[00:00:00] Speaker 04:
Good morning.

[00:00:00] Speaker 04:
Good morning.

[00:00:01] Speaker 04:
May it please the court.

[00:00:02] Speaker 04:
Excuse me.

[00:00:02] Speaker 04:
I'm Spencer Freeman.

[00:00:03] Speaker 04:
I represent the Appellant William Hunt in this matter.

[00:00:06] Speaker 04:
I'd like to reserve five minutes for rebuttal.

[00:00:10] Speaker 04:
I want to start by addressing why Appellant's briefing focuses on the definition of duty and the source of the duty that we allege is owed by Mentronic.

[00:00:21] Speaker 04:
Without defining the duty and the source of duty, it cannot be properly determined what evidence is required to establish a breach of that duty.

[00:00:30] Speaker 04:
The trial court in this case did not properly define the duty nor the source of duty.

[00:00:35] Speaker 04:
Medtronic does not suggest that duty or what the source of duty is.

[00:00:39] Speaker 04:
And we're here to ask you to define that duty.

[00:00:43] Speaker 04:
The duty owed by Medtronic as alleged in the complaint is not a specialized duty, but rather the common law duty of ordinary care.

[00:00:51] Speaker 04:
The care of a reasonably careful person would exercise under the same or similar circumstances.

[00:00:57] Speaker 04:
Now, there's specialized technology here, and it's really easy to get distracted by the fact that there's specialized technology.

[00:01:04] Speaker 04:
But that specialized technology is the context.

[00:01:07] Speaker 04:
That technology is developed, sold by Medtronic, and then implanted in the person.

[00:01:13] Speaker 04:
And once it's implanted, Medtronic represents that it will take care of technical issues should they arise.

[00:01:20] Speaker 04:
And by the way, Medtronic is the sole entity

[00:01:23] Speaker 04:
that can take care of any technical issues should they arise.

[00:01:28] Speaker 02:
Let's talk about one thing first and clear it out of the way.

[00:01:31] Speaker 02:
Your contract claim was dismissed for lack of adequate allegations.

[00:01:41] Speaker 02:
The promises, that's not an appeal, right?

[00:01:45] Speaker 04:
So the contract, the promises that I just mentioned, the affirmations from Medtronic telling a patient that they will provide technical services.

[00:01:53] Speaker 04:
Contract claim is not on appeal, that is final.

[00:01:55] Speaker 04:
It is not on appeal.

[00:01:56] Speaker 04:
Okay, thank you.

[00:01:56] Speaker 04:
That's a separate thing.

[00:01:57] Speaker 04:
No, the contract claim, and the reason the contract claim is not on appeal is that device is actually sold to the doctor, to the pain clinic.

[00:02:05] Speaker 04:
It's not sold directly to a plaintiff.

[00:02:07] Speaker 04:
And so Medtronic can, and successfully asserted, there is no actual contract between Medtronic

[00:02:14] Speaker 04:
and the plaintiff.

[00:02:15] Speaker 04:
And that actually emphasizes, while it's even more important, that we look at the duty that is established between Medtronic and the prospective plaintiff as one is based off the relationship.

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And the state of Washington has long recognized that duties can exist between parties based off of a special relationship.

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And that exists here.

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I mean, you can look at Meyers versus Ferndale

[00:02:41] Speaker 04:
Prime example finding that relationships can establish duties amongst people Folsom versus Burger King same thing the relationship amongst parties can result in a duty here Medtronic actively works towards getting people to agree to get their device They have the device implanted they tell people that

[00:03:05] Speaker 04:
If you have technical problems with this device, you call us.

[00:03:09] Speaker 04:
We can help you and we will help you with those technical problems.

[00:03:12] Speaker 04:
But even beyond that, there's nobody else to call.

[00:03:16] Speaker 04:
If you have a technical problem with the device, there's absolutely nobody else to call.

[00:03:21] Speaker 03:
I don't know if the district court or even Medtronic dispute at a high level, the existence of some kind of duty of care here.

[00:03:28] Speaker 03:
I guess the question would be,

[00:03:30] Speaker 03:
Once we get into the issues of, well, how was that duty breached and what was the causation between this alleged breach and the injuries?

