Jean Rustico v. Intuitive Surgical, Inc. ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEAN RUSTICO and JOHN No. 20-15009
RUSTICO,
Plaintiffs-Appellants, D.C. No.
5:18-CV-02213-LHK
v.
INTUITIVE SURGICAL, INC., OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted February 11, 2021
San Francisco, California
Filed April 6, 2021
Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit
Judges, and James David Cain, Jr., * District Judge.
Opinion by Judge Bea
*
The Honorable James David Cain, Jr., United States District Judge
for the Western District of Louisiana, sitting by designation.
2 RUSTICO V. INTUITIVE SURGICAL
SUMMARY **
Choice-of-Law / Statute of Limitations
The panel affirmed the district court’s summary
judgment in favor of Intuitive Surgical, Inc., and held that a
diversity product liability action was barred by the two-year
statute of limitations in Cal. Code of Civ. Pro. § 335.1.
Plaintiffs Jean and John Rustico were both citizens and
residents of Connecticut at the time of the alleged injury, and
Intuitive was a Delaware corporation with its headquarters
in California. Jean Rustico experienced complications with
Intuitive’s da Vinci surgical robot during her surgery in
Connecticut in January 2012. In January 2013, a year before
the expiration of California’s statute of limitations, Intuitive
proposed a general tolling agreement to all putative
claimants who sought to file personal injury claims arising
out of the da Vinci surgical robot. On February 3, 2014,
counsel for the Rusticos emailed Intuitive and submitted a
list of names that included the Rusticos to be included in the
Tolling Agreement.
The panel held that the California – not Connecticut –
statute of limitations applied. The panel applied the three-
step California “government interest” analysis for resolving
the choice-of-law question. Under step one, the parties
agreed that the laws of California and Connecticut differed,
with California having a two-year statute of limitations for
product liability claims, and Connecticut having a three-year
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
RUSTICO V. INTUITIVE SURGICAL 3
statute of limitations. Absent tolling, the Rusticos’ claims
would be untimely under California law but timely under
Connecticut law. Under step two, the panel determined what
interest, if any, the respective states had in seeing their
respective laws applied to the case. The panel held that
California had legitimate interests in the application of its
statute of limitations here because it would protect Intuitive,
which is headquartered in California, and protect the district
court, which is located in California, from the burden of
litigating the Rusticos’ expired product liability claims. The
panel held further that the district court erred in failing to
consider whether Connecticut had any interest in seeing its
own statute of limitations applied. The panel held, however,
that despite this error, reversal was not warranted. The
Rusticos failed to prove that they were members of the class
of persons whom Connecticut’s statute of limitations was
designed to protect. Because California – but not
Connecticut – had a legitimate interest, there was a “false
conflict” that led the panel to apply California law. The
panel noted that even if it inferred that Connecticut had some
interest in the application of its law, and the panel proceeded
to step three, it was clear that California had a much stronger
interest that would be more impaired if its law were not
applied.
The panel held that the Tolling Agreement did not render
the Rusticos’ claims timely. Although counsel executed the
agreement on August 9, 2013, the Tolling Agreement did not
commence until counsel submitted Mr. Rustico’s name on
February 3, 2014, which was a few weeks after the two-year
anniversary of Ms. Rustico’s surgery, and California’s two-
year statute of limitations had expired. Because the Tolling
Agreement expressly preserved Intuitive’s statute-of-
limitations defense for the applicable jurisdiction, Intuitive
4 RUSTICO V. INTUITIVE SURGICAL
was entitled to employ its statute-of-limitations defense
under California law.
The panel held that equitable estoppel did not apply to
the Rusticos’ claims. The Rusticos failed to submit any
evidence that identified a misrepresentation, material
omission, or false promise made on behalf of Intuitive.
COUNSEL
David B. Newdorf (argued), Newdorf Legal, Oakland,
California; Marc J. Mandich (argued), François M.
Blaudeau, and Evan T. Rosemore, Southern Med Law,
Birmingham, Alabama; Ronnie G. Penton, Penton Law
Firm, Bogalusa, Louisiana; Nancy L. Hersh, Hersh & Hersh
LLP, San Francisco, California; for Plaintiffs-Appellants.
