Case 2:19-cv-04565-SPL Document 147 Filed 04/14/22 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`))
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`Defendants.
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`No. CV-19-04565-PHX-SPL
`Anthony Canning,
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`Plaintiff,
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`ORDER
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`vs.
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`Medtronic Incorporated, et al.,
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`Before the Court is Defendant Medtronic Incorporated’s (“Defendant”)1 Motion to
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`Strike (Doc. 126) and Motion for Summary Judgment (Doc. 127). In the Motion to Strike,
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`Defendant seeks to preclude the manufacture defect opinions of Plaintiff’s expert, Dr. Carl
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`Adams. In the Motion for Summary Judgment, Defendant requests summary judgment in
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`its favor as to all Plaintiff’s claims. Both motions are fully briefed and ready for review.
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`(Docs. 126, 136 & 142; Docs. 127, 134 & 141). Having reviewed the parties’ briefing, the
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`Court rules as follows.
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`I.
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`BACKGROUND
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`This is a products liability case arising from the use of a medical stapler gun during
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`a surgical procedure performed on Plaintiff. (Doc. 13 at 2). The procedure—a robotic total
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`gastrectomy during which Plaintiff’s stomach was surgically removed—took place on
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`1 Defendant submits that it was incorrectly named in this suit as Medtronic
`Incorporated. Defendant asserts that its correct name is Covidien Holding Inc. The Court
`will refer to Defendant as “Defendant” throughout this Order to minimize any confusion.
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`Case 2:19-cv-04565-SPL Document 147 Filed 04/14/22 Page 2 of 15
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`December 14, 2017 at Mayo Clinic Hospital (“Mayo”) in Phoenix, Arizona. (Id.). The
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`stapler was an EEAXL2535 model stapler2 (a single-use device) that was designed and
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`manufactured by Defendant. (Id.). After Plaintiff’s stomach was removed, the Mayo
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`surgeons inserted the stapler into Plaintiff’s esophagus to create an “anastomosis”3 between
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`his esophagus and his intestinal tract. (Id. at 3). The surgeons fired the stapler, but it failed
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`to deploy staples. (Id.). As a result, Plaintiff’s esophagus was torn, and the anastomosis had
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`to be completed by hand. (Id. at 4). Plaintiff suffered extended stays in the ICU, in the
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`hospital, and in rehabilitation. (Id.). His pain was continuous and magnified by any
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`attempts to swallow or breathe, and he will continue to suffer deterioration in his ability to
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`intake adequate nutrition. (Id.).
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`Following the surgery, the stapler was sent back to Defendant for inspection. (Id.
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`at 3). Defendant inspected the stapler and found that it had been fired, and that it contained
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`no staples. (Id.). Defendant installed staples, fired the stapler, and reported that it
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`functioned properly. (Id.). Plaintiff now alleges that the stapler was delivered by Defendant
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`to Mayo without staples, and that it was therefore defective. (Id.).
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`On May 24, 2019, Plaintiff filed a Complaint against Defendant in the Superior
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`Court of the State of Arizona. (Doc. 1-3 at 8). On June 26, 2019, Defendant removed the
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`case to this Court. (Doc. 1 at 1). On July 23, 2019, Plaintiff filed an Amended Complaint
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`containing two counts. (Doc. 13). Count I (“Negligence”) can be distilled to three claims:
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`negligent design, negligent manufacture, and negligent failure to warn. (Id. at 5). Count II
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`(“Strict Liability/Breach of Implied Warranty/Defect of Manufacture and Design”) can
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`also be narrowed to three claims: strict-liability design defect, strict-liability manufacture
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`defect, and breach of implied warranty. (Id.).
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`2 In their Joint Rule 26(f) Case Management Report, the parties more specifically
`identified the stapler as a DST Series™ EEA™ XL 25mm Single Use Stapler with 3.5
`staples (reorder code EEAXL2535). (Doc. 20 at 2).
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` 3
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` Plaintiff explains that an anastomosis “is a surgically created connection between
`two structures that are not normally connected.” (Doc. 137 at 3, n.3).
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`Case 2:19-cv-04565-SPL Document 147 Filed 04/14/22 Page 3 of 15
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`II.