[00:03:40] Speaker 03:
Is that beyond the kind of common experience of a lay person that we would need to have expert testimony to help?

[00:03:46] Speaker 03:
I don't think so.

[00:03:47] Speaker 04:
I think you can, first of all, that is more akin to a medical malpractice case or a legal malpractice case where you've got years of education.

[00:03:56] Speaker 04:
and complex systems in place which dictate what those standards of care are.

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This is very, very simple.

[00:04:04] Speaker 04:
Medtronic's device was implanted into a person.

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It's a device that continues to work and function on a technological basis.

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Medtronic is the only entity that can address repairs to that.

[00:04:16] Speaker 04:
And it's reasonably foreseeable that something could go wrong with the electric components.

[00:04:21] Speaker 04:
How many of us had to learn what it meant to reset your phone or call IT because you had to reset the computer somehow because there's some computer glitch that caused it to not function correctly?

[00:04:32] Speaker 04:
That is reasonably foreseeable.

[00:04:35] Speaker 04:
The standard of care here was that they needed to show up.

[00:04:38] Speaker 04:
I don't think you need expert testimony to establish that there was a breach because they didn't show up when Mr. Hunt, over a hundred hours, was being shocked.

[00:04:48] Speaker 04:
The electrical impulses, he could not manipulate them with his own personal controller.

[00:04:52] Speaker 02:
Hunt's claim is that the breach of the duty owed him was in failure to give him the tablet that he had been promised.

[00:05:01] Speaker 04:
No.

[00:05:01] Speaker 02:
And gave him only a device which had three settings instead of 28.

[00:05:08] Speaker 04:
No, the failure to give him the tablet as promised is underneath the Consumer Protection Act.

[00:05:15] Speaker 04:
The damages as a result of the breach, because the breach that we're alleging here is the failure to respond to him over those hundred hours asking Medtronic to come help.

[00:05:26] Speaker 04:
He called everybody he could, the Medtronic local reps, their boss, the headquarters in Minnesota, went to an ER to get a doctor.

[00:05:35] Speaker 02:
Didn't the Medtronic people tell him that he had to go to a pain specialist that is a doctor to get the help?

[00:05:40] Speaker 04:
They did.

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That was their position at that time.

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But that position is contrary to any of their literature, which just says you need to be under the care of a doctor.

[00:05:50] Speaker 03:
He didn't lose because he failed to state a claim.

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I mean, a lot of the arguments you're making

[00:05:56] Speaker 03:
to the point that he has an alleged injury, he has a claim.

[00:06:00] Speaker 03:
I guess the concern the district court had is, how are we going to try this in front of a jury with just kind of lawyer argument as opposed to people who know these devices and can speak to some of these more technical issues?

[00:06:13] Speaker 04:
But the technical issues don't go towards whether or not there was a breach of the duty of care.

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It is the context.

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It's not the same thing as if you have a medical malpractice case or the fabric

[00:06:25] Speaker 04:
case is a good example where in that case, they went to some conference at the hotel and they ate there and they got salmonella.

[00:06:35] Speaker 04:
The plaintiff then ultimately started to suffer from arthritis.

[00:06:38] Speaker 04:
The question was whether or not the salmonella caused the arthritis.

[00:06:42] Speaker 04:
In that scenario, with those obscure, difficult technical medical facts, that's the causation.

[00:06:47] Speaker 04:
It required medical testimony.

[00:06:51] Speaker 04:
the causation, the damages we're talking about, those hundred hours of being shocked, which are the result of Medtronic failing to come help him.

[00:06:59] Speaker 02:
And do what?

[00:07:01] Speaker 02:
Failing to come and help him and do what?

[00:07:03] Speaker 02:
Turn the device off.

[00:07:07] Speaker 02:
Whether the device should be turned off or not is not a medical issue?

[00:07:12] Speaker 04:
I'm sorry?

[00:07:13] Speaker 02:
Is not a medical issue about whether the device should be turned off or not?

[00:07:18] Speaker 04:
No.

[00:07:19] Speaker 04:
I think that if the device is causing him harm, and he wants it turned off, and he needs it turned off to stop the harm, then turning it off is the thing to do.

