Cueva v. Sulzer Orthopedics

Filed 8/30/06 Cueva v. Sulzer Orthopedics CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Robert D. Monarch, Judge. Affirmed.

Law Offices of Phillip K. Fife, Phillip K. Fife and Ryan M. Craig for Plaintiff and Appellant.

Shook, Hardy & Bacon, Frank C. Rothrock, Eva M. Weiler and Lindsay E. Goines for Defendants and Respondents.

Plaintiff Juliet Cueva appeals from a judgment of nonsuit granted on her product liability lawsuit. Cueva contends the trial court completely gutted her case when it granted motions in limine excluding certain evidence and argument concerning the recall of a hip replacement shell similar to the one she received. Cueva also contends the trial court erred in quashing the subpoenas of two witnesses and refusing to grant a trial continuance when it became clear she needed additional deposition discovery before proceeding to trial.

We conclude none of the trial court's rulings unfairly prejudiced Cueva, and that the court properly granted nonsuit. Accordingly, we affirm.

I

Factual and Procedural Background

In December 1998, Cueva underwent hip replacement surgery on her left hip, and received an Inter-Op Acetabular Shell (Inter-Op Shell) implant manufactured by defendant Sulzer Orthopedics, Inc. (Sulzer). The shell consists of a titanium shell using a polyethylene snap-in liner as a hip socket. A porous coating is used on the outside of the shell to encourage bone ingrowth and attachment. After the surgery, defendant suffered pain in her hip, allegedly due to shell loosening. When other treatments proved ineffective, doctors replaced defendant's shell with another manufacturer's hip prosthesis in August 2001.

Cueva's shell was manufactured between February and August 1997, and was machined in Pennsylvania by Cycam, Inc., an outside contractor. After machining by Cycam, the shell was sent to Sulzer where it underwent passivation, a process involving immersion of the shell in a nitric acid solution which Sulzer contends makes it more compatible to bone ingrowth. In late 1997, Sulzer made changes to the shell manufacturing process, which included machining the shells in its own facility in Texas instead of sending them out to Cycam, and eliminating the passivation process. After the manufacturing changes, Sulzer received numerous complaints from physicians about loosening problems with the shells. Sulzer's investigation determined the problem stemmed from machine oil contamination. Sulzer learned that the equipment used in the machining process in its Texas plant leaked small amounts of oil into recirculating liquids used to cool the parts during the machining process. The oil residue on the porous surface of the shell prevented proper bone ingrowth.

As a result, Sulzer recalled some 40,000 Inter-Op Shells, approximately 17,500 of which already had been implanted. The shells recalled were those which met any of the following criteria: (1) shells manufactured entirely at the Sulzer plant, (2) shells that underwent a final inside diameter turn at the Sulzer plant after application of the porous coating, and (3) shells that had not undergone passivation. Because Cueva's shell was machined at Cycam's plant, did not undergo a final inside diameter turn in Sulzer's plant, and underwent passivation, it was not part of the recall. Numerous lawsuits arising from the recalled Inter-Op Shells resulted in federal multidistrict litigation (MDL) before Judge Kathleen M. O'Malley, United States District Court, Northern District of Ohio. In California, the Sulzer shell defect cases were brought before Judge Ronald M. Sabraw, Alameda County Superior Court, as Judicial Council coordinated proceedings (JCCP).

In June 2001, Cueva filed this action against Sulzer seeking damages for (1) strict liability for manufacturing defect, (2) breach of warranty, (3) negligence, and (4) strict liability for failure to warn. The complaint alleges â€