Manufacturing Defect Summary Judgment In Favor Of Medical Device Manufacturer Reversed.

Plaintiff had a prosthesis implanted in his femur, and reported pain in his thigh 18 months later. A fatigue fracture was discovered. Defendant manufacturers filed a motion for summary judgment, which included a declaration from an engineer stating the prosthesis was not defective in design or manufacture. Plaintiff’s opposition included the declaration of a metallurgist who said the portion of the device which suffered the fracture was too soft, and that the prosthesis was defective in manufacture and/or design which caused it to fail. After sustaining defense objections to plaintiff’s expert declaration because it “lacked a reasoned analysis and an adequate foundation,” the trial court granted the motion for summary judgment. The appellate court concluded defendants “cannot be strictly liable for a design defect under either the risk-benefit or consumer expectations test.” Nonetheless, the appellate court reversed after concluding plaintiff’s expert declaration created triable issues of fact as to the existence of a manufacturing defect and negligence. