Mendoza v. Intuitive Surgical, Inc.

Background

The court addressed disputes in the parties’ joint pretrial statement. The disputes concerned the law governing Donna Mendoza’s punitive-damages claim and the admissibility of proposed evidence and testimony at trial. The opinion states that Mendoza’s surgery and injury occurred in Indiana, that Mendoza is an Indiana resident, and that Intuitive Surgical is headquartered in California.

Choice of Law for Punitive Damages

The parties agreed that Indiana and California law conflict because Indiana caps punitive damages and California does not. Applying California’s choice-of-law principles, the court ruled that Indiana law applies to Mendoza’s punitive-damages claim. The court relied on the location of the surgery and injury and Mendoza’s Indiana residency. It explained that California generally has the predominant interest in regulating conduct within California and protecting California residents and others injured there, while this case involved an Indiana resident injured in Indiana.

May 2013 Product Recall

The parties agreed that Intuitive recalled all of its Version-09 and Version-10 monopolar curved scissors instruments on May 16, 2013, because of their potential to cause thermal injury. Intuitive sought to exclude recall evidence and other remedial actions to prove negligence, culpable conduct, a product or design defect, or the need for a warning or instruction.

The court granted in part and denied in part that request. It ruled that the May 2013 recall was a subsequent remedial measure under Federal Rule of Evidence 407 and could not be used to prove those forms of liability because the recall concerned the same alleged defect that allegedly caused Mendoza’s October 11, 2011 injury. But the court ruled that Rule 407 does not exclude remedial actions taken before October 11, 2011. It also explained that recall-related evidence might be admissible for the limited purpose of helping the jury evaluate an expert’s opinion under Federal Rule of Evidence 703, subject to the rule’s requirements and a limiting instruction preventing substantive use of the information.

Fact Witnesses

The court excluded testimony from Thomas Mendoza, Jr., whom the opinion identifies as Donna Mendoza’s husband and a proposed fact witness about her medical condition and damages. Mendoza had not identified him in her required initial disclosures, and the court found that she had not shown the omission was substantially justified or harmless. The court also found that admitting his testimony on the eve of trial would prejudice Intuitive because discovery and deposition opportunities had passed.

The court denied Intuitive’s request to quash any subpoena served on Scott Manzo. Manzo was identified as an Intuitive managing principal engineer who lived and worked in Connecticut. The court found that Intuitive had not addressed whether Manzo regularly conducted business in person in California or whether traveling to trial in San Jose would impose substantial expense. The court also noted that Mendoza could potentially pay such expense and that subpoena enforcement could be conditioned on payment.

The court granted Intuitive’s request to exclude testimony from previously undisclosed current or former Intuitive employees on Mendoza’s proposed witness list. The court found that Mendoza had not shown that the nondisclosures were harmless or substantially justified and that allowing the testimony so close to trial would prejudice Intuitive by depriving it of discovery.

Expert Witnesses

The court granted Intuitive’s request to bar Mendoza from amending or supplementing her expert disclosures, expert reports, or her experts’ opinions. The court stated that the deadline for doing so was February 7, 2020, and that a late change would be untimely and prejudicial because trial was less than a month away.

The court denied without prejudice Intuitive’s request to exclude expert testimony from Mendoza’s treating physicians: Dr. Howard J. Marcus, Dr. Russell William Pellar, and Dr. Muhammad Kudaimi. Because the physicians had been disclosed as fact witnesses, the court ruled that they could provide non-expert testimony at trial. Under the test discussed by the court, opinions formed during treatment are treated differently from opinions formed outside the treatment process and requiring expert disclosures. Because Intuitive had not specified which testimony it challenged, the court deferred the issue until trial and allowed Intuitive to object to particular testimony then.

Disposition

The court resolved the pretrial disputes as stated above. Judge Lucy Koh denied without prejudice the motion concerning the treating physicians’ expert testimony and entered the other specified rulings, including the recall-evidence ruling that was granted in part and denied in part.