[00:07:29] Speaker 01:
And Medtronic... You're presuming the harm.

[00:07:31] Speaker 01:
I mean, I was reading the expert testimony, which is a little unusual.

[00:07:37] Speaker 01:
It says, do you have any criticisms of my client Medtronic?

[00:07:40] Speaker 01:
No.

[00:07:40] Speaker 01:
And you don't have any criticisms of Medtronic's device representatives?

[00:07:45] Speaker 01:
True.

[00:07:45] Speaker 01:
And then they say no.

[00:07:47] Speaker 01:
They just said, the only thing I'm here for, that's the expert testifying, is just to tell you objectively where the leads are.

[00:07:54] Speaker 01:
And so going back to Judge Baez question, the ultimate medical question here about turning it off or what should be done, there was no expert testimony as I understand it.

[00:08:09] Speaker 04:
But that's correct.

[00:08:10] Speaker 01:
And you're just saying you don't need it.

[00:08:11] Speaker 04:
That's correct.

[00:08:12] Speaker 01:
Okay.

[00:08:13] Speaker 04:
Because the damages are those hundred hours of being shocked, you don't need medical testimony about those hundred hours.

[00:08:23] Speaker 04:
I would draw the analogy of if somebody gets bitten by a dog, you don't need to have medical testimony to come in and say that the lacerations or the resulting scars are the result of the dog bite.

[00:08:36] Speaker 04:
A jury can make that determination based off of their observations and that testimony.

[00:08:43] Speaker 04:
In looking at the public interest aspect of it, the consumer protection aspect, I think it's important to note that this is alleged.

[00:08:54] Speaker 02:
Is it your position that Medtronic should have turned off this device without the advice of a pain specialist?

[00:09:01] Speaker 04:
Yes.

[00:09:03] Speaker 04:
But mind you, the patient has that ability to turn on and off the device on their own with their personal controller.

[00:09:09] Speaker 04:
It's not a medical decision.

[00:09:12] Speaker 02:
Why didn't he turn off the device himself?

[00:09:14] Speaker 04:
He tried.

[00:09:15] Speaker 04:
That was the problem.

[00:09:17] Speaker 04:
His personal controller was not manipulating the electronic pulses that were shocking him continuously.

[00:09:24] Speaker 04:
And it was not turning it off.

[00:09:26] Speaker 04:
It was so bad that he, at one point, tried to cut out the battery pack himself.

[00:09:31] Speaker 04:
And then to get it to stop, he took a mallet and beat it to make it stop.

[00:09:36] Speaker 01:
Whether or not... Follow-Pain specialist.

[00:09:38] Speaker 01:
He didn't go to the ER.

[00:09:39] Speaker 04:
He did go to the ER.

[00:09:41] Speaker 01:
But you're now claiming that Medtronic is responsible.

[00:09:47] Speaker 04:
So Medtronic, yes, Medtronic is responsible for not coming down and helping him.

[00:09:51] Speaker 04:
They had a duty to help him.

[00:09:52] Speaker 04:
They're the only ones that could.

[00:09:54] Speaker 04:
He did go to the ER.

[00:09:55] Speaker 04:
He asked that ER doctor to call Medtronic.

[00:09:57] Speaker 04:
Medtronic said no.

[00:09:58] Speaker 04:
He went to his primary care to call.

[00:10:01] Speaker 04:
Primary care did.

[00:10:03] Speaker 04:
Medtronic said no.

[00:10:03] Speaker 04:
They did at that point say you need to be under care of a pain management, but they've never

[00:10:08] Speaker 04:
in any of their documentation require it, just that you're under the care of a doctor.

[00:10:12] Speaker 04:
In addition, they had gone to that exact primary care office clinic before and adjusted his spinal cord stimulator device.

[00:10:23] Speaker 04:
And in fact, they marketed their device at that clinic, and there were several doctors at that clinic that prescribed those devices.

[00:10:32] Speaker 03:
technical here about who, you know, who bears responsibility exactly for what?

[00:10:36] Speaker 03:
We have a medical device manufacturer that's doing some amount of servicing.

