                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                            July 12, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
SUSAN ZIOTS, an individual,

      Plaintiff - Appellant,

v.                                                         No. 15-4148
                                                   (D.C. No. 2:15-CV-00104-DS)
STRYKER CORPORATION, a foreign                               (D. Utah)
corporation; STRYKER SALES
CORPORATION, a foreign corporation,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, O’BRIEN, and GORSUCH, Circuit Judges.
                   _________________________________

      Susan Ziots appeals from a summary judgment entered in favor of Stryker

Corporation and Stryker Sales Corporation (collectively “Stryker”). At stake is a

statute of limitations bar of Ziots’ product liability claims. The issue is whether she

exercised due diligence in timely identifying Stryker as the manufacturer of the

allegedly defective product. We affirm.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                    I. Background

      Ziots had shoulder surgery in 2005 at a hospital in St. George, Utah (“the

Hospital”). She was treated with a pain pump, which is a device that delivers a

controlled amount of medication to the surgery site. In the years that followed, Ziots

suffered severe degeneration of the cartilage in her shoulder, which she attributed to

the pain pump.

      In 2009, Ziots joined a mass-tort lawsuit in California against several pain

pump manufacturers. All plaintiffs in the California suit were required to file

“plaintiff product ID fact sheets” identifying the specific products they believed

caused their injuries. Based on an operative report from the Hospital stating a

“PainBuster catheter” was used during her surgery, Aplt. App., Vol. 1 at 221, Ziots

identified the “I-Flow ON-Q PainBuster” pain pump in her product identification

sheet, id. at 218. I-Flow responded on March 11, 2011, stating it did “not possess a

basis to affirm or contest” whether it manufactured the pain pump used in Ziots’

surgery because her product identification sheet “and documentation attached to that

sheet, [were] inadequate.” Id., Vol. 3 at 11. As I-Flow further explained, Ziots’

failure to provide “information confirming that the pump used during [her] surgery

was manufactured by I-Flow” and the operative report’s reference to a “‘PainBuster

catheter’ [did] not confirm product ID as to I-Flow.” Id.

      Two years later, on March 6, 2013, Ziots served a deposition subpoena and

subpoena duces tecum on the Hospital seeking information about the pain pump used

in her surgery. On March 11, 2013, the Hospital produced records showing Stryker,

                                           2
not I-Flow, manufactured the pump. Ziots’ motion seeking to amend her complaint

in the California suit to add Stryker as a defendant was denied as untimely. The

California Court of Appeals affirmed.

      Ziots filed this action in Utah federal district court on February 13, 2015,

raising the claims she was not permitted to pursue in the California suit. Stryker

moved to dismiss Ziots’ suit because the claims were barred by the applicable statute

of limitations. The district court converted Stryker’s motion to dismiss to a motion

for summary judgment and, after supplemental briefing, entered summary judgment

in favor of Stryker.

                                II. Standard of Review

      We review the grant of summary judgment de novo and apply the same

standard as the district court. Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877,

882 (10th Cir. 2015), cert. denied, 136 S. Ct. 690 (2015). Summary judgment is

appropriate if, viewing the evidence in the light most favorable to the nonmoving

party, the movant shows there is no genuine dispute of material fact and he is entitled

to judgment as a matter of law. Howard v. Waide, 534 F.3d 1227, 1235 (10th Cir.

2008); Fed. R. Civ. P. 56(a).

      A federal court with diversity jurisdiction “applies the substantive law of the

state where it is located, including the state’s statutes of limitations.” Elm Ridge

Expl. Co., LLC v. Engle, 721 F.3d 1199, 1210 (10th Cir. 2013).




                                            3
                                     III. Analysis

      Ziots concedes that her claims are subject to Utah’s two-year statute of

limitations on product liability actions, but contends the statute does not bar them and

any factual dispute about whether it does must be resolved by a jury; summary

judgment is inappropriate. We discern no genuine dispute of material fact precluding

summary judgment.

      In Utah, a product liability claim “shall be brought within two years from the

time the individual who would be the claimant in the action discovered, or in the

exercise of due diligence should have discovered, both the harm and its cause.” Utah

Code Ann. § 78B-6-706 (2008). Due diligence is “diligence which is appropriate to

accomplish the end sought and which is reasonably calculated to do so.” Aragon v.

Clover Club Foods Co., 857 P.2d 250, 253 (Utah Ct. App. 1993) (internal quotation

marks omitted). “Cause” means both the manufacturer of the product and the causal

relation to the harm. Id.

