations.] An omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought. [Citations.] The purpose of these requirements is to cause the moving party to ‘sufficiently define the issues for the information and attention of the adverse party and the court.’ [Citation.]” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125, italics added.) If new matter “were permitted in the actual motion, a notice of motion would be reduced to little purpose other than to advise the time and place of hearing.” (Hernandez v. National Dairy Products (1954) 126 Cal.App.2d 490, 493.)
b. Trial court erred in finding no triable issue of defect because Ethicon did not move for summary judgment on that ground.
The trial court “may grant summary judgment on a ground not specifically tendered by the moving party, so long as the opposing party has notice of and an opportunity to respond to that ground. [Citation.]” (Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 860.) Here, Ethicon’s moving papers eschewed the issue of defect and focused exclusively on the essential element of causation. In reaching the issue of defect, an issue which had not been raised in the moving papers, the trial court denied Zammitt notice and an opportunity to respond to that issue.
Compare Code of Civil Procedure section 437c, subdivision (m)(2) [before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs].
Ethicon’s notice of motion asserted: “This Motion for Summary Judgment is based on the grounds that Plaintiff cannot demonstrate a triable issue of fact to establish causation for his strict liability and negligence causes of action against [Ethicon].”
Thereafter, Ethicon’s moving papers contended: “[Ethicon’s] evidence negates the element of causation so that Plaintiff cannot establish that any alleged defect in [Ethicon’s] product caused Plaintiff’s injuries.” (Italics added.) In effect, Ethicon argued that irrespective of whether the product was defective, it could not have caused Zammitt’s injury. Ethicon’s theory on summary judgment was that Zammitt’s colon was perforated because he suffered from diverticulitis, not because of anything that occurred during the prostate surgery.
At the hearing on the motion for summary judgment, the trial court inquired: “How is it that [Ethicon] got brought into this thing?” Zammitt’s counsel responded: “Your honor, the product that they created was really bad[.]” The trial court then stated: “It’s really bad, huh? But we didn’t have a declaration as to how bad the product is.” (Italics added.)
Zammitt’s counsel explained: “Your honor, respectfully, it was not an issue that was raised in the moving papers of Ethicon. [¶] Ethicon’s moving papers were based entirely on the fact that this product could not cause this type of injury. [¶] And I’m referring to page four of Ethicon’s moving brief. That’s all they said, and that’s all we addressed.”
With respect to the nature of the alleged defect, Zammitt’s counsel then argued to the trial court that part of the laser’s function was to sense by temperature where it should be positioned, and if the laser were “positioned improperly, it may be the result of that defective aspect of their product.”
Thus, Zammitt’s counsel correctly pointed out to the trial court that Ethicon’s motion did not put in issue whether the product was defective. Ethicon’s motion for summary judgment neither argued, nor presented any evidence, that the laser was not defective. Therefore, Zammitt was not obligated to raise a triable issue as to defect in order to resist Ethicon’s motion for summary judgment. We conclude the trial court erred in addressing the issue of defect and in partially basing its grant of summary judgment on that ground.
The remaining issue is whether the summary judgment may be upheld on the alternative ground that Ethicon negated the essential element of causation by establishing the perforation in Zammitt’s colon was caused by diverticulitis, not by any alleged defect in the laser.
3. Trial court erred in granting summary judgment in favor of Ethicon on the ground of no causation; a triable issue exists as to whether the perforation was caused by diverticulitis or by the laser.
As indicated, the Court ruled “the declaration of Charles Best, M.D. establishes to a reasonable medical probability that [Zammitt’s] injuries were not caused by [Ethicon’s] laser.” As explained, the trial court’s ruling in this regard was erroneous because a triable issue exists as to causation.
