Fw: Powers v. Baxter Healthcare Corp (?)

[Guest guest]

From: " ilena rose " <ilena@...>

Sent: Monday, October 01, 2001 7:23 PM

Subject: Powers v. Baxter Healthcare Corp (?)

> ~~~ Someone asked me about this, from the calendar of the California

> Website ... it seems Judge O'Neal (spit, spit) is no longer the Judge ...

> since his " regime " began in 1992 ... I believe there have been NO breast

> implant justice in California ...

>

> anyone know anything more about this case ?

>

> http://www.sandiego.courts.ca.gov/superior/bic/index.html

>

> In the matter of Powers v. Baxter Healthcare Corp., et al., JCCP-2754-

> 03977, County of San Francisco case number 315790, the Honorable Janis

> Sammartino presiding, the court's tentative ruling is as follows:

>

> The summary judgment motion filed by defendants Baxter Healthcare

> Corporation and Baxter International Inc. (together Baxter) is

> denied. Baxter presented no affirmative evidence showing Heyer-

> Schulte did or did not manufacture plaintiff's implants. Rather,

> Baxter relies on plaintiff's discovery responses to attempt to meet

> its initial burden of showing Heyer-Schulte did not manufacture

> plaintiff's implants. However, plaintiff's discovery responses are

> not " factually devoid. " Plaintiff's responses and the affirmative

> evidence presented by Baxter show that either Heyer-Schulte or Dow

> Corning manufactured plaintiff's implants. (Moving Exhibit E,

> Baxter's Form Interrogatory 17.1 and Moving Exhibit F, plaintiff's

> Response thereto at p. 2:18-25; Moving Exhibit B, Dr. Fascinelli

> Declaration at paragraph 3; Moving Exhibit C, Baxter's Request for

> Admission Nos. 18 and 19 and plaintiff's response thereto.)

>

> This evidence is insufficient to meet defendant's initial burden of

> showing that " one or more elements of the [plaintiff's] cause of action

> ... cannot be established... " because it shows a triable issue of fact

> exists as to the manufacturer of plaintiff's implants. (Code Civ.

> Proc., section 437c, subd. (o)(2).) The burden of proof has not shifted

> to plaintiff to produce any evidence. (Ibid.) Moreover, Baxter's

> " more likely than not " standard of proof is not supported by the

> authorities cited.

>

> This tentative ruling becomes the final order of the court on July 18,

> 2001, unless oral argument is timely requested.

>

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