Michelle Himes v. Somatics, LLC ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE HIMES; MARCIA No. 21-55517
BENJAMIN; DANIEL BENJAMIN,
individually, and on behalf of all D.C. No.
others similarly situated, 2:17-cv-06686-
Plaintiffs-Appellants, RGK-JC
and
ORDER
JOSE RIERA; DEBORAH CHASE; CERTIFYING
DIANE SCURRAH, QUESTION TO
Plaintiffs, THE
SUPREME
v. COURT OF
CALIFORNIA
SOMATICS, LLC,
Defendant-Appellee,
and
MECTA CORPORATION,
Defendant.
Filed April 1, 2022
Before: Sandra S. Ikuta, Kenneth K. Lee, and
Danielle J. Forrest, Circuit Judges.
Order
2 HIMES V. SOMATICS
SUMMARY *
California Law
The panel certified to the Supreme Court of California
the following question:
Under California law, in a claim against a
manufacturer of a medical product for a
failure to warn of a risk, is the plaintiff
required to show that a stronger risk warning
would have altered the physician’s decision
to prescribe the product? Or may the plaintiff
establish causation by showing that the
physician would have communicated the
stronger risk warnings to the plaintiff, either
in their patient consent disclosures or
otherwise, and a prudent person in the
patient’s position would have declined the
treatment after receiving the stronger risk
warning?
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HIMES V. SOMATICS 3
ORDER
The key legal question in the surviving claims in this
case revolves around the causation element in a failure-to-
warn case against a medical product manufacturer: Can a
plaintiff meet the causation requirement by showing that the
physician (if informed of the potential dangers in using the
product) would have relayed stronger warnings to the patient
such that a prudent person would have declined using the
medical product? Or does the plaintiff have to prove that a
manufacturer’s stronger risk warning would have altered the
physician’s decision to prescribe the product?
The outcome of this case depends on this state law
question, and there is no controlling precedent in the
California Supreme Court’s decisions. Cal. R. Ct. 8.548(a).
We thus respectfully certify this question of law to the
California Supreme Court under California Rule of Court
8.548.
I. Background
Appellants Michelle Himes, Marcia Benjamin, and
Daniel Benjamin sued Appellee Somatics, LLC in diversity 1
for negligence, strict liability, and loss of consortium,
alleging that Somatics’s misbranding and failure to warn
about certain risks of its electroconvulsive therapy (“ECT”)
device caused Himes and M. Benjamin their injuries. The
district court granted summary judgment in favor Somatics
after concluding that the appellants failed to establish
causation due to an absence of evidence that stronger
1
Because this is a diversity action, the court applies California
substantive law and federal rules of procedure. See Motus v. Pfizer Inc.,
358 F.3d 659, 660 (9th Cir. 2004) (citing Bank of California v. Opie,
663 F.2d 977, 979 (9th Cir. 1981)).
4 HIMES V. SOMATICS
warnings would have affected their physicians’ decision to
prescribe ECT.
On appeal, the appellants contend that the district court
erred in applying an unduly demanding causation standard
and that they established causation through testimony of the
prescribing physicians that, had Somatics given them
stronger warnings, they would have communicated those
warnings to the appellants who, in turn, claimed they would
not have consented to the procedures. In contrast, the
appellee argues that the district court correctly concluded
that there must be evidence to show that the stronger
warnings would have altered the physicians’ decision to
prescribe the product.
As further explained in an accompanying memorandum
disposition, we affirmed the district court’s grant of
summary judgment in favor of Somatics with respect to the
Benjamins’ claims after we concluded that there is no
genuine issue of material fact that M. Benjamin’s treating
physician would not have learned about any stronger
warnings issued by Somatics in the first instance.
Accordingly, we held that under either causation standard,
the claims would fail.
However, with respect to Himes’s claims, we held that
while there was a genuine issue of fact as to whether her
treating physician would have learned of stronger warnings
and communicated them to Himes, no reasonable juror could
find that the physician would have altered his decision to
prescribe the treatment. Accordingly, we concluded that the
disposition of the appeal with respect to Himes’s claims
hinges on the resolution of the causation standard. If the
district court and Somatics are correct that, in failure-to-
warn claims, a plaintiff must show that stronger
manufacturer warnings would have altered the physician’s
HIMES V. SOMATICS 5
prescribing conduct, Himes’s claims fail. If, on the other
hand, a plaintiff can establish causation by showing that a
physician would have communicated the stronger warning
to the patient and that a prudent person in the patient’s
position would have declined the treatment after receiving
the stronger warning, Himes’s claims survive summary
judgment.