[00:10:39] Speaker 03:
We have a whole bunch of doctors involved.

[00:10:42] Speaker 03:
Why wouldn't we need an expert to come in and help a jury understand who does what?

[00:10:47] Speaker 03:
Because your argument sort of assumes that the scope of Medtronic's obligation was to do all of these things.

[00:10:53] Speaker 03:
And somebody could say, well, look, really, this is more of a medical question.

[00:10:56] Speaker 04:
But it's not all these things.

[00:10:58] Speaker 04:
It was showing up to assist to change the electrical impulses on that device or turn it off, which they affirmatively represented that is their role.

[00:11:07] Speaker 04:
I don't think that there's a lot of technical aspects of how it works or when it works that's necessary to understand that that's the role that they said they had and they refuse to come down in this instance.

[00:11:18] Speaker 03:
I guess why wouldn't you want an expert to help the case?

[00:11:21] Speaker 03:
I mean, even if one's not strictly necessary, you had other experts here

[00:11:24] Speaker 03:
but they then weren't taking a position on Medtronic, which was a little unusual.

[00:11:28] Speaker 04:
Yeah, well, what I can tell you is that most clinics have some relationship with Medtronic, and I've got about three minutes left.

[00:11:37] Speaker 03:
Okay, we'll put four minutes back for you.

[00:11:38] Speaker 04:
Okay, thank you, I appreciate it.

[00:11:48] Speaker 00:
Good morning.

[00:11:49] Speaker 00:
Good morning, thank you Judge Bress, and may it please the court.

[00:11:51] Speaker 00:
David Suska from Medtronic USA.

[00:11:54] Speaker 00:
The district court correctly granted summary judgment for Medtronic on each of Hunt's claims.

[00:11:59] Speaker 00:
Nothing in Mr. Hunt's appellate briefing and nothing that the court has heard today could support disturbing the judgment below.

[00:12:05] Speaker 00:
Now, most of the panelists colloquy with Mr. Freeman focus on the negligence claim.

[00:12:08] Speaker 00:
And so I think maybe I will start there.

[00:12:11] Speaker 00:
Your honor, this is not a dog bite case.

[00:12:17] Speaker 00:
This this case involves

[00:12:20] Speaker 00:
a spinal cord stimulator that is implanted in someone's body with leads that are placed in the epidural space.

[00:12:27] Speaker 00:
Further, this this case involves a plaintiff who has a history of diagnosed disc degeneration, an inherited connective tissue disorder that has caused him chronic pain since adolescence, three prior spinal surgeries,

[00:12:40] Speaker 00:
It is plainly beyond the capacity of a lay juror using his or her ordinary senses to perceive what caused the pain, the 100 hours of pain that Mr. Friedman refers to earlier today, in March of 2021.

[00:12:53] Speaker 00:
I think necessarily then, under Washington law, expert testimony was needed to assist lay jurors in making the determination as to breaching causation.

[00:13:05] Speaker 00:
And just focusing specifically on causation, again,

[00:13:09] Speaker 00:
If Mr. Hunt's position is he didn't need expert testimony, well, again, he didn't dispute that below.

[00:13:15] Speaker 00:
He went out and he sought expert testimony.

[00:13:17] Speaker 00:
And what his expert said is, what we can tell you conclusively is that the leads moved several meters in Mr. Hunt's epidural space.

[00:13:25] Speaker 02:
As to the testimony of the experts that Judge McKeown read, were those experts deposed by you or by the plaintiff?

[00:13:34] Speaker 00:
I believe that the testimony that appears in the record excerpts is Medtronic's counsel's deposition of Hunts disclosed experts.

[00:13:45] Speaker 00:
Dr. Badger testified that, you know, what I would say if called to testify at trial, I wouldn't offer any opinion as to what Medtronic did or did not do and whether it was appropriate or inappropriate.

[00:13:55] Speaker 00:
all I would say is the leads clearly moved as a result of the car accident, several millimeters within the epidural space, which Dr. Badger explained is a very, I think he used the term confined or restricted canal that runs essentially from the bottom of the skull to the top of the tailbone that's full of nerve endings.