Allen J. Ruby (argued) and Emily Reitmeier, Skadden Arps
Slate Meagher & Flom LLP, Los Gatos, California, for
Defendant-Appellee.
OPINION
BEA, Circuit Judge:
Even when all goes as planned, surgery is risky.
Technological advancements, like robotic assistance, may
reduce a doctor’s surgical footprint and decrease some of the
risks. But technology is not always perfect. Sadly, parts
sometimes break or malfunction. And when they do,
patients tend to sue, which can pose complex choice-of-law
challenges in actions against national manufacturers. That
is exactly what happened here.
RUSTICO V. INTUITIVE SURGICAL 5
Jean Rustico, a Connecticut citizen and resident at the
time, underwent a robotically assisted surgery in
Connecticut. The doctor attempted to perform the surgery
using the da Vinci surgical robot, which was designed and
manufactured in California by Intuitive Surgical, Inc.
(“Intuitive”). Unfortunately, the surgical robot
malfunctioned and caused internal injuries. Another doctor
was able to intervene and repair the injuries, but Ms. Rustico
eventually sought damages from Intuitive for its allegedly
defective product.
In an attempt to forestall litigation before she filed suit,
Intuitive offered Ms. Rustico an agreement to toll “the
applicable statute of limitations” on her anticipated claims,
presumably to provide time in which to negotiate a possible
settlement. When the tolling agreement was offered,
Ms. Rustico still had months to file her action before
California’s statute of limitations would expire. But, by the
time Ms. Rustico decided to enter into the agreement,
California’s two-year statute of limitations—but not
Connecticut’s three-year statute of limitations—had expired.
Nonetheless, Ms. Rustico filed product liability claims
against Intuitive in California. The district court granted
Intuitive’s motion for summary judgment on the basis that
California’s statute of limitations barred the claims. On
appeal, we are tasked with deciding whether the applicable
choice-of-law analysis should have led to Connecticut’s
longer statute of limitations, thereby allowing Ms. Rustico
to pursue her claims against Intuitive.
I. BACKGROUND
Jean and John Rustico, husband and wife (collectively,
the “Rusticos”), were both citizens and residents of
6 RUSTICO V. INTUITIVE SURGICAL
Connecticut at the time of the alleged injury. 1 Intuitive, a
Delaware corporation with its headquarters in California,
designed, manufactured, and sold the da Vinci surgical
robot—and continues to do so. Subject-matter jurisdiction
was based on diversity of citizenship. See 28 U.S.C. § 1332.
The Rusticos allege in the operative complaint that Intuitive
“has a substantial business presence in California.” For
example, they allege that Intuitive “directs its operations out
of California”; Intuitive’s “decision to use faulty insulation
and other faulty components, accessories and
instrumentation and the decision to not report information
about the defective product were all made in California”;
Intuitive’s “failure to identify the dangers inherent in its
product occurred in California”; and Intuitive’s
“promotional materials and advertisements all originate in
California.”
A. Ms. Rustico experiences complications with
Intuitive’s da Vinci surgical robot during her
surgery in Connecticut
On January 12, 2012, Ms. Rustico underwent robotically
assisted surgery in Connecticut to remove an ovarian mass.
Dr. Clare Zhou attempted to perform the surgery using the
da Vinci surgical robot, which was designed, manufactured,
and sold by Intuitive. During the surgery, however,
Dr. Zhou noticed that the surgical robot had malfunctioned,
causing “an adventitial injury about 3–5mm in size.”
Dr. Zhou quickly contacted a vascular surgeon, who
intervened and repaired the injury. Dr. Zhou then abandoned
the robotic assistance, which was intended to be minimally
1
The operative complaint asserts that the Rusticos are citizens of
Florida. During oral argument, however, both parties agreed that the
Rusticos were citizens of Connecticut at the time of the surgery.
RUSTICO V. INTUITIVE SURGICAL 7
invasive, and completed the rest of the procedure without the
da Vinci surgical robot. Ms. Rustico was discharged in good
condition a few days later.
Shortly after the surgery, Dr. Zhou informed the Rusticos
about the “complications from the robotic surgery.”
