Metropolitan News-Enterprise


Thursday, March 7, 2013


Page 1


C.A. Rules Again for Cancer Patient in Implant Dispute


By a MetNews Staff Writer


A femur implant patient whose prosthesis fractured may sue the device’s manufacturer on theories of strict liability for manufacturing defect and negligence, the Court of Appeal for this district ruled yesterday for the second time.

Div. Three announced in December that it would reconsider, on its own motion, the Nov. 27 ruling in Garrett v. Howmedica Osteonics Corporation, B234368. That decision, the panel said, was prompted by the state Supreme Court’s ruling in Sargon Enterprises, Inc. v. University of Southern California, A191550.

Sargon, decided the day before the original Garrett ruling, 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.

Todd Garrett sued Howmedica Osteonics Corporation and Stryker Corporation in 2009. His 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, 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.

Justice Walter 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, noting the ruling there dealt with exclusion of expert testimony at trial—following an eight-day hearing at which the expert testified—rather than on summary judgment.

“The rule that a trial court must liberally construe the evidence submitted in opposition to a summary judgment motion applies in ruling on both the admissibility of expert testimony and its sufficiency to create a triable issue of fact….” the jurist wrote. “In light of the rule of liberal construction, a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial.”

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


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