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`LEGAL STANDARDS
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`A. Expert Testimony
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`Federal Rule of Evidence (“FRE”) 702 permits parties to file motions to exclude to
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`ensure relevance and reliability of expert testimony. See Kumho Tire Co. v. Carmichael,
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`526 U.S. 137, 152–53 (1999). FRE 702 provides that:
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`A witness who is qualified as an expert by knowledge, skill,
`experience, training, or education may testify in the form of an
`opinion or otherwise if:
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`(a) the expert’s scientific,
`technical, or other specialized
`knowledge will help the trier of fact to understand the evidence
`or to determine a fact in issue;
`(b) the testimony is based on sufficient facts or data;
`(c) the testimony is the product of reliable principles and methods;
`and
`(d) the expert has reliably applied the principles and methods to
`the facts of the case.
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`Fed. R. Evid. 702. The Rule imposes on the trial courts a gatekeeping obligation to “ensure
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`that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”
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`Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). “Whether the expert is
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`appropriately qualified, whether her testimony is relevant, and whether her testimony is
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`reliable are all distinct inquiries under Rule 702.” Contreras v. Brown, No. CV-17-08217-
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`PHX-JAT, 2019 WL 2080143, at *1 (D. Ariz. May 10, 2019).
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`The proponent of the expert evidence has the burden of proving the expert’s
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`testimony is admissible under Rule 702 and the Daubert standard. Grant v. Bristol-Myers
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`Squibb, 97 F. Supp. 2d 986, 989 (D. Ariz. 2000). “When an expert meets the threshold
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`established by Rule 702 as explained in Daubert, the expert may testify and the jury decides
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`how much weight to give that testimony.” Id. When the expert does not meet the threshold,
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`the Court may prevent her from providing testimony. See Alaska Rent-A-Car, Inc. v. Avis
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`Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013) (“Basically, the judge is supposed to
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`screen the jury from unreliable nonsense opinions, but not exclude opinions merely because
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`they are impeachable.”).
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`///
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`Case 2:19-cv-04565-SPL Document 147 Filed 04/14/22 Page 4 of 15
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`B. Summary Judgment Standard
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`A court must grant summary judgment “if the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
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`Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
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`Material facts are those facts “that might affect the outcome of the suit under the governing
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`law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of
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`material fact arises if “the evidence is such that a reasonable jury could return a verdict for
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`the nonmoving party.” Id.
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`The party moving for summary judgment bears the initial responsibility of
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`presenting the basis for its motion and identifying those portions of the record, together
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`with affidavits, which it believes demonstrate the absence of a genuine issue of material
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`fact. Celotex, 477 U.S. at 323. If the movant fails to carry its initial burden of production,
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`the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz
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`Co., Inc., 210 F.3d 1099, 1102–03 (9th Cir. 2000). But if the movant meets its initial
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`responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual
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`dispute and that the fact in contention is material. Anderson, 477 U.S. at 250. In other
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`words, the nonmovant “must do more than simply show that there is some metaphysical
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`doubt as to the material facts,” and, instead, must “come forward with ‘specific facts
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`showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio
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`Corp., 475 U.S. 574, 586-87 (1986).
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`When considering a motion for summary judgment, the judge’s function is not to
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`weigh the evidence and determine the truth but to determine whether there is a genuine
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`issue for trial. Anderson, 477 U.S. at 249. In its analysis, the court must view the factual
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`record and draw all reasonable inferences in the nonmovant’s favor. Leisek v. Brightwood
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`Corp., 278 F.3d 895, 898 (9th Cir. 2002). The court need consider only the cited materials,
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`but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3).
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`///
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`///
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`Case 2:19-cv-04565-SPL Document 147 Filed 04/14/22 Page 5 of 15
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`III. DISCUSSION
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`In the Motion to Strike (Doc. 126), Defendant requests that this Court strike Dr.
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`Adams’ manufacture defect opinion. In the Motion for Summary Judgment (Doc. 127),
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`Defendant requests summary judgment as to all of Plaintiff’s claims. The Court will
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`address each motion in turn.
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`A. Defendant’s Motion to Strike Dr. Adams’
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`Dr. Adams concludes that Plaintiff’s injuries were the result of a defective stapler
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`that failed to deliver a staple load and did not cut the tissue properly. (Doc. 137-3 at 5).
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`Dr. Adams asserts that the stapler was missing staples altogether and that the stapler’s
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`failure was “the only major factor” that contributed to Plaintiff’s injuries. (Id. at 3, 4).