Dr. Zhou explained that the da Vinci surgical robot had
malfunctioned and caused Ms. Rustico’s internal injury. A
few days later, Dr. Zhou prepared a report that described
these complications and concluded that the da Vinci surgical
robot’s malfunctioning had caused Ms. Rustico’s injuries.
Ms. Rustico’s experience with the da Vinci surgical
robot was not an isolated incident. In 2010 alone, Intuitive
received over 130 complaints from patients who suffered
similar complications.
B. The parties enter into the Tolling Agreement
In January 2013, a year before the expiration of
California’s statute of limitations, Intuitive proposed a
general tolling agreement to all putative claimants, including
Ms. Rustico, who sought to file “personal injury claims”
against Intuitive arising out of its da Vinci surgical robot (the
“Tolling Agreement”). The Tolling Agreement provided
that the Rusticos would promise “to delay the filing of any
lawsuit,” but, if they were to file any lawsuit, they would do
so “in the Northern District of California only and only in
the form of a single plaintiff family complaint.” In
exchange, Intuitive would promise “to toll the applicable
statute of limitations for a three month period starting on the
date Intuitive Surgical is provided with [Ms. Rustico]’s
name.” Although the Tolling Agreement did not contain a
choice-of-law provision regarding the “applicable”
jurisdiction, it provided an express disclaimer regarding
Intuitive’s statute-of-limitations defense:
8 RUSTICO V. INTUITIVE SURGICAL
The tolling of the applicable statute of
limitations is not intended to and shall not for
any purpose be deemed to limit or adversely
affect any defense, other than a statute-of
limitations defense, that Intuitive Surgical
has, may have, or would have had in the
absence of this agreement. Nor does this
agreement waive or release any statute of
limitations defense that could have been
asserted before the date of the tolling period.
Upon the completion of the tolling period,
Intuitive Surgical will have all defenses
available to it as it had on the first day of the
tolling period.
(emphasis added).
On August 9, 2013, more than five months before the
expiration of California’s statute of limitations, counsel for
the Rusticos, who was representing numerous putative
claimants against Intuitive for its da Vinci surgical robot,
returned an executed copy of the Tolling Agreement. It is
undisputed, however, that the Rusticos’ claims were not
tolled on this date. The parties agree that, under the terms of
the Tolling Agreement, tolling did not commence until
Intuitive was “provided with [Ms. Rustico]’s name,” which
had not yet occurred.
On February 3, 2014—over two years after
Ms. Rustico’s surgery and nearly six months after counsel
had executed the Tolling Agreement—counsel for the
Rusticos emailed Intuitive and submitted a list of names “for
the purpose of including these folks as of today’s date in the
[Tolling Agreement].” Ms. Rustico’s name was on that list.
RUSTICO V. INTUITIVE SURGICAL 9
The parties agree that the Rusticos’ claims were tolled on
this date until she filed the instant action.
C. The Rusticos file product liability claims in
California
In April 2018, after extending the Tolling Agreement
several times, the Rusticos filed product liability claims
against Intuitive in the Northern District of California. The
district court ultimately granted Intuitive’s motion for
summary judgment on the grounds that the Rusticos’ claims
were time-barred. In doing so, the district court applied
California’s choice-of-law rule—the “governmental
interest” test—and concluded that California’s two-year
statute of limitations—rather than Connecticut’s three-year
statute of limitations—governed the claims. Because
Ms. Rustico’s surgery occurred on January 12, 2012, and
because the Tolling Agreement did not become effective
until Intuitive received Ms. Rustico’s name on February 3,
2014, the district court held that California’s statute of
limitations barred the Rusticos’ claims. The Rusticos appeal
from this decision.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court’s decision to grant
summary judgment. See Stevens v. Corelogic, Inc., 899 F.3d
666, 672 (9th Cir. 2018). We “must determine, viewing the
evidence in the light most favorable to the nonmoving party,
whether there are any genuine issues of material fact and
whether the district court correctly applied the relevant
substantive law.” Buffets, Inc. v. Klinke, 73 F.3d 965, 967
(9th Cir. 1996).
