Metropolitan News-Enterprise

 

Friday, October 12, 2018

 

Page 3

 

Plaintiff Who Knew Defendant’s Identity Permitted to Substitute for Doe

 

By a MetNews Staff Writer

 

The first District Court of Appeal has said a plaintiff must be allowed to substitute a company for a Doe defendant in her strict products liability action because even though she knew the name of the company when it delivered a medical device and trained her in its use, she did not know she had a cause of action against it before filing the complaint.

The unpublished opinion, filed Wednesday, was written by Justice Marla J. Miller of Div. Two.

The plaintiff, Kimberly Pemberton, had a bunion removed by her doctor and was prescribed a cold therapy unit (“CTU”) to subsequently treat her foot. The foot developed gangrene and was partially amputated as a result, which her doctor attributed to use of the CTU.

Pemberton’s complaint named the device’s manufacturer, CoolSystems, Inc., as well as “DOES 1-50.”

CoolSystems brought a cross-complaint against Compass Orthopedic Technologies & Products, Inc. (“Compass”) in the course of the litigation. Pemberton then sought to amend her complaint to substitute Compass for “DOE 1” pursuant to Code of Civil Procedure §474, which the trial judge denied.

Doctor’s Telephone Call

At issue was the effect of a telephone call between Pemberton’s doctor and a Compass employee before the filing of the lawsuit. The woman overheard the call, which she detailed in the following colloquy:

“Q: What do you recall her saying or telling you when she removed the bandage, if anything?

“A: I recall her being concerned about my foot. And, I recall her—someone in her office staff, she told them to get Compass on the telephone. And I recall her conversation with that Compass person—I have no knowledge of who that might have been—to never instruct her patients to use the cold therapy machine on the coldest setting.

“Q: Do you recall what tone of voice she used?

“A: She was angry.”

Compass contended that this conversation, combined with the fact that a Compass employee had delivered the device and trained Pemberton in its use, precluded the plaintiff’s amendment because she should have known that the company might have, in some measure, caused her injury.

Tentative Ruling Correct

Miller wrote:

“The doctor’s angry tone, overheard by Pemberton, is not enough to establish Pemberton understood the causal connection. As the trial judge properly concluded in her written tentative ruling denying Compass’s motion, ‘there is no evidence before the Court that suggests Ms. Pemberton was aware of facts that demonstrated that Compass’s instructions to her—or her use of the machine on its coldest setting—is what caused her injury. A reasonable person may very well have believed that the machine was defective irrespective of the manner in which it was used.’

“That factual finding (though tentative) accurately described the state of the evidence before the trial court, and it was an equally accurate assessment after oral argument. In our view, the trial court got it right the first time in its tentative ruling. The inference that it drew from this evidence to reach the opposite conclusion two days later—that Pemberton was aware that Compass had caused her injury—is speculation or conjecture. It is not a basis for a finding that Pemberton relinquished her rights to use section 474 when she filed her complaint.”

The jurist noted that §474 is construed liberally by courts in favor of permitting amendment, and that Compass was not prejudiced by the amendment, having been involved in the litigation as a cross-defendant.

The case is Pemberton v. Compass Orthopedic Technologies & Products, Inc., A152339.

 

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