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`Defendant now argues that Dr. Adams’ manufacture defect opinion should be excluded
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`because (i) Dr. Adams is not qualified to offer such a defect opinion and (ii) the opinion is
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`speculative and unreliable. (Doc. 126 at 4).
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`There does not appear to be much in dispute with respect to Defendant’s Motion to
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`Strike because Plaintiff does not directly respond to Defendant’s arguments. Specifically,
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`Plaintiff does not respond by contending that Dr. Adams is qualified to offer a defect
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`opinion or even that his defect opinion is reliable. (See generally Doc. 136). The Court
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`views Plaintiff’s failure to respond to these arguments as concessions that Dr. Adams is
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`unqualified to offer a defect opinion and that his defect opinion is speculative and
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`unreliable.4 See Panaccione v. Aldonex Inc., No. CV-19-04483-PHX-DLR, 2021 WL
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`4 Setting aside Plaintiff’s concession, the Court finds Defendant’s arguments well-
`taken on their merits. FRE 702 requires an expert witness to be “qualified as an expert by
`knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. Here, Dr. Adams
`has no apparent qualifications to opine as to whether the stapler was defective. He has no
`experience with the design or manufacture of medical devices, let alone with the stapler at
`issue. (Doc. 126-1 at 31). He has never researched, disassembled, or studied the stapler
`himself, and he has not reviewed testing files, engineering documents, or other literature
`on the stapler. (Id. at 24–25, 28–31). Unsurprisingly, Dr. Adams was not even asked by
`Plaintiff to provide a defect opinion; according to his report, he was asked “to review the
`///
`///
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`Case 2:19-cv-04565-SPL Document 147 Filed 04/14/22 Page 6 of 15
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`268781, at *3 (D. Ariz. Jan. 27, 2021) (“Failure to respond to the merits of one party’s
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`argument constitutes a concession of that argument.” (internal quotations and citation
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`omitted)); Mendoza v. City of Peoria, No. CV-13-00258-PHX-DJH, 2015 WL 13239816,
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`at *4 (D. Ariz. July 31, 2015) (construing Plaintiff’s “silence” on an argument as a
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`concession).
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` Instead, Plaintiff argues in his Response that the evidence supports a finding that
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`the stapler was missing staples, and that Plaintiff does not need an expert to prove it. (Doc.
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`136 at 2). Whether Plaintiff’s evidence is sufficient to prove a defect and whether he needs
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`expert testimony to prevail on his claims are issues better addressed below, with respect to
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`Defendant’s Motion for Summary Judgment. As it relates to Dr. Adams, Plaintiff’s only
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`argument in the Response is that Dr. Adams should be permitted to testify that he, as a
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`surgeon, would expect the stapler to be loaded with staples. (Id. at 3). The Court sees no
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`issue with such testimony. Moreover, Defendant does not dispute that Dr. Adams may
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`testify that he expects surgical staplers to have staples in them. (Doc. 142 at 2 (“Plaintiff
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`contends Dr. Adams is qualified to testify that he expects surgical staplers to have staples
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`in it. [Defendant] does not dispute this.”)).
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`In sum, the Court grants Defendant’s Motion to Strike. While Dr. Adams may testify
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`as to his own experience using surgical staplers—including that he expects them to be
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`loaded with staples—Dr. Adams may not opine as to the existence of a manufacture defect
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`in the stapler at issue in this case.
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`///
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`medical records and respond to [Plaintiff’s] questions with regard to the consequences” of
`the stapler’s failure. (Doc. 137-3 at 1).
`Even if Dr. Adams was qualified to offer a defect opinion, his expert report falls
`well short of FRE 702’s requirements for reliability. He reaches his “defect opinion”—if
`one could even call it that—based only on the reports of the Mayo surgeons and not on any
`analysis of his own. Again, Dr. Adams never inspected or tested the stapler at issue, nor
`did he review tests done on the stapler by others. There is no evidence that Dr. Adams’
`manufacture defect opinion is based on “sufficient facts or data” or that it is “the product
`or reliable principles and methods.” Thus, even if Dr. Adams were qualified, his
`manufacture defect opinion would still be excluded as unreliable.