[00:14:13] Speaker 00:
And as Dr. Badger explained, it doesn't take much movement of leads within that tiny space with all of those nerve roots to cause the kind of symptoms, physical symptoms that Mr. Hunt was complaining of.

[00:14:24] Speaker 00:
and to potentially even cause nerve damage.

[00:14:27] Speaker 00:
And so again, this is not a dog bite case.

[00:14:28] Speaker 00:
This is a case that involves someone with a complicated medical history, a complicated medical device that's been implanted in his spine, a car accident that caused the leads in the epidural space to move.

[00:14:39] Speaker 00:
It is plainly beyond the capacity of lay jurors to assess, just take causation.

[00:14:45] Speaker 00:
Right?

[00:14:45] Speaker 00:
There's a lot of talk in the case about duty and breach, a lot of talk today about duty and breach.

[00:14:49] Speaker 00:
Just focus on causation, which was one of the grounds for the judgment below.

[00:14:52] Speaker 02:
So you're saying that there's no evidence that the pain was caused by the device itself rather than the results of the accident?

[00:15:01] Speaker 02:
Is that what you're saying?

[00:15:02] Speaker 00:
Well, I take our burden on summary judgment, right?

[00:15:05] Speaker 00:
I accept it.

[00:15:06] Speaker 00:
You can draw favorable inferences in the record in Mr. Hunt's favor.

[00:15:09] Speaker 00:
Mr. Hunt says it's the device causing the pain.

[00:15:12] Speaker 00:
But I think the point that the district court correctly reached reading Washington law.

[00:15:16] Speaker 02:
Why is this opinion relevant?

[00:15:18] Speaker 00:
I think that's exactly that.

[00:15:19] Speaker 00:
That's where I was just exactly where I was going, Judge Bayer.

[00:15:22] Speaker 00:
The district judge said even so, as a matter of Washington law, this is the kind of case that requires expert assistance to assist the lay juror

[00:15:30] Speaker 00:
to understand what could have caused the pain, and further, whether there was a breach of any assumed duty.

[00:15:35] Speaker 00:
And Mr. Hunt, again, he did not dispute below that he needed expert evidence on breaching causation, and he went out and he tried to get it.

[00:15:42] Speaker 00:
His expert testimony then undermined his case.

[00:15:46] Speaker 00:
It's not, though, that the expert testimony sort of vanishes from the record.

[00:15:49] Speaker 00:
It's still on the record, and I think it speaks to what his experts think is most likely the cause of the 100 hours of pain that he was suffering, that he seeks to recover for in negligence.

[00:15:59] Speaker 00:
Again, in any case, the dispositive point is he needed expert evidence that supported him on the breaching causation elements, and he did not adduce it.

[00:16:08] Speaker 03:
Yeah, I take it.

[00:16:08] Speaker 03:
I mean, he kind of wants to stylize the claim a little bit and say, this device was causing me 100 hours of pain.

[00:16:17] Speaker 03:
I asked for it to be turned off.

[00:16:19] Speaker 03:
They had an obligation to do that because they said they would.

[00:16:21] Speaker 03:
Then they didn't do that.

[00:16:24] Speaker 03:
And that's just, you know, a kind of

[00:16:26] Speaker 01:
He's saying this isn't rocket science.

[00:16:27] Speaker 00:
Yeah, it's not rocket science.

[00:16:28] Speaker 01:
I wasn't able to push the button and turn it off.

[00:16:30] Speaker 00:
Well, I think two things, Your Honor.

[00:16:33] Speaker 00:
First, I think the theory of negligence has sort of evolved a bit, and it's sort of evolved, I think, to meet different objections, including the sort of objection that the district court landed on, which is, well, if this is about what caused the 100 hours of pain, you need expert evidence on that.

[00:16:45] Speaker 00:
So then the negligence theory shifts a little bit to be about, well, I was told that I would get sort of reprogramming support whenever I needed it, and they didn't deliver on that.

[00:16:53] Speaker 00:
And that's not rocket science.

[00:16:55] Speaker 00:
I think it is still more complicated than that because again the question is could a lay juror decide that a Medtronic representative showing up either in the days before Mr. Hunt presents to the ER or at the ER would have just again focusing on causation would have alleviated any of his discomfort again

[00:17:14] Speaker 00:
The record is unambiguous.