As set forth above, the moving declaration of Dr. Best opined “the perforation of Mr. Zammitt’s proximal sigmoid colon could not to a reasonable degree of medical probability have been caused by the Indigo laser treatment performed by Dr. Corvalan on October 15, 2003” because “the location of the proximal sigmoid colon is remote from the location where the Indigo laser energy was applied to the prostate gland, and that if the Indigo laser had caused damage, there would be evidence of injury to the bladder and structures in between the prostate and the proximal sigmoid colon; none of which were found by Dr. Biderman during surgery on October 19, 2003.” (Italics added.)
Ethicon’s moving papers were further supported by the deposition testimony of Dr. Biderman, whose postoperative diagnosis attributed the perforation in the sigmoid colon to diverticulitis.
In sum, Ethicon sought to establish its laser could not have caused the perforation in Zammitt’s colon by showing: (1) the location of the sigmoid colon was too remote from the location where the laser energy was applied to the prostate gland to have caused any damage to the sigmoid colon; and (2) the perforation was due to diverticulitis.
As a preliminary matter, Dr. Best’s moving declaration merely opined the laser “treatment” rendered by Dr. Corvalan could not to a reasonable degree of medical probability have caused Zammitt’s injury. Dr. Best did not state that a defect in the laser equipment could not have caused the injury. The moving declaration did not address the element of causation with respect to the allegedly defective product, and did not opine whether a defect in the product could have caused the perforation in Zammitt’s colon. Therefore, Ethicon’s moving papers did not meet their initial burden on summary judgment to negate the element of causation with respect to the product.
Because the moving papers only addressed causation with respect to the laser treatment rendered by Dr. Corvalan, the opposition papers responded in kind. By way of opposition, Dr. Brosman opined “the perforation of Mr. Zammitt’s proximal sigmoid colon was to a reasonable degree of medical probability caused by the Indigo laser treatment performed by Dr. Corvalan on October 15, 2003.” (Italics added.) Dr. Brosman based his opinion, inter alia, “on the fact that the type of injury, specifically the perforation of the sigmoid colon, can be anticipated if the probe is inadvertently passed through the prostate and into the colon. The probe is extremely sharp – the laser need not even be turned on to cause this type of puncture injury. Furthermore the timing involved regarding the Indigo laser treatment performed by [Dr. Corvalan], the misplacement of the probe, and the immediate and predictable onset of symptoms . . . indicate the causal nature of the injury.” (Italics added.) As for Dr. Biderman’s failure to find any damage to the intervening tissue between the prostate and colon, “a tiny puncture to intervening tissue caused by the probe is easily overlooked if the operating surgeon, is not specifically looking for it . . . .”
Further, Dr. Brosman did not solely base his opinion on the temporal relationship (less than three days) between the laser surgery and the onset of symptoms. As Dr. Brosman noted, “[p]erhaps most importantly, the Pathology Report . . . shows no indication of diverticulitis despite the diagnosis of [Dr. Biderman]. The Operative Report of [Dr. Biderman] likewise contains none of the findings consistent with diverticulitis. This is particularly telling since, if diverticulitis was the cause of the perforation to Mr. Zammitt’s sigmoid colon, the colon tissue surrounding the perforation would be inflamed and easily recognized by the operating surgeon [Dr. Biderman]. Such inflammation is far more recognizable than any tiny puncture of intervening tissue between the colon and the bladder caused by the Indigo laser probe. [¶] 26. Finally, examination of Mr. Zammitt by Peter P. Chow, M.D. on December 15, 2003, . . . indicates that ‘[n]o significant diverticulitis is noted.’ This is merely two months after his operation by [Dr. Biderman].”
In view of the failure of Ethicon’s moving papers to meet their initial burden to negate the element of causation, as well as the immediate onset of symptoms following the laser surgery and Zammitt’s evidentiary showing that the perforation in his sigmoid colon cannot be attributed to diverticulitis, we conclude a triable issue of material fact exists as to whether Ethicon’s allegedly defective laser either caused or contributed to Zammitt’s injury. Therefore, the grant of summary judgment must be reversed.
DISPOSITION
The judgment is reversed. Zammitt shall recover his costs on appeal.
We concur: CROSKEY, J., ALDRICH, J.