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`Case 2:19-cv-04565-SPL Document 147 Filed 04/14/22 Page 7 of 15
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`B. Defendant’s Motion for Summary Judgment
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`Before analyzing Plaintiff’s claims under the summary judgment standard, this
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`Court will address two initial matters. First, the parties agree that Plaintiff’s claim for
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`negligent failure to warn should be dismissed. (See Doc. 134 at 2 (“[Plaintiff] and the
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`Defendant agree that this is not a case involving the failure to adequately warn. The
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`Defendant is correct that [Plaintiff] has not raised a theory of inadequate warnings or
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`instructions.”)). Therefore, this Court grants summary judgment to Defendant on Plaintiff’s
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`negligence claim to the extent it is based on a failure-to-warn theory. Second, Arizona law
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`provides that “the theory of liability under implied warranty has been merged into the
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`doctrine of strict liability.” D’Agnese v. Novartis Pharms. Corp., 952 F. Supp. 2d 880, 890
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`(D. Ariz. 2013) (citations omitted). Thus, Plaintiff’s breach of implied warranty claim has
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`merged with his strict liability claims, and this Court’s holding with respect to Plaintiff’s
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`strict liability claims—as stated below—applies with equal force to Plaintiff’s breach of
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`implied warranty claim.
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`With these initial matters out of the way, Plaintiff’s Amended Complaint is
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`condensed to design defect and manufacture defect claims under both negligence and strict
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`liability theories. Whereas a defectively manufactured product is one that is flawed because
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`of something gone wrong during the manufacturing process, a defectively designed product
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`“is one that is made as the manufacturer intended it to be but that is unreasonably
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`dangerous.” Gomulka v. Yavapai Mach. & Auto Parts, Inc., 155 Ariz. 239, 241–42 (Ct.
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`App. 1987). This Court will first examine Plaintiff’s design defect claims and then turn to
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`his manufacture defect claims.
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`1. Design Defect Claims
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`Plaintiff alleges design defect claims under both negligence (Count I) and strict
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`liability (Count II) theories. In negligent design cases, the plaintiff “must prove that the
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`designer or manufacturer acted unreasonably at the time of . . . design of the product.” Id.
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`at 247; see also Mather v. Caterpillar Tractor Corp., 533 P.2d 717, 719 (Ariz. Ct. App.
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`1975) (“Under the negligence theory a ‘design defect’ arises when the manufacturer has
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`Case 2:19-cv-04565-SPL Document 147 Filed 04/14/22 Page 8 of 15
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`failed to use reasonable care to design its products so as to make it safe for intended uses.”).
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`“This inquiry focuses on what the designer knew or reasonably should have known at the
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`time of design.” Granillo v. Johnson & Johnson, No. CV-19-00529-TUC-CKJ (MSA),
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`2020 WL 913300, at *2 (D. Ariz. Feb. 12, 2020) (citing Dart v. Wiebe Mfg., Inc., 147 Ariz.
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`242, 247 (1985)).
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`In contrast to negligence, strict products liability “does not rest on traditional
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`concepts of fault” and its plaintiffs do “not have to prove that the defendant was negligent.”
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`St. Clair v. Nellcor Puritan Bennett LLC, No. CV-10-1275-PHX-LOA, 2011 WL 5331674,
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`at *4 (D. Ariz. Nov. 7, 2011) (citation omitted). The focus of a strict liability claim is on
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`the quality of the product, not on the conduct of the defendant. Id. at *5 (citing Golonka v.
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`Gen. Motors Corp., 204 Ariz. 575, 581 (Ct. App. 2003)). Under Arizona law, a prima facie
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`case for strict products liability requires a plaintiff “to show the following: the product is
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`defective and unreasonably dangerous; the defective condition existed at the time it left
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`defendant’s control; and the defective condition is the proximate cause of the plaintiff’s
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`injuries.” Id. at *4 (citing Dietz v. Waller, 141 Ariz. 107, 110 (1984)). “There are three
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`categories of defects in strict products liability actions: manufacturing defects; design
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`defects; and informational defects in regard to instructions and warnings.” Sw. Pet Prods.,
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`Inc. v. Koch Indus., Inc., 273 F. Supp. 2d 1041, 1051 (D. Ariz. 2003) (citing Piper v. Bear
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`Med. Sys., Inc., 180 Ariz. 170, 173–74 (Ct. App. 1993)).
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`Defendant argues that Plaintiff not only lacks sufficient evidence of a design defect,
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`but that he lacks even a working theory of a design defect. (Doc. 127 at 9–10). Defendant
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`contends that—despite its own discovery disclosures to Plaintiff of design-related
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`documents and witness testimony—Plaintiff has not criticized any aspect of the stapler’s
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`design or otherwise explained the basis of his design defect claim. (Id.).
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`Plaintiff’s response is revealing. Instead of coming forward with specific facts
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`showing that there are genuine, design-defect claims for trial, Plaintiff offers only the
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`Case 2:19-cv-04565-SPL Document 147 Filed 04/14/22 Page 9 of 15
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`testimony of Mr. Leinsing as support for his design defect claims.5 (Doc. 134 at 5–6).
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`However, this Court has already ruled that Mr. Leinsing’s testimony will not be permitted
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`because Plaintiff failed to disclose of him as an expert until November 11, 2021—long
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`after the parties’ expert disclosure deadlines and the close of discovery. (Doc. 146 at 10–
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`15). Moreover, in Plaintiff’s Motion for Leave—in which Plaintiff requested permission
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`for Mr. Leinsing’s late disclosure—Plaintiff characterized Mr. Leinsing as a rebuttal expert
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`only. (Doc. 124 at 5). Plaintiff argued that his testimony was needed only to rebut
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`Defendant’s experts, whom Plaintiff claimed improperly designated the Mayo surgeons as
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`nonparties at fault. (Id. (“[Mr. Leinsing] is intended merely to defend against the
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`Defendant’s untimely designations [of the Mayo surgeons as nonparties at fault].”); Doc.
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`133 at 6 (“Only [Defendant]’s violation of the nonparty at fault rule . . . caused the hiring
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`of Mr. Leinsing.”)). Now, in offering Mr. Leinsing’s testimony as substantive evidence of
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`his design defect claims, Plaintiff implies that Mr. Leinsing was intended as more than a
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`rebuttal expert after all. If so, Plaintiff’s need for Mr. Leinsing’s testimony arose well
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`before Defendant disclosed its experts and allegedly violated the nonparty-at-fault rule; the
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`Court is unsure why Plaintiff waited so long to bring Mr. Leinsing into the case or how
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`Plaintiff planned to prove his design defect claims in the event this Court denied Plaintiff’s
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`request for Mr. Leinsing’s late disclosure.
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`Regardless, Plaintiff’s design defect claims must be dismissed because Plaintiff has
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`failed to come forward with sufficient evidence showing that a genuine dispute of material
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`fact remains for the factfinder to resolve. See Celotex Corp., 477 U.S. at 324. Plaintiff’s
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`four-sentence response offers only Mr. Leinsing’s testimony to support his design defect
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`claims (Doc. 134 at 5–6), and this Court has already ruled that his testimony will not be
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`permitted (Doc. 146 at 15). Plaintiff appears to have simply assumed this Court would
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`5 Mr. Leinsing would apparently testify that Defendant’s stapler should have been
`designed with a safety feature that would have ensured the stapler could not fire without
`the anvil fully mated to the stapler head. (Doc. 134 at 6).
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`permit Mr. Leinsing’s testimony. The Court did not do so, and Plaintiff is left without any
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`support for his design defect claims. Summary judgment in Defendant’s favor—on
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`Plaintiff’s negligent and strict-liability design defect claims—is appropriate.
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`2. Manufacture Defect Claims
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`Plaintiff alleges manufacture defect claims under both negligence (Count I) and
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`strict liability (Count II) theories. Under Arizona law and as noted above, “[a] defectively
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`manufactured product is one that is flawed as a result of something that went wrong during
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`the manufacturing process.” Gomulka, 155 Ariz. at 241–42. The Court will first address
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`Plaintiff’s strict liability manufacture defect claim because if Plaintiff cannot prove his case
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`in strict liability, he cannot prove it in negligence either. See id. at 243 (explaining that
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`negligence theory requires plaintiff to prove everything under strict liability plus more).
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`a. Strict Liability Manufacture Defect Claim
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`Defendant argues that it is entitled to summary judgment on Plaintiff’s strict liability
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`manufacture defect claim because Plaintiff has no expert testimony to support the claim.
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`(Doc. 127 at 5–8). Defendant further contends that, even if expert testimony is not required,
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`Plaintiff nonetheless lacks sufficient, summary judgment evidence to prevail on the claim.
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`(Id. at 8–9). The Court is unpersuaded by either argument and finds that Plaintiff has
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`sufficient evidence to defeat summary judgment on this claim.
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`As noted above, the focus of a strict products liability claim is on the quality of the
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`product, not on the conduct of the defendant. St. Clair, 2011 WL 5331674, at *5; see also
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`State Farm Ins. Cos. V. Premier Manufactured Sys., Inc., 213 Ariz. 419, 422 (Ct. App.
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`2006) (“A strict products liability plaintiff does not have to prove the defendant was
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`negligent.”); Vineyard v. Empire Mach. Co., Inc., 119 Ariz. 502, 504–05 (Ct. App. 1978)
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`(“What the doctrine of strict liability does is to relieve the plaintiff from proving the
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`defendant’s specific acts of negligence (the proof of the defect being substituted for proof
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`of negligence).”). That said, liability is not imposed for every injury caused by a product
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`but instead exists “only if the product was in a defective condition unreasonably
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`dangerous.” Dart, 147 Ariz. at 244. The elements for a strict-liability manufacture defect
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`claim are the same as those for a design defect claim: (i) the product is defective and
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`unreasonably dangerous; (ii) the defective condition existed at the time the product left the
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`defendant’s control; and (iii) the defective condition is the proximate cause of the plaintiff’s
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`injuries. St. Clair, 2011 WL 5331674, at *4 (citing Dietz, 141 Ariz. at 110).
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`Defendant first asserts that Plaintiff is required—under Rossell v. Volkswagon of
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`America, 147 Ariz. 160 (1985)—to use an expert to establish the existence of a defect
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`because the issues in this case “are beyond the common understanding of jurors.” (Doc.
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`127 at 6–8). Defendant’s argument is that because Plaintiff’s only expert—Dr. Adams—is
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`unable to provide a manufacture defect opinion, Plaintiff’s manufacture defect claims must
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`be dismissed for lack of expert support. (Id.). The Court is unpersuaded by Defendant’s
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`argument, at least insofar as it applies to Plaintiff’s strict liability claim. As this Court has
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`previously found, Rossell “stands only for the proposition that in negligence cases, expert
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`evidence may sometimes be required in assisting the jury to determine what the ‘reasonable
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`care’ standard is.” Walsh v. LG Chem Am., No. CV-18-01545-PHX-SPL, 2021 WL
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`5177864, at *3 (D. Ariz. Nov. 8, 2021) (emphasis added) (citing Rossell, 147 Ariz. at 166–
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`67)); see also Martinez v. Terex Corp., 241 F.R.D. 631, 641 (D. Ariz. 2007) (“[I]t is
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`apparent that there is no requirement under Arizona law that expert testimony be given in
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`a products liability action.”); Dietz, 141 Ariz. at 110 (“Plaintiffs . . . must be permitted to
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`rely upon circumstantial evidence alone in strict liability cases.”). Here, the issue is not
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`related to Defendant’s negligence or the reasonable care standard, but instead concerns
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`proving the existence of a manufacture defect. The Court finds Rossell inapplicable to
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`Plaintiff’s strict liability manufacture defect claim and will not dismiss the claim for lack
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`of expert support.
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`Defendant’s second argument is that, even if expert testimony is not required,
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`Plaintiff nonetheless lacks sufficient, summary judgment evidence that a defect existed.
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`(Doc. 127 at 8–9). Defendant contends that Plaintiff’s evidentiary support consists only of
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`a series of “assumptions about possibilities.” (Doc. 141 at 5). In response, Plaintiff lists
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`evidence that he asserts is sufficient for a jury to reasonably find that the stapler lacked
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`staples and was therefore defective. (Doc. 134 at 2–5).