10 RUSTICO V. INTUITIVE SURGICAL
III. DISCUSSION
A. The California—not Connecticut—statute of
limitations applies
It is well-established that in diversity cases, such as this
one, “federal courts must apply the choice-of-law rules of
the forum state.” Ledesma v. Jack Stewart Produce, Inc.,
816 F.2d 482, 484 (9th Cir. 1987) (citing Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). In
California, the state in which the forum sits, courts have
“adopted and consistently applied the so-called
‘governmental interest’ analysis as the appropriate general
methodology for resolving choice-of-law questions.”
McCann v. Foster Wheeler LLC, 225 P.3d 516, 524 (Cal.
2010). 2 This approach generally involves three steps:
First, the court must determine whether the
substantive laws of California and the foreign
jurisdiction differ on the issue before it.
Second, if the laws do differ, then the court
must determine what interest, if any, the
competing jurisdictions have in the
application of their respective laws. If only
one jurisdiction has a legitimate interest in
the application of its rule of decision, there is
a “false conflict” and the law of the interested
jurisdiction is applied. But if more than one
jurisdiction has a legitimate interest, the court
must move to the third stage of the analysis,
which focuses on the comparative
The parties agree that the district court properly determined that
2
California’s choice-of-law rule, the “governmental interest” test, applies
here.
RUSTICO V. INTUITIVE SURGICAL 11
impairment of the interested jurisdictions.
This third step requires the court to identify
and apply the law of the state whose interest
would be the more impaired if its law were
not applied.
Cooper v. Tokyo Elec. Power Co. Holdings, 960 F.3d 549,
559 (9th Cir. 2020) (internal citations omitted).
Under step one, the parties agree that the laws of
California and Connecticut differ. California has a two-year
statute of limitations for most tort claims alleging personal
injury, including product liability claims. See Cal. Code Civ.
P. § 335.1. Connecticut, by contrast, has a three-year statute
of limitations specifically for product liability claims. See
Conn. Gen. Stat. § 52-577a. Assuming for now that no
tolling is warranted, the Rusticos’ claims would be untimely
under California law—but timely under Connecticut law—
because they entered into the Tolling Agreement on
February 3, 2014, which was more than two (but less than
three) years after Ms. Rustico’s surgery on January 12, 2012.
Next, under step two, we must determine what interest,
if any, California and Connecticut have in seeing their
respective laws applied to this case. See Cooper, 960 F.3d
at 560 (citing Offshore Rental Co. v. Cont’l Oil Co., 583 P.2d
721, 724–25 (Cal. 1978)). “Only if each jurisdiction
involved has a legitimate but conflicting interest in applying
its own law will there be a ‘true conflict,’ requiring us to
move on to step three of the analysis.” Id. (quoting Offshore
Rental, 583 P.2d at 725–26). The district court held that
“California is the only interested state” because (1) the sole
defendant is from California and (2) the forum is in
California. Because the district court determined that a
“false conflict” existed, it declined to proceed to step three
12 RUSTICO V. INTUITIVE SURGICAL
to compare the nature and strength of each state’s interest in
seeing its own law applied.
We have no doubt that California has legitimate interests
in the application of its statute of limitations here. We have
acknowledged that California’s statute of limitations serves
two purposes: (1) “it protects state residents from the burden
of defending cases in which memories have faded and
evidence has been lost,” and (2) “it protects the courts of the
state from the need to process stale claims.” Ledesma,
816 F.2d at 485 (internal citation omitted). Here, the
application of California law would serve the dual purpose
of protecting Intuitive, which is headquartered in California,
and protecting the district court, which is located in
California, from the burden of litigating the Rusticos’
expired product liability claims.
Our prior holding in Nelson v. International Paint Co.,
716 F.2d 640 (9th Cir. 1983) is particularly instructive here.
In Nelson, a Texas plaintiff was injured in Alaska and
brought tort claims against a California defendant in
California. Id. at 642. We addressed whether the district
court properly applied California’s shorter statute of
limitations, rather than Texas’s or Alaska’s longer statute of
limitations. Id. at 644–45. Relying on Ashland Chemical
Co. v. Provence, 181 Cal. Rptr. 340 (Ct. App. 1982), we
affirmed and held that “[o]nly California has an interest in
having its statute of limitations applied” because the forum
is in California and the sole defendant is from California.
