Can product-design-defect strict liability apply to implanted medical devices? When can expert declaration be excluded on MSJ?
The above two questions are presented in Garrett v. Howmedica Osteonics Corp. (filed 3/6/2013) B238304. Plaintiff Garrett was treated for cancer in his left femur by an orthopedic surgeon who implanted a prosthetic device, designed and manufactured by defendants, the surgeon had selected to replace the middle portion of the femur. When plaintiff complained about the pain in his thigh approximately 1½ years after the surgery, the surgeon discovered a fatigue fracture in the prosthesis, which had to be replaced in a second surgery.
Plaintiff sued the device-providing defendants for strict product liability (manufacturing defect, design defect, and failure to warn), breach of express warranty, and negligence. These defendants filed a motion for summary judgment claiming no defect factually, and no duty to warn as a mater of law. The motion was accompanied by a declaration of their expert mechanical engineer who said the prosthesis was not defective and the fracture was caused by an excessive load that the product could not bear over time.
Conceding the failure-to-warn claim could not be established, plaintiff otherwise opposed the motion with its own expert metallurgist's declaration which stated that he tested the prosthesis material and found it failed to meet certain minimum requirements for hardness, making the product defective in manufacture and design in his opinion. Defendants objected to most of the substantive portions of this declaration. The trial court sustained the objections and granted the motion, which caused judgment to be entered in favor of these defendants.
Plaintiff appealed, contending exclusion of major portions of its expert's declaration was error, and that triable issues of fact remained. The Court of Appeal, Second Appellate District, Division Three, reversed, vacating that portion of the summary adjudication concerning manufacturing defect and negligence, but directing summary adjudication of the remaining causes of action. In particular, it held that the trial court failed to liberally construe the plaintiff's expert's declaration, causing the sustaining of the objections to be an abuse of discretion.