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Metallurgist’s Expert Testimony Based on Extensive Testing of Failed Prosthetic Bone Admissible in Opposition to Summary Judgment in California


A man was treated for cancer in his femur. His orthopedic surgeon ordered a prosthetic device to replace the middle portion of his femur. The orthopedic surgeon implanted the prosthesis by attaching it to the two remaining ends of the femur using an adhesive and cross-pins.

 

Just under two years after the implantation the man began reporting pain in his thigh. The orthopedic surgeon diagnosed a fatigue fracture in the prosthesis and replaced it with a different type of prosthesis. The new prosthesis included an artificial joint. The second surgery required a considerably longer recovery time than the first surgery.

 

The man sued the companies involved in the design and manufacture of the prosthesis for (1) strict products liability based on manufacturing and design defects; (2) strict products liability based on failure to warn; (3) breach of express warranty; and (4) negligence.

 

The companies filed a motion for summary judgment. The man filed an opposition to the motion for summary judgment accompanied by a declaration by a metallurgist. The metallurgist declared that the portion of the prosthesis that suffered a fracture was softer than the minimum required hardness in two of a standards organization's three specifications covering the alloy for use in an implant and was less than the expected hardness of the third specification.

 

The defendants objected to the metallurgist’s declaration. The Superior Court of Los Angeles County found that the metallurgist’s declaration was inadmissible as expert opinion because it lacked a reasoned analysis and an adequate foundation for his opinions. The trial court concluded that the plaintiff had failed to create a triable issue of material fact and granted summary judgment for the defendants.

 

The California Court of Appeal for the Second District affirmed in part and reversed in part. The court affirmed in that it held that design defect strict products liability was inapplicable to prosthetic bone, since it was an implanted medical device available only through the services of a physician. The court concluded that such a claim could not provide a basis for the defendants' liability.

 

However, the court found that the trial court erred in excluding portions of the plaintiff’s expert metallurgist’s testimony in response to the defendant’s motion for summary judgment. The court held that 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 court reasoned that, in light of the rule of liberal construction for evidence submitted in opposition to a summary judgment motion, 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. The court found that a metallurgist with more than 30 years of experience in materials analysis, failure analysis and material trade-off evaluation was qualified to testify as expert about the nature and hardness of the materials used in a bone prosthesis.

 

Moreover, the court held that the metallurgist's expert opinion that the portion of the prosthesis that suffered a fracture softer than the minimum required hardness in two of a standards organization's three specifications covering the alloy for use in an implant and was less than the expected hardness of the third specification was not subject to exclusion as based on reasons unsupported by the material on which the expert relies, where the metallurgist declared that he conducted extensive examinations of the prosthesis using visual examination, optical microscopic examination, x-ray radiography, fluorescent dye penetrant examination, scanning electron microscopy, and such destructive testing as hardness testing, micro hardness testing, microstructural analysis, and chemical analysis. The court found it was readily inferable that the prosthesis should have complied with the specifications and that the purported defect was a cause of the prosthesis's failure.

 

The appellate court held that the metallurgist’s testimony created a genuine issue of material fact as to whether the bone prosthesis failed to conform to its intended design in failing to meet a standards organization's specifications for hardness. This precluded summary judgment for the manufacturer on the patient's causes of action for negligence and strict products liability based on manufacturing defect.

 

The appellate court held that the metallurgist’s testimony created a genuine issue of material fact as to whether the bone prosthesis's failure to meet a standards organization's specifications for hardness was a substantial factor in bringing about the failure of the prosthesis resulting in patient's injury, thus precluding summary judgment for the manufacturer on the patient's causes of action for negligence and strict products liability based on manufacturing defect.

 

See: Garrett v. Howmedica Osteonics Corporation, 2013 WL 820395(Cal.App. 2 Dist., March 6, 2013) (not designated for publication).

 

 

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