Nelson, 716 F.2d at 644–45; see also Ashland, 181 Cal. Rptr.
at 341 (holding that “California is the only interested state”
even though “Kentucky is the plaintiff’s domicile, the place
of contracting, and the place of payment” because “none of
these contacts gives Kentucky an interest in having its statute
of limitations applied”). We reasoned that “California courts
RUSTICO V. INTUITIVE SURGICAL 13
and a California resident would be protected by applying
California’s statute of limitations,” so the application of
California law “would . . . advance its underlying policy.”
Nelson, 716 F.2d at 644–45 (quoting Ashland, 181 Cal. Rptr.
at 341–42) (explaining that “Kentucky has no interest in
having its statute of limitations applied because . . . . there
are no Kentucky defendants and Kentucky is not the
forum”). Indeed, “California’s interest in applying its own
law is strongest when [like here] its statute of limitations is
shorter than that of the foreign state, because a ‘state has a
substantial interest in preventing the prosecution in its courts
of claims which it deems to be stale.’” Deutsch v. Turner
Corp., 324 F.3d 692, 717 (9th Cir. 2003) (quoting
Restatement (Second) of Conflict of Laws § 142 cmt. 4
(1998)); see also id. at 716–17 (“Where the conflict concerns
a statute of limitations, the governmental interest approach
generally leads California courts to apply California law, and
especially so where California’s statute would bar a claim.”
(internal citation omitted)).
That said, although California has a strong interest in
seeing its statute of limitations applied here, the district court
erred by failing to consider whether Connecticut has any
interest in seeing its own statute of limitations applied.
Intuitive advocates that we adopt a strict, straightforward
approach whereby courts would automatically apply
California law whenever a California resident is sued in
California. Not only have we rejected such a “per se rule,”
Ledesma, 816 F.2d at 484, but we have also recognized “rare
exceptions” to the general rule, see, e.g., Aalmuhammed v.
Lee, 202 F.3d 1227, 1237 (9th Cir. 2000) (reversing and
applying New York’s longer statute of limitations—instead
of California’s shorter one—even though the suit was
brought in California against a California defendant because
“New York’s connection with [plaintiff]’s claim [regarding
14 RUSTICO V. INTUITIVE SURGICAL
a movie script] is considerably more substantial, immediate
and concrete than California’s” because the movie was
filmed in New York). Courts, therefore, must assess
“whether each jurisdiction has legitimate interests in seeing
its own law applied.” Cooper, 960 F.3d at 560 (emphasis
added); see also Ashland, 181 Cal. Rptr. at 341 (identifying
the parties’ contacts with both California and Kentucky and
determining that “none of these contacts gives Kentucky an
interest in having its statute of limitations applied”).
Despite this error, however, reversal is not warranted.
The Rusticos contend that Connecticut has a particularly
strong interest in protecting its citizens from defective
products because Connecticut’s statute of limitations
pertains only to product liability claims—unlike California’s
statute of limitations, which “applies generally to tort claims
of all types.” Their contention may be persuasive if, for
example, Connecticut had enacted some narrowly tailored
policy demonstrating its unmistakably strong interest in
protecting in-state claimants from out-of-state
manufacturers of defective products. But Connecticut does
not treat product liability claims differently than general tort
claims: it has prescribed the same limitations period for both
types of claims. Compare Conn. Gen. Stat. § 52-577 (three-
year statute of limitations for general torts claims), with
Conn. Gen. Stat. § 52-577a (three-year statute of limitations
for products liability claims). In fact, the Connecticut
Supreme Court has found that “the legislative history of the
act [reveals] that the legislature was merely recasting an
existing cause of action and was not creating a wholly new
right for claimants harmed by a product.” King v. Volvo
Excavators AB, 215 A.3d 149, 157 (Conn. 2019) (alteration
in original) (internal citation omitted); see also Gerrity v.
R.J. Reynolds Tobacco Co., 818 A.2d 769, 774 (Conn. 2003)
(noting that Connecticut’s “product liability act was
RUSTICO V. INTUITIVE SURGICAL 15
designed in part to codify the common law of product
liability”).
