Metropolitan News-Enterprise


Thursday, June 13, 2013


Page 1


S.C. Denies Review of Ruling for Patient in Implant Dispute


By a MetNews Staff Writer


The California Supreme Court yesterday declined to review a ruling that allows a femur implant patient whose prosthesis fractured to sue the device’s manufacturer on theories of strict liability for manufacturing defect and negligence.

The justices, at their weekly conference in San Francisco, unanimously declined to consider overturning the March 6 ruling of this district’s Court of Appeal in Garrett v. Howmedica Osteonics Corporation (2013)  214 Cal. App. 4th 173. The court also rejected requests by the Association of Defense Counsel of Northern California and Nevada and the Association of Southern California Defense Counsel for depublication of the opinion by Justice Walter Croskey of Div. Three.

Todd Garrett sued Howmedica and Stryker Corporation in 2009. In moving for summary judgment, 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, Lawrence Kashar, 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.

Croskey said Kashar’s declaration contained sufficient analysis and foundation to enable the plaintiff’s claims of manufacturing defect and negligence to go to trial. The expert, he said, provided a reasonable amount of detail as to what kinds of tests he had used, what he had found, and what standards he believed to have been violated.

To the extent there may have been shortcomings in the expert’s work, 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 justice distinguished Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, which upheld the trial judge’s exercise of discretion to act as “gatekeeper” in excluding unreliable expert opinion. Croskey noted that the Sargon opinion dealt with exclusion of expert testimony at trial—following an eight-day hearing at which the expert testified—rather than on summary judgment.

While the ruling allows Garrett to pursue his manufacturing defect and negligence claims, the court held that strict liability based on design defect does not extend to medical devices that have been ordered and implanted by a physician.

In other conference action, the justices:

•Declined to review or stay a State Bar Court ruling placing Woodland Hills attorney Marilyn Sue Scheer on involuntary inactive status until she pays a former client the outstanding portion of a $5,775.00 fee arbitration award, with interest, and obtains a reinstatement ruling from the bar court.

•Declined to review a ruling of this district’s Div. Seven that overturned a judgment of more than $3.828 million in favor of an executive whom Bank of America refused to keep on the job when it bought Countrywide Financial Corporation in 2008.

Presiding Justice Dennis Perluss said the plaintiff, Michael Winston, described in the opinion as “a human resources executive with nearly 30 years of experience in his field,” failed to present substantial evidence supporting his claim  that B of A didn’t hire him because he was a whistleblower at Countrywide.

Winston said his former employer retaliated against him because of two events that occurred in 2006, one when he had made a report to the California Division of Occupational Safety and Health of droplets of some substance from the ceiling, and the other when he refused entreaties by others at Countrywide to make a false statement in a report to Moody’s Investors Services, Inc.

What the evidence in the case actually established, Perluss said, was that the decision not to hire Winston was made by a senior executive whose action was understandable because Winston was performing duties that were substantially the same as the senior executive’s own.

The case is Winston v. Countrywide Financial, B232823. The high court voted 6-0, with Justice Ming Chin recused, to deny review and also to deny requests for publication by the Association of Defense Counsel of Northern California and Nevada, the Association of Southern California Defense Counsel, and Employers Group.


Copyright 2013, Metropolitan News Company