[00:17:16] Speaker 00:
It's not disputed.

[00:17:16] Speaker 00:
The leads moved within his epidural space.

[00:17:19] Speaker 00:
Would a Medtronic representative coming and assisting Mr. Hunt as he demanded without the oversight of a qualified physician have alleviated that pain, have made it worse?

[00:17:30] Speaker 00:
It might not be rocket science, but this is sort of medical questions that go beyond the capacity of lay jurors to perceive with their senses.

[00:17:39] Speaker 00:
Pivoting from the negligence claim to the Consumer Protection Act claim, unless there are any other questions on negligence.

[00:17:45] Speaker 00:
I think the district court correctly concluded on the Consumer Protection Act claim that there was, to quote the district court, no evidence in the record, no evidence in the record that would support a reasonable inference that Medtronic was misleading sort of the public at large about the kind of programmer patients would receive.

[00:18:02] Speaker 00:
That is what's required to state a claim, to prevail on a claim under the Consumer Protection Act.

[00:18:08] Speaker 00:
The statute disclaims that it shall not be construed to forbid practices that are not injurious to the public as opposed to to the private plaintiff.

[00:18:16] Speaker 00:
That is what sort of imbues the case with the public interest that brings it within the scope of this statute, which opens up sort of like a private attorney general statute.

[00:18:25] Speaker 00:
you know, a panoply of extra remedies, attorney's fees, things like that.

[00:18:28] Speaker 00:
But there's nothing in the record, nothing, except Mr. Hunt's conjecture that supports even an inference that other patients were misled in the same way.

[00:18:37] Speaker 00:
Mr. Hunt's entire case on the Consumer Protection Act claim comes down to this.

[00:18:42] Speaker 00:
I was harmed in this way, or I say I was, and so it's reasonable to infer that others were as well.

[00:18:48] Speaker 02:
Didn't he take the deposition of Medtronic's salesman?

[00:18:52] Speaker 02:
Yes.

[00:18:52] Speaker 02:
And didn't he ask him what the regular custom and practice of mectronics was in dealing with the patients of buyers?

[00:19:03] Speaker 00:
There were many questions put to the representatives, both Mr. Kilpatrick and Mr. Peterson, about the sort of conversations that the representatives have with patients during the trial process and then after the implant.

[00:19:12] Speaker 00:
Yes.

[00:19:13] Speaker 02:
And is there any evidence that that conversation would be repeated to other members of the public?

[00:19:21] Speaker 00:
Mr. Kilpatrick testified as to what kind of conversations he typically has with patients who are going to undergo a trial.

[00:19:28] Speaker 02:
Wasn't he asked whether that was a custom and practice of his company?

[00:19:32] Speaker 00:
He did not speak to standardized practices, scripts, anything like that.

[00:19:36] Speaker 00:
There are repeated assertions in Mr. Hunt's opening and reply briefs that Medtronic's representatives use standardized presentation scripts.

[00:19:43] Speaker 00:
That is just totally unsubstantiated.

[00:19:45] Speaker 00:
We pointed this out, of course, in our answering brief.

[00:19:47] Speaker 00:
We said there's lots of assertions about standardized presentations.

[00:19:51] Speaker 00:
For one thing,

[00:19:53] Speaker 00:
You know, Mr. Hunt doesn't need evidence of standardized presentations.

[00:19:55] Speaker 00:
He needs evidence of standardized misrepresentations.

[00:19:58] Speaker 00:
But for another, there is no record evidence of standardized presentations or scripts.

[00:20:03] Speaker 00:
Mr. Hunt then comes back on reply and says, well, here are my record sites.

[00:20:06] Speaker 00:
He provides four record sites.

[00:20:08] Speaker 00:
These are on page 10 of his reply brief.

[00:20:10] Speaker 00:
One of them is Mr. Kilpatrick testifying at his deposition

[00:20:14] Speaker 00:
I don't remember the specifics of any discussions that I had with Mr. Hunt all those years ago except that I met him there.

[00:20:20] Speaker 00:
The only thing I remember is meeting William Hunt.

