Legal News

Garrett v. Howmedica Osteonics Corp., recent decision on products liability and admissibility of expert testimony.

In Garrett v. Howmedica Osteonics Corp. (March 6, 2013) 13 C.D.O.S. 2479, Division Three of the Second Appellate District reversed the trial court's grant of a motion for summary judgment, in part, and also interpreted the reach and application of the recent Supreme Court decision in Sargon Enterprises, Inc. v. U.S.C. (2012) 55 Cal.4th 747, which addressed the court's role as gatekeeper with respect to the admissibility of expert opinion testimony. The Garrett court held ...

that (1) the doctrine of strict products liability based on a design defect is inapplicable to implanted medical devices available only through the services of a physician and cannot provide a basis for the defendants' liability, and (2) the exclusion of portions of the plaintiff's expert's declaration was error. In so holding, we reject the defendants' argument that the exclusion of evidence was proper under the principles recently articulated by the California Supreme Court in Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 (Sargon). We conclude that the expert's declaration creates triable issues of fact precluding summary adjudication of two counts alleged in the complaint. We therefore will reverse the judgment with directions.

Plaintiff Todd Garrett was treated for cancer in his thigh bone; the cancerous portion of the bone was removed and replaced with a medical prosthesis. Less than two years after the device was implanted by the surgeon, it failed due to a fatigue fracture in the metal. As a result, plaintiff had a new prosthesis with an artificial joint implanted which necessitated a second surgery with a longer recovery period. He sued Howmedica, Stryker and others for strict products liability based on manufacturing and design defects, strict products liability for failure to warn, breach of express warranty and negligence.

Defendants Howmedica and Stryker filed motions for summary judgment, or in the alternative summary adjudication, and argued that plaintiff had no evidence to support the essential elements of his claims and the device was not defective so they had no duty to warn as a matter of law. Defendants proffered an expert declaration and plaintiff's own discovery responses in support of their motion. Plaintiff offered expert testimony in support of his claims that anomalies detected during the expert's destructive testing of the device established the prosthesis was defective in design and/or manufacture, and that there were "strong arguments" that said anomalies caused the device to fail. Defendants objected to the declaration on multiple grounds, including lack of foundation and expert qualification.

The trial court concluded plaintiff's own discovery responses showed there was no evidence the device was defective, or that defendants had breached any warranty, or were negligent. The mere fact the device was defective was insufficient to establish liability "and that after litigating this case for almost two years, [plaintiff] could not reasonably expect to obtain evidence of a product defect, breach of warranty, negligence or causation." The court found plaintiff's expert's declaration lacked a reasoned analysis or adequate foundation for his opinions, and sustained all but one of defendants' objections. It held plaintiff had failed to state a triable issue of material fact as a matter of law and granted the MSJ. Judgment was entered for defendants and plaintiff appealed.

On appeal, plaintiff argued that the failure of the device less than two years after surgery created a triable issue of fact as to design defect and causation under the risk-benefit test; a triable issue of fact existed as to a design defect under the consumer expectations test; plaintiff's expert adequately stated the bases for his opinion and exclusion of portions of his declaration was error; and, plaintiff's expert's declaration created triable issues of fact as to design or manufacturing defect, negligence or causation. The court agreed with plaintiff, in part, and reversed the MSJ. It did hold, though, that defendants cannot be liable for strict products liability for design defect of an implanted medical device under California law.

In a brief survey of relevant cases, the court looked at the rationale for strict liability and the line of cases that has held implanted medical devices which are available only through a physician are exempt from strict products liability for design defects. Therefore, it held that plaintiff could not maintain a claim for strict liability arising out of a design defect theory against defendants. But, the court noted, that did not dispose of plaintiff's case.

The court found that plaintiff's expert's declaration created triable issues of fact on both the manufacturing defect theory of liability and negligence. Exclusion of the declaration by the trial court under Evidence Code Section 801 and 802 was error. The court went into a fairly long analysis of the Sargon decision, and noted the Supreme Court said a "[trial] court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based." The trial court's "gate-keeping" responsibility under Sections 801 and 802, however, does not "involve choosing between competing expert testimony. The high court warned that the gatekeeper's focus 'must be solely on principles and methodology, not on the conclusions that they generate.' " The Garrett court contrasted the circumstances of Sargon--in which the expert was cross examined at length over an 8-day evidentiary hearing that resulted in a 33-page ruling before ultimately being precluded from testifying--with the circumstances before it: a declaration in opposition to a motion for summary judgment:

The trial court here did not conduct an evidentiary hearing, and there was no examination of an expert witness pursuant to Evidence Code section 802. Absent more specific information on the testing methods used and the results obtained, the trial court here could not scrutinize the reasons for [plaintiff's expert's] opinion to the same extent as did the trial court in Sargon. We do not believe, however, that the absence of such detailed information justified the exclusion of [the expert's] testimony.

The rule that trial court must liberally construe the evidence submitted in opposition to a summary judgment motion apples in ruling on both he admissibility of expert testimony and its sufficiency to create a triable issue of fact. (Cites) 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. (Cites) Liberally construing the [plaintiff's expert] declaration, we conclude that the explanation provided for [his] opinion was sufficient and that the trial court could not properly exclude the expert testimony based on [his] failure to identify the particular tests employed or describe the test results. (Emphasis added.)

The court then ruled the trial court did not "liberally construe" plaintiff's expert's declaration in opposition to the MSJ, and that to sustain defendants' objections under 801 and 802 was an abuse of discretion.

The court found the declaration raised triable issues of material fact on the manufacturing defect cause of action and causation and stated it "must construe the evidence liberally in favor of Garrett as the party opposing summary judgment and must resolve all doubts in the evidence in his favor." The court reversed the MSJ, and ordered the trial court to vacate its order granting the motion and to enter a new order granting summary adjudication of the courts for failure to warn strict liability, design defect strict liability, and breach of express warranty, but to otherwise deny the MSJ.

The good news about this case is that it holds there can be no cause of action for strict products liability by a plaintiff against a manufacturer for alleged design defect for an implanted medical device available only from a physician. The less favorable news is the court's interpretation and application of Sargon. Though case law encourages courts to construe the evidence in opposition to MSJs liberally and to resolve all doubts about evidence in favor of the opposing party, this decision arguably eviscerates any usefulness of the Sargon decision in the MSJ setting. Though the court did not come right out and say it, if one extrapolates the Garrett decision, Sargon is basically limited to exclusion of expert testimony in a trial setting and/or after an evidentiary hearing at which testimony is given and subjected to scrutiny. Since parties are not required to use at trial the same experts they offer in support of, or opposition to, a MSJ, the cost and time required to hold an evidentiary hearing of an expert who is being used to oppose a MSJ is probably unworkable. Any hopes by defendants that Sargon would be particularly helpful in a MSJ setting seem to be dashed by the Garrett decision. Further, the court patently states that a moving party's expert declaration in support of a MSJ will be held to a much more stringent evidentiary standard that that of the opposing party. Those who file MSJs and object to an opposing party's expert declarations can expect to see the language of Garrett in response to those objections.