Metropolitan News-Enterprise


Monday, December 17, 2012


Page 3


Court of Appeal to Reconsider Ruling on Liability for Medical Implants


By a MetNews Staff Writer


A Court of Appeal panel has said it will reconsider its ruling allowing a femur implant patient to sue the device’s manufacturer on theories of strict liability for manufacturing defect and negligence.

Div. Three Thursday granted rehearing on its own motion after Howmedica Osteonics Corporation and Stryker Corporation asked the court to reconsider the Nov. 27 ruling in Garrett v. Howmedica Osteonics Corporation, B234368.

The day before Div. Three filed its ruling, the California Supreme Court decided Sargon Enterprises, Inc. v. University of Southern California, A191550. Sargon held that a Los Angeles Superior Court judge did not abuse his discretion in excluding expert testimony that USC may have cost a small dental implant manufacturer more than $1 billion in profits by breaching a contract to conduct a clinical trial of one of its products.

In Garrett, the plaintiff, a cancer patient, alleged that the prosthetic device that was implanted to replace the middle portion of his femur in 2007 fractured two years later.

The complaint alleged causes of action for strict liability based on manufacturing and design defects, strict liability based on failure to warn, breach of express warranty, and negligence.

In moving for summary judgment last year, the defendants presented a declaration from a mechanical engineer, who opined that the fracture was caused by normal human activity that placed a greater load on the product than it could bear over time.

In opposition, the plaintiff offered a declaration by a metallurgist, who said the area in which the fracture occurred failed to meet standards of hardness established by ASTM International, formerly the American Society for Testing and Materials, a leading industry organization.

The Court of Appeal said Los Angeles Superior Court Judge Cesar Sarmiento erred in granting summary judgment in the face of the plaintiff’s expert’s opinion that the device failed because the defendants made it from materials that failed to meet industry standards. To the extent there may have been shortcomings in the expert’s work, Justice Walter Croskey explained, the defense can address those on cross-examination, but there was no showing “that his conclusions are speculative, conjectural or lack a reasonable basis.”

The panel said Thursday that it would “consider the impact, if any, on this appeal of the recent opinion…in Sargon.”

The court ordered additional briefing, which is to be completed by Jan. 31. 


Copyright 2012, Metropolitan News Company