      Ziots discovered she was injured by a pain pump long before February 13,

2013 (two years before filing her complaint), but she did not discover who

manufactured the pump until March 11, 2013. Nevertheless, Stryker argues, the

statute of limitations bars Ziots’ claims because Ziots failed to exercise due

diligence. Had she done so, it says, she could have identified Stryker as the

manufacturer of the pump much earlier. To be entitled to summary judgment,

Stryker must show there is no genuine dispute of material fact on this issue. See

Robert L. Kroenlein Trust ex rel. Alden v. Kirchhefer, 764 F.3d 1268, 1274 (10th Cir.

                                           4
2014) (“The statute of limitations is an affirmative defense, so the defendant [moving

for summary judgment] bears the burden of demonstrating that there is no material

fact in dispute on the issue of whether the statute of limitations bars the claim.”

(citations omitted)). A dispute is “genuine” if there is sufficient evidence for a

rational trier of fact to resolve it either way. Savant Homes, Inc. v. Collins, 809 F.3d

1133, 1137 (10th Cir. 2016). So the question is whether the record reveals sufficient

evidence for a rational jury to find Ziots had exercised due diligence in discovering

the manufacturer the pain pump and, if not, whether due diligence required her to

discover the manufacturer prior to February 13, 2013.

      Ziots claims to have exercised due diligence. According to her, reliance on the

operative report to identify I-Flow as the manufacturer was reasonable and she had

no reason to suspect otherwise until March 11, 2013, when she received the hospital

records identifying Stryker, not I-Flow, as the manufacturer. But the operative report

merely says a “PainBuster catheter” was used during Ziots’ surgery—it makes no

mention of an I-Flow pain pump, or any other pain pump for that matter. See Aplt.

App., Vol. 1 at 220-21. And although Ziots claims “PainBuster” is a “brand of pain

pump trademarked and exclusively distributed by I-Flow,” Opening Br. at 19, she

does not explain why it was reasonable to rely on a brief reference to a catheter to

identify the manufacturer of a pain pump. But that does not end the debate.

      Even if Ziots reasonably relied on the operative report, the district judge

properly concluded that I-Flow’s March 11, 2011, response to Ziots’ product

identification sheet placed her “on notice to make further inquiry.” Macris v.

                                            5
Sculptured Software, Inc., 24 P.3d 984, 990 (Utah 2001) (“[A]ll that is required to

trigger the statute of limitations is sufficient information to put plaintiffs on notice to

make further inquiry if they harbor doubts or questions.”). I-Flow’s inability to

confirm whether it manufactured the pain pump based on the information Ziots

provided was enough to raise questions about whether she had identified the correct

manufacturer, and Ziots made no attempt to answer these questions until she

subpoenaed additional records from the Hospital in 2013. Contrary to Ziots’

suggestion, I-Flow’s promise to conduct additional investigation into the matter did

not relieve Ziots of her responsibility to properly identify the manufacturer. Due

diligence requires affirmative action, not passive (and convenient) assumptions.

       Even when viewed in the light most favorable to Ziots, insufficient evidence

exists for a rational jury to find she exercised due diligence in discovering the

manufacturer of the pain pump used in her surgery. She has not satisfactorily

explained why undiscriminating reliance on the operative report’s reference to a

“PainBuster catheter” was reasonable in these circumstances. But if (hypothetically)

it was, I-Flow’s response to her product identification sheet placed her on notice in

March of 2011 that further investigation was required. On this record, a rational jury

could not find Ziots to have exercised the level of diligence “appropriate to

accomplish the end sought and which is reasonably calculated to do so.” Aragon,

857 P.2d at 253.

       Finally, no rational jury could find that diligent inquiry should not have led

Ziots to the manufacturer before February 13, 2013. When Ziots finally sought

                                             6
additional information from the Hospital on March 6, 2013, she learned the true

manufacturer of the pain pump in less than a week. Ziots does not claim she was

prevented from conducting this inquiry sooner and has offered no viable explanation

for her failure to do so.1 Duly diligent inquiry would have revealed Stryker as the

manufacturer of the pain pump long before February 13, 2013.

                                   IV. Conclusion

      There is no genuine dispute of material fact as to whether the statute of

limitations bars Ziots’ claims. We therefore affirm the district court’s order granting

summary judgment.


                                            Entered for the Court


                                            Terrence L. O’Brien
                                            Circuit Judge




      1
         Ziots does not argue the discovery stay in the California suit prevented her
from seeking this information previously. The stay did “not limit the ability of the
parties to do limited third party discovery to determine product identification by
sending subpoenas and conducting limited depositions of . . . facilities and hospitals.”
Aplt. App., Vol. 1 at 229. And regardless, the discovery stay was lifted in August
2012.
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