[00:20:22] Speaker 00:
I don't remember what was discussed.

[00:20:25] Speaker 00:
Two of the record sites are Mr. Kilpatrick, again the Medtronic representative,

[00:20:29] Speaker 00:
describing the kind of conversations he usually has with patients who are going to undergo a trial.

[00:20:34] Speaker 00:
He says, I tell them sort of what kind of, what the feeling, the sensation will be.

[00:20:38] Speaker 00:
I tell them how they can turn it on and off, how to charge it.

[00:20:42] Speaker 00:
That's it.

[00:20:42] Speaker 00:
There's nothing about, you know, Medtronic representatives are instructed to tell patients X, Y, or Z. Nothing like that.

[00:20:49] Speaker 00:
the fourth citation that appears on page 10 of the reply brief that again is in support of the assertion that their standardized representations is Is mr. Kilpatrick again saying, you know, I remember meeting mr. Hunt I can't tell you exactly when it was it probably would have been when he had his trial I don't remember anything more specific than that.

[00:21:09] Speaker 00:
Those are the assertions in mr. Hunt's brief about standardized representations and again

[00:21:15] Speaker 00:
Even if the court is to construe those sort of in the light most favorable to Mr. Hunt and say, well, if that's sort of how Mr. Kilpatrick says, he usually talks to patients, maybe other people do too.

[00:21:24] Speaker 00:
None of that goes to whether there are standardized misrepresentations about the program or patients will receive.

[00:21:30] Speaker 00:
And against the sort of bare record that Mr. Hunt developed on that, the district court observed Medtronic put in unrebutted evidence that it has never allowed patients to use or to take home the clinician programmer and that the conditions of FDA's approval of the device would not allow that.

[00:21:47] Speaker 00:
On that record, it is simply implausible.

[00:21:49] Speaker 00:
It's unreasonable, I should say.

[00:21:52] Speaker 00:
it would require several leaps of inferences to get to Medtronic as misleading the public at large in a way that would support a Consumer Protection Act claim.

[00:22:02] Speaker 00:
Now, if there are no questions with the Consumer Protection Act claim, I'll spend just a minute on the first argument in our brief.

[00:22:09] Speaker 00:
I do think that the court could appropriately strike Mr. Hunt's brief and dismiss the appeal.

[00:22:14] Speaker 03:
I understand- That's a pretty extreme remedy, so I'll speak for myself.

[00:22:18] Speaker 03:
I don't think that would be justified here.

[00:22:20] Speaker 00:
I completely... Use your time on that.

[00:22:23] Speaker 00:
I understand.

[00:22:23] Speaker 00:
I will take the court's direction.

[00:22:25] Speaker 00:
If the court has no further questions then on either negligence or the Consumer Protection Act claim, I will rest on our submissions.

[00:22:33] Speaker 03:
Thank you very much, Mr. Seska.

[00:22:34] Speaker 00:
Thank you.

[00:22:38] Speaker 03:
Mr. Freeman, rebuttal.

[00:22:42] Speaker 04:
Thank you.

[00:22:43] Speaker 04:
A couple of responses to some of the representations that were just made.

[00:22:49] Speaker 04:
The comment that under Washington law, it's clear that experts are required to define the duty and breach the duty here.

[00:22:56] Speaker 04:
That's really the point.

[00:22:58] Speaker 04:
There are no Washington cases at all that substantiate that finding.

[00:23:04] Speaker 04:
In fact, the trial court had to go to a case out of Texas to find any citation that supports that determination.

[00:23:12] Speaker 04:
But that case was materially different.

[00:23:16] Speaker 04:
It involved a negligent misrepresentation

[00:23:19] Speaker 04:
of a device in a marketing scheme and of course in that scenario you would need to know what the capabilities and functions of a device are versus what was represented to make that determination.

[00:23:30] Speaker 04:
This would be the first time any Washington case has found that outside of a medical malpractice or legal malpractice scenario

[00:23:38] Speaker 04:
There's expert testimony required to either define a duty or to establish a breach of that duty.

[00:23:45] Speaker 04:
And there's a reason for that.

[00:23:46] Speaker 04:
And what we're talking about is ordinary care.

