Himes v. Somatics, LLC

Michelle Himes (plaintiff), who suffered from severe depression, enrolled in an inpatient program with Dr. Raymond Fidaleo. He recommended electroconvulsive therapy (ECT), which involved applying brief but intense electrical current to a patient’s head to induce a major motor seizure. Fidaleo warned Himes that ECT carried a risk of short-term memory loss, but Himes deemed that risk acceptable and consented to treatment. Fidaleo administered ECT to Himes 26 times, each time using a device manufactured by Somatics, LLC (defendant). The ECT caused Himes to suffer permanent brain damage, severe permanent memory loss, and chronic organic brain syndrome. Himes sued Somatics for negligence, strict liability, and loss of consortium, with all claims being based on Somatics’ alleged failure to warn Fidaleo that its device could cause permanent brain damage and severe permanent memory loss. Somatics moved for summary judgment, arguing that even if Himes could prove that (1) Himes’s treatment with Somatics’ device caused her permanent brain damage and memory loss and (2) Somatics had failed to adequately warn Fidaleo of those risks, Himes’s claim still failed because she could not establish a causal connection between her injuries and Somatics’ failure to warn. Specifically, Somatics argued that Himes needed to prove that if Fidaleo had been warned of the risks, he would not have recommended ECT. Himes could not make that showing because Fidaleo testified at deposition that he still would have recommended ECT. However, Himes argued that she did not need to show that Fidaleo would have changed his treatment recommendation, only that Fidaleo would have advised Himes of the additional risks and that an objectively prudent person, once warned of the risks, would have declined the treatment. The district court granted summary judgment in Somatics’ favor. On appeal, the Ninth Circuit certified a question to the California Supreme Court, seeking guidance regarding the applicable causation standard under California law.