The Rusticos also fail to prove that they are members of
the class of persons whom Connecticut’s statute of
limitations was designed to protect. “The basic purpose of a
statute of limitations is to protect . . . against the prosecution
of stale claims.” Restatement (Second) of Conflict of Laws
§ 142 cmt. f (1988). Both California and Connecticut agree
that statutes of limitations are designed to protect in-state
defendants and courts by cutting off liability and preventing
the litigation of stale claims. See Ashland, 181 Cal. Rptr. at
341 (noting that “[s]tatutes of limitation are designed to
protect the enacting state’s residents and courts from the
burdens associated with the prosecution of stale cases”);
Baxter v. Sturm, Ruger & Co., 644 A.2d 1297, 1300 (Conn.
1994) (“Whether they take the form of statutes of limitation
or of statutes of repose, time constraints on the initiation of
product liability actions serve the important public policy of
preventing the litigation of stale claims.”). Attempting to
use Connecticut’s statute of limitations to extend liability,
the Rusticos conflate their preference in applying
Connecticut law with Connecticut’s legitimate interest in
doing so. But the policy underlying Connecticut’s statute of
limitations would not be advanced merely because a former
Connecticut citizen would benefit from its application in a
California court.
The Rusticos urge us to depart from our decision in
Nelson by essentially conjecturing that California courts
would overrule Ashland if given the opportunity. But our
holding here is consistent with a more recent California state
court decision, McCann v. Foster Wheeler LLC, 225 P.3d
516 (Cal. 2010). McCann, residing and working in
Oklahoma, was exposed to asbestos while installing a boiler
16 RUSTICO V. INTUITIVE SURGICAL
manufactured by a New York corporation. Id. at 520–21.
Nearly fifty years after such exposure, McCann was
diagnosed with mesothelioma, prompting him to file suit in
California, to which he had moved before the diagnosis. Id.
at 521.
Under step one of the governmental interest test, the
court determined that the two relevant laws differed. Id. at
527–29. Under California law, McCann’s claims would
have been timely because California’s statute of repose—
which typically barred stale claims—did not apply to his
latent personal injury claims. Id. at 528–29. Under
Oklahoma law, however, McCann’s claims would have been
untimely because Oklahoma’s ten-year statute of repose did
apply. Id. at 527–28.
Under step two, the court determined that California and
Oklahoma each had a legitimate interest in seeing its own
law applied. California, whose law allowed claims based on
latent personal injuries as long as the claims were filed
within one year of the first manifestation of symptoms, had
a legitimate interest because the application of its law would
have extended liability for its in-state plaintiff. Id. at 532.
On the other hand, Oklahoma, whose law cut off liability
after ten years “to balance the interest of injured persons in
having a remedy available . . . against the interest of
[manufacturers],” had a legitimate interest because the
application of its law would have limited liability for the out-
of-state defendant, “providing a measure of security for
[manufacturers] whose liability could otherwise extend
indefinitely.” Id. at 529 (internal citation omitted). 3
3
The court then proceeded to step three of the governmental interest
test, where it “carefully evaluate[d] and compare[d] the nature and
RUSTICO V. INTUITIVE SURGICAL 17
Here, unlike in McCann where the application of either
state’s law would have advanced its underlying purpose, the
application of only one state’s law would advance such a
purpose. Both California and Connecticut’s statutes of
limitations are designed to protect in-state defendants and
courts by preventing the litigation of stale claims and
limiting in-state liability. But the Rusticos, now citizens of
Florida, attempt to thwart this policy by reviving their stale
claims and extending in-state liability. The application of
only California’s statute of limitations, which would bar the
claims, advances the purpose of protecting California
defendants and California courts. See id. at 534–37
(applying shorter statute of repose to limit liability); Nelson,
716 F.2d at 644 (holding that “[o]nly California has an
interest in having its statute of limitations applied” because
“the forum is in California, and the only defendant is a
California resident”). 4 Because California—but not
Connecticut—has a legitimate interest, there is a “false
conflict,” leading us to apply the California law. Although
the district court erred by failing to consider whether
Connecticut had a legitimate interest in seeing its law
strength of the interest of each jurisdiction in the application of its own
law to determine which state’s interest would be more impaired if its
policy were subordinated to the policy of the other state.” McCann,
225 P.3d at 533. The court ultimately applied Oklahoma law because
“Oklahoma’s interest (as embodied in its statute of repose) would be
more impaired if its law were not applied under the circumstances of this
case than would be California’s interest if its statute of limitations is not
applied.” Id. at 537.
