Products Liability Law Daily Product liability action against surgical robot maker barred by California’s two-year statute of limitations
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Wednesday, April 7, 2021

Product liability action against surgical robot maker barred by California’s two-year statute of limitations

By Nicholas J. Kaster, J.D.

Although the district court erred by failing to consider whether Connecticut had a legitimate interest in seeing its law applied, the court correctly held that California law governed the claims.

The U.S. Court of Appeals for the Ninth Circuit has upheld a federal district court’s holding that California’s two-year statute of limitations barred a product liability suit brought by a patient, who was a resident and citizen of Connecticut, against Intuitive Surgical, Inc., a corporation headquartered in California, involving an allegedly defective surgical robot that caused injuries to the patient. The surgical robot was designed and manufactured by Intuitive Surgical in California. The Ninth Circuit held that: (1) the California, not the Connecticut, statute of limitations applied; (2) a tolling agreement entered into between the parties did not render the product liability claims timely; and (3) the doctrine of equitable estoppel did not apply to the claims (Rustico v. Intuitive Surgical, Inc., April 6, 2021, Bea, C.).

Background. In January 2012, the patient underwent a robotically assisted surgery in Connecticut to remove an ovarian mass. At the time, she was a citizen and resident of Connecticut. The doctor attempted to perform the surgery using the da Vinci surgical robot, which was designed and manufactured in California by Intuitive Surgical, Inc. (Intuitive), a Delaware corporation with its headquarters in California. Unfortunately, the surgical robot malfunctioned and caused internal injuries. The patient eventually sought damages from Intuitive for its allegedly defective product.

In January 2013, a year before the expiration of California’s statute of limitations, Intuitive proposed a general tolling agreement to all putative claimants who sought to file personal injury claims arising out of the da Vinci surgical robot. However, by the time the Connecticut patient decided to enter into the agreement, in February 2014, California’s two-year statute of limitations-but not Connecticut’s three-year statute of limitations-had expired.

Nonetheless, the patient filed product liability claims against Intuitive in California. The district court granted Intuitive’s motion for summary judgment on the basis that California’s statute of limitations barred the claims [see Products Liability Law Daily’s December 20, 2019 analysis]. The current appeal ensued.

Application of California statute of limitations. In resolving the choice of law question, the Ninth Circuit applied California’s three-step "government interest" analysis. Under this analysis, the court must first determine whether the substantive laws of California and the foreign jurisdiction differ on the issue before it. Second, if the laws do differ, then the court must determine what interest, if any, the competing jurisdictions have in the application of their respective laws. The third step requires the court to identify and apply the law of the state whose interest would be the more impaired if its law were not applied.

Under the first step, the parties agreed that the laws of California and Connecticut differed, with California having a two-year statute of limitations for product liability claims, and Connecticut having a three-year statute of limitations. Absent tolling, the claims would be untimely under California law but timely under Connecticut law.

Under step two, the court determined what interest, if any, the respective states had in seeing their respective laws applied to the case. The application of California law, the Ninth Circuit held, would serve the dual purpose of protecting Intuitive, which is headquartered in California, and protecting the district court, which is located in California, from the burden of litigating the patient’s expired product liability claims.

However, the appellate court stated, although California had a strong interest in seeing its statute of limitations applied here, the district court erred by failing to consider whether Connecticut had any interest in seeing its own statute of limitations applied. Despite this error, however, reversal was not warranted, the Ninth Circuit ruled.

The patient contended that Connecticut has a particularly strong interest in protecting its citizens from defective products because Connecticut’s statute of limitations pertains only to product liability claims-unlike California’s statute of limitations, which "applies generally to tort claims of all types." However, the court noted, Connecticut does not treat product liability claims differently from general tort claims: it has prescribed the same limitations period for both types of claims.

The patient also failed to show that she was a member of the class of persons whom Connecticut’s statute of limitations was designed to protect. Both California and Connecticut agree that statutes of limitations are designed to protect in-state defendants and courts by cutting off liability and preventing the litigation of stale claims.

Because California-but not Connecticut-had a legitimate interest, there was a "false conflict," leading the Ninth Circuit to apply the California law. "Even if we were inclined to infer that Connecticut has some degree of interest in the application of its law here and we were to proceed to step three to compare the nature and strength of each state’s interest in the application of its own law, it is clear that California has a much stronger interest that would be more impaired if its law were not applied," the appellate court stated.

Although the district court erred by failing to consider whether Connecticut had a legitimate interest in seeing its law applied, the district court correctly held that California’s two-year statute of limitations governed the claims, the Ninth Circuit ruled.

Effect of tolling agreement. The Ninth Circuit found that the tolling agreement did not render the product liability claims timely. The tolling agreement expressly preserved "any statute of limitations defense that could have been asserted before the date of the tolling period." Although counsel executed the agreement on August 9, 2013, the tolling agreement did not commence until Intuitive was provided with the patient’s name. Counsel, however, waited nearly six months after executing the tolling agreement to submit the patient’s name. By the time counsel did so, the time period enacted in California’s two-year statute of limitations had already expired. Because the tolling agreement expressly preserved Intuitive’s statute of limitations defense for "the applicable" jurisdiction, Intuitive was entitled to employ its statute of limitations defense under California law, the Ninth Circuit held.

Application of equitable estoppel. Under the doctrine of equitable estoppel, a defendant may be equitably estopped "from asserting the statute of limitations as a defense to an admittedly untimely action" when "his conduct has induced another into forbearing suit within the applicable limitations period." Under California law, there are four elements: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.

The court found that the patient failed to submit any evidence that identified a misrepresentation, material omission, or false promise made on behalf of Intuitive. The record was devoid of any communication from Intuitive suggesting the applicability or viability of any jurisdiction’s statute of limitations.

The patient may feel tricked that her claims were time-barred, the Ninth Circuit stated, but the tolling agreement explicitly informed her that Intuitive did not "waive or release any statute of limitations defense that could have been asserted before the date of the tolling period."

In fact, the court noted, the patient was represented by counsel, who presumably reviewed the tolling agreement before voluntarily opting into it by providing Intuitive with the patient’s name some weeks after the two-year anniversary of her surgery-despite waiting nearly six months after executing it. Thus, the doctrine of equitable estoppel did not apply, the court held.

Accordingly, the Ninth Circuit affirmed the district court’s grant of summary judgment in favor of Intuitive Surgical.

This case is No. 20-15009.

Attorneys: Nancy L. Hersh (Hersh & Hersh LLP) for Jean Rustico and John Rustico. Emily Reitmeier (Skadden Arps Slate Meagher & Flom LLP) for Intuitive Surgical, Inc.

Companies: Intuitive Surgical, Inc.

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