II. Explanation of Certification
This court has previously concluded that, under
California law, “[a] plaintiff asserting causes of action based
on a failure to warn must prove not only that no warning was
provided or the warning was inadequate, but also that the
inadequacy or absence of the warning caused the plaintiff’s
injury.” Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227,
1238 (9th Cir. 2017) (quoting Motus v. Pfizer Inc., 196 F.
Supp. 2d 984, 991 (C.D. Cal. 2001), aff’d, 358 F.3d 659 (9th
Cir. 2004)). Further, in Motus, we held that “a product defect
claim based on insufficient warnings cannot survive
summary judgment if stronger warnings would not have
altered the conduct of the prescribing physician.” 358 F.3d
at 661.
But our cases do not resolve the question of how a
hypothetical stronger warning must alter the conduct of the
prescribing physician. In Wendell, which the appellee seeks
to rely on, we found that the physician’s testimony created
“questions of material fact as to whether warnings would
have changed [the physician’s] prescribing practice.”
858 F.3d at 1239. But the fact that a change in prescribing
conduct established causation does not resolve whether
anything less would have. And in Motus, the prescribing
physician testified that he did not read the label, or any other
information provided by the manufacturer, thus making the
strength of the warnings irrelevant. 358 F.3d at 661. Because
6 HIMES V. SOMATICS
the causation chain was severed at an earlier stage—like in
the Benjamins’ case discussed above—it did not require us
to determine whether a stronger warning would need to alter
the physician’s decision to prescribe or merely to provide
stronger warnings to the patient.
The question of the proper causation standard for failure-
to-warn claims for prescription products is dispositive in this
case. There is no controlling state precedent, and the
question implicates important policy concerns. Thus, after
careful consideration, we exercise our discretion to certify
this question to the California Supreme Court. See Cal. R.
Ct. 8.548(a); see also Kremen v. Cohen, 325 F.3d 1035,
1037–38 (9th Cir. 2003) (listing the factors considered when
determining whether certification is appropriate).
III. Certified Question
We respectfully certify the following question to the
California Supreme Court:
Under California law, in a claim against a
manufacturer of a medical product for a
failure to warn of a risk, is the plaintiff
required to show that a stronger risk warning
would have altered the physician’s decision
to prescribe the product? Or may the plaintiff
establish causation by showing that the
physician would have communicated the
stronger risk warnings to the plaintiff, either
in their patient consent disclosures or
otherwise, and a prudent person in the
patient’s position would have declined the
treatment after receiving the stronger risk
warning?
HIMES V. SOMATICS 7
We will accept the decision of the California Supreme
Court. Cal. R. Ct. 8.548(b)(2). We acknowledge that, as the
receiving court, the California Supreme Court may restate
the certified question. Id. 8.548(f)(5).
IV. Counsel Information
The names and addresses of counsel or the parties, as
required by Cal. R. Ct. 8.548(b)(1) are as follows:
Monique Amanda Alarcon, Bijan Esfandiari, R. Brent
Wisner, Baum Hedlund Aristei & Goldman, 10940 Wilshire
Boulevard, Suite 1600, Los Angeles, CA 90024, for
Plaintiffs-Appellants Michelle Himes, Marcia Benjamin,
and Daniel Benjamin;
Jason Arthur Benkner and David Sean Poole, Poole
Shaffery & Koegle, LLP, 25350 Magic Mountain Parkway,
Suite 250, Santa Clarita, CA 91355; Samuel Roy Weldon
Price, Law Office of Barry Edzant, 28470 Avenue Stanford,
Suite 360, Valencia, CA 91355; Jonathan Freiman, Wiggin
& Dana, LLP, 265 Church Street, One Century Tower, New
Haven, CT 06510-7001, for Defendant-Appellee Somatics,
LLC.
V. Conclusion
The Clerk shall forward an original and ten certified
copies of this certification order, under official seal, to the
California Supreme Court. Cal. R. Ct. 8.548(d). The Clerk is
also ordered to transmit copies of all relevant briefs, as well
as any additional record materials requested by the
California Supreme Court. Cal. R. Ct. 8.548(c).
Submission of this appeal for decision is vacated and
deferred pending the California Supreme Court’s final
8 HIMES V. SOMATICS
response to this certification order. The Clerk is directed to
administratively close this docket, pending further order.
The parties shall notify the Clerk of this court within
fourteen days of the California Supreme Court’s acceptance
or rejection of certification, and again, if certification is
accepted, within fourteen days of the California Supreme
Court’s issuance of a decision.
QUESTION CERTIFIED; PROCEEDINGS
STAYED.