4
It is of no consequence that Ms. Rustico’s surgery occurred outside
of California. See, e.g., Ashland, 181 Cal. Rptr. at 341–42 (holding that
“California is the only interested state” even though “Kentucky is the
plaintiff’s domicile, the place of contracting, and the place of payment”
because “none of these contacts gives Kentucky an interest in having its
statute of limitations applied”).
18 RUSTICO V. INTUITIVE SURGICAL
applied, the district court correctly held that California’s
two-year statute of limitations governs the claims. 5
B. The Tolling Agreement does not render the
Rusticos’ claims timely
Under the Tolling Agreement, the Rusticos promised “to
delay the filing of any lawsuit” but ultimately file any such
lawsuit “in the Northern District of California only and only
in the form of a single plaintiff family complaint.” In
exchange, Intuitive promised to “toll the applicable statute
of limitations for a three month period” (emphasis added).
The Tolling Agreement does not provide a choice-of-law
5
Even if we were inclined to infer that Connecticut has some degree
of interest in the application of its law here and we were to proceed to
step three to compare the nature and strength of each state’s interest in
the application of its own law, it is clear that California has a much
stronger interest that would be more impaired if its law were not applied.
Although Ms. Rustico was harmed by the allegedly defective product in
Connecticut, the Rusticos themselves assert that Intuitive “has a
substantial business presence in California”: Intuitive “directs its
operations out of California”; Intuitive’s “decision to use faulty
insulation and other faulty components, accessories and instrumentation
and the decision to not report information about the defective product
were all made in California”; Intuitive’s “failure to identify the dangers
inherent in its product occurred in California”; and Intuitive’s
“promotional materials and advertisements all originate in California.”
For these reasons, the Rusticos fail to demonstrate that their case
represents a “rare situation[] where the forum will entertain a claim that
is barred by its own statute of limitations but not by that of some other
state.” Restatement (Second) of Conflict of Laws, § 142 cmt. f (1988);
see also, e.g., Aalmuhammed, 202 F.3d at 1237 (reversing and applying
New York’s longer statute of limitations—instead of California’s shorter
one—even though the suit was brought in California against a California
defendant because “New York’s connection with [plaintiff]’s claim
[regarding a movie script] is considerably more substantial, immediate
and concrete than California’s” because the movie was filmed in New
York).
RUSTICO V. INTUITIVE SURGICAL 19
provision identifying “the applicable statute of limitations,”
but it expressly preserved “any statute of limitations defense
that could have been asserted before the date of the tolling
period.” In fact, the Tolling Agreement even clarified,
“Upon the completion of the tolling period, Intuitive
Surgical will have all defenses available to it as it had on the
first day of the tolling period.”
Although counsel executed the agreement on August 9,
2013, the Tolling Agreement did not commence until
Intuitive was “provided with [Ms. Rustico]’s name.”
Counsel, however, waited nearly six months after executing
the Tolling Agreement to submit Ms. Rustico’s name. By
the time counsel did so on February 3, 2014—a few weeks
after the two-year anniversary of Ms. Rustico’s surgery,
which had occurred on January 12, 2012—the time period
enacted in California’s two-year statute of limitations had
already expired. Because the Tolling Agreement expressly
preserved Intuitive’s statute-of-limitations defense for “the
applicable” jurisdiction, Intuitive is entitled to employ its
statute-of-limitations defense under California law.
The Rusticos characterize the Tolling Agreement as a
clever “bait and switch” and “gotcha” trap, but they do not
identify any words or phrases in the Tolling Agreement that
lead to such conclusions. Although they argue that it was
“impossible” to foresee that California’s statute of
limitations ultimately would apply, their own complaint
references punitive damages under California law,
undermining their claim of impropriety. The Rusticos were
not pro se plaintiffs who mistakenly let their claims expire
while attempting to navigate the proverbial minefield of
product liability litigation. On the contrary, the Rusticos
were “protected by an attorney, who is charged with
knowledge of the law in California as far as the statute of
20 RUSTICO V. INTUITIVE SURGICAL
limitations is concerned.” Kunstman v. Mirizzi, 44 Cal. Rptr.