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`“Arizona courts have allowed plaintiffs to rely on circumstantial evidence to
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`establish a defect that existed at the time the product left the defendant’s control caused the
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`injuries.” Phila. Indem. Ins. Co. v. BMW of N. Am. LLC, No. CV-13-01228-PHX-JZB,
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`2015 WL 5693525, at *15 (D. Ariz. Sept. 29, 2015) (citing Reader v. Gen. Motors Corp.,
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`483 P.2d 1388, 1393–94 (Ariz. 1971)); see also Dietz, 141 Ariz. at 110 (“Plaintiffs, we
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`have held, must be permitted to rely upon circumstantial evidence alone in strict liability
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`cases, because it is unrealistic to expect them to otherwise be able to prove that a particular
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`product was sold in a defective condition.”). “However, Arizona courts limit reliance on
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`such evidence to situations where the product is unavailable or otherwise incapable of
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`inspection.” Phila. Indem. Ins. Co., 2015 WL 5693525, at *15 (citations omitted). Here,
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`although the stapler was available for inspection (in fact, Defendant inspected the stapler
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`itself following Plaintiff’s procedure), there is no dispute that the most important
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`question—whether the stapler had staples in it—was and is incapable of being answered
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`by an inspection. Accordingly, Plaintiff may rely on circumstantial evidence to establish
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`his strict liability manufacture defect claim.
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`The question then is whether Plaintiff’s circumstantial evidence is sufficient to
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`survive summary judgment. See id. at *16 (citing Dietz, 141 Ariz. at 110–11). If Plaintiff
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`provides sufficient circumstantial evidence to permit an inference that the incident was
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`caused by a defect, then “no specific defect need be shown.” Dietz, 141 Ariz. at 110–11.
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`Plaintiff is also not required “to eliminate with certainty all other possible causes” of the
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`product’s failure in proving it defective. Id. at 111. Instead, Plaintiff must “present evidence
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`sufficient to allow the trier of facts to reasonably infer that it was more probable than not
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`that the product was defective.” Id.
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`Here, Plaintiff has circumstantial evidence from which it could be inferred that the
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`stapler lacked staples and therefore had a manufacture defect. First, the single-use stapler
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`was designed to discharge “several dozen” staples upon its firing. (Doc. 136 at 2). All three
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`surgeons who were viewing the operation discussed the fact that there were no staples after
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`the stapler was fired. (Doc. 135 at 3). A fourth surgeon joined them to continue the
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`operation and correct the error; the fourth surgeon also testified that no staples were seen.
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`(Id.). Plaintiff argues that “[i]t is almost impossible to believe that after a stapler misfires,
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`there would be two dozen staples free-floating in [Plaintiff]’s abdomen, and that all four
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`Mayo surgeons . . . would fail to detect a single one of the two dozen staples.” (Doc. 134
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`at 2). Indeed, this evidence alone—that four qualified, trained surgeons had their eyes on
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`the procedure when the stapler was used and now unanimously testify that they did not see
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`any staples—is strong evidence in favor of Plaintiff’s no-staples theory.6
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`In addition to the surgeons’ reports and testimony, Plaintiff also has evidence related
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`to Defendant’s manufacturing process of the stapler that shows how it may be possible for
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`a stapler to be delivered without staples. Specifically, Defendant’s Rule 30(b)(6) witness,
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`Thomas Hessler, testified that there was “at least the possibility” that a stapler could leave
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`the manufacturing process without staples—albeit only if all of the “checks” for the
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`presence of staples along the assembly process broke down. (Doc. 134 at 5 (citing Doc.
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`135-5 at 19)). Additionally, three types of staplers—defective staplers, intentionally non-
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`conforming staplers, and staplers chosen to be test fired—are removed from the production
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`line and then refurbished for sale. (Id. (citing Doc. 135 at 4–5)). None of these staplers
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`have serial numbers, so it is impossible to know if a particular stapler is a refurbished
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`device. (Id. (citing Doc. 135-5 at 38, 55)). While not conclusive, the Court finds this
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`evidence, viewed in Plaintiff’s favor, to support his manufacture defect claim.
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`Finally, Plaintiff has the testimony of Dr. Adams. While Dr. Adams will not be
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`permitted to testify that the stapler in this case lacked staples or that it was otherwise
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`defective in any way, his testimony still lends support to Plaintiff’s case. For example, Dr.
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`Adams may testify that he, as a surgeon, expects single-use, surgical staplers such as the
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`6 Defendant attempts to negate the surgeons’ testimony that no staples were seen by
`pointing out that the surgeons admitted to never actively searching for staples in Plaintiff’s
`bowel. (Doc. 127 at 8). To be sure, this is relevant evidence that undercuts the surgeons’
`testimony. However, it certainly does not invalidate the surgeons’ testim