[00:23:50] Speaker 04:
Our theories of negligence on this case have not evolved over the course of the case.

[00:23:56] Speaker 04:
From the very first complaint that was filed in the Superior Court in Pierce County, the theory on negligence was one of ordinary care.

[00:24:06] Speaker 03:
Well, that's a broad description of negligence as a general matter, but what is this?

[00:24:11] Speaker 03:
Is this theory of negligence that Medtronic should have after the device allegedly malfunctioned should have done something?

[00:24:19] Speaker 03:
Is that specific?

[00:24:20] Speaker 03:
That's correct.

[00:24:21] Speaker 04:
That is specifically what it is.

[00:24:22] Speaker 04:
And there's a lot of conversation about his medical history and this accident where the leads moved as being potentially causation, but perhaps the leads moving is what

[00:24:35] Speaker 04:
Was a proximate cause to to what he felt but that was 13 months 14 months prior to The issue in March of 2021.

[00:24:44] Speaker 04:
It wasn't like we got in an accident and then two days later.

[00:24:48] Speaker 02:
He's having these problems There's well more than a year that's gone by but yours your causation argument assumes that it was the Device that was causing the pain rather than the results of the accident

[00:25:05] Speaker 04:
So, well, we can point to that 14 or 15 months also, but I think that Mr. Hunt can certainly testify to what he's feeling inside his body, and that he knows what these electric shocks are, and that he knows that that's where they're coming from, the electric shocks, and then once he beats the device into submission, they stop.

[00:25:27] Speaker 04:
So, and by the way, there can be more than one proximate cause to a thing, but for the accident, would this have ever

[00:25:34] Speaker 04:
happened, very well may be.

[00:25:36] Speaker 04:
But that's not the issue.

[00:25:38] Speaker 04:
The issue is whether or not Medtronic, who's got the sole ability to come in and try to help him either manipulate the electrical impulses or shut the device down in totality.

[00:25:49] Speaker 04:
They're the only ones that can do it.

[00:25:51] Speaker 04:
It would be like in your office, the only person that can come in is your IT guy, and that's his job, and he doesn't.

[00:25:57] Speaker 04:
You're going to say he did something wrong.

[00:25:59] Speaker 02:
And how do you face the testimony that Judge McEwen has read that your own experts said McCrown did nothing wrong?

[00:26:09] Speaker 04:
But you've got to go back and look at what the purpose of the experts were.

[00:26:12] Speaker 04:
Those experts weren't asked the question by us.

[00:26:16] Speaker 04:
That's not the purpose that they were there.

[00:26:18] Speaker 04:
They were there to be able to explain Mr. Hunt's very complicated medical history.

[00:26:25] Speaker 04:
That's what they were there for.

[00:26:26] Speaker 04:
They were never asked the question of, do you think Medtronic did something wrong?

[00:26:30] Speaker 04:
That wasn't their role in this case.

[00:26:32] Speaker 04:
They were asked that.

[00:26:34] Speaker 04:
They were asked that not by us.

[00:26:36] Speaker 04:
That's not what they were retained for.

[00:26:38] Speaker 04:
They were asked that.

[00:26:39] Speaker 01:
Well, what they said is, nope, that's not in the purview or expert testimony, period.

[00:26:45] Speaker 04:
Right.

[00:26:45] Speaker 01:
But so they we didn't have any expert testimony on causation.

[00:26:50] Speaker 01:
Is that because I don't believe that I understand that you don't.

[00:26:52] Speaker 01:
That's right.

[00:26:53] Speaker 01:
But there is none.

[00:26:54] Speaker 04:
There is not OK.

[00:26:55] Speaker 04:
Right.

[00:26:56] Speaker 04:
That is true.

[00:26:57] Speaker 04:
I am now over time.

[00:27:00] Speaker 04:
So thank you.

[00:27:01] Speaker 04:
I appreciate your time this morning.

[00:27:02] Speaker 03:
Mr. Freeman.

[00:27:02] Speaker 03:
Thank you.

[00:27:03] Speaker 03:
Thank you.

[00:27:03] Speaker 03:
Thank you.

[00:27:04] Speaker 03:
This case is submitted.