707, 710 (Ct. App. 1965). The terms of the Tolling
Agreement do not operate to rescue the Rusticos’ untimely
claims.
C. Equitable estoppel does not apply to the Rusticos’
claims
Equitable estoppel is a doctrine that can prevent a
defendant’s reliance on the applicable statute of limitations,
and “comes into play only after the limitations period has
run.” Lantzy v. Centex Homes, 73 P.3d 517, 532 (Cal. 2003).
A defendant may be equitably estopped “from asserting the
statute of limitations as a defense to an admittedly untimely
action” when “his conduct has induced another into
forbearing suit within the applicable limitations period.” Id.It serves as “a remedial judicial doctrine employed to
[e]nsure fairness, prevent injustice, and do equity.” Spray,
Gould & Bowers v. Associated Int’l. Ins. Co., 84 Cal. Rptr.
2d 552, 558 (Ct. App. 1999). Under California law, there
are four elements:
(1) The party to be estopped must know the
facts; (2) he must intend that his conduct shall
be acted upon, or must so act that the party
asserting the estoppel had the right to believe
that it was so intended; (3) the party asserting
the estoppel must be ignorant of the true state
of facts; and (4) he must rely upon the
conduct to his injury.
Leasequip, Inc. v. Dapeer, 126 Cal. Rptr. 2d 782, 789 (Ct.
App. 2002).
The Rusticos argue that Ms. Rustico “refrained from
instituting legal proceedings in Connecticut” because
RUSTICO V. INTUITIVE SURGICAL 21
Intuitive “lulled [her] into a false sense of security” with the
Tolling Agreement, causing “her to forfeit an otherwise
timely claim” in Connecticut. 6 But the Rusticos failed to
submit any evidence that identifies a misrepresentation,
material omission, or false promise made on behalf of
Intuitive. Cf. Vu v. Prudential Prop. & Cas. Ins. Co., 33 P.3d
487, 494 (Cal. 2001) (holding that defendant would be
estopped from raising statute-of-limitations defense if
plaintiff proved that he “reasonably relied” on defendant’s
misrepresentation). The record is devoid of any
communication from Intuitive suggesting the applicability
or viability of any jurisdiction’s statute of limitations. The
Rusticos may feel tricked that their claims are time-barred,
but the Tolling Agreement explicitly informed them that
Intuitive did not “waive or release any statute of limitations
defense that could have been asserted before the date of the
tolling period.” Cf. Ashou v. Liberty Mut. Fire Ins. Co.,
41 Cal. Rptr. 3d 819, 832 (Ct. App. 2006) (holding that
defendant did not “lull [plaintiff] into a false sense of
security regarding the time bar of [the applicable statute of
limitations]” because defendant’s letter “expressly stated it
would not waive defenses” (emphasis in original)). In fact,
the Rusticos were represented by counsel, who presumably
reviewed the Tolling Agreement before voluntarily opting
into it by providing Intuitive with Ms. Rustico’s name some
weeks after the two-year anniversary of Ms. Rustico’s
surgery—despite waiting nearly six months after executing
it. Cf. Steinhart v. Cty. of L.A., 223 P.3d 57, 69 (Cal. 2010)
6
The Rusticos assume—without offering any legal support or
choice-of-law analysis—that if they had filed their claims in
Connecticut, a Connecticut court would have applied Connecticut’s
longer statute of limitations. We do not reach this issue. We also note
that, under the Tolling Agreement, the parties agreed that the sole venue
would be the Northern District of California.
22 RUSTICO V. INTUITIVE SURGICAL
(“In general, the law particularly disfavors estoppels where
the party attempting to raise the estoppel is represented by
an attorney at law.” (internal citations omitted)). We
appreciate our holding’s unfortunate consequences for the
Rusticos, but the doctrine of equitable estoppel does not
apply to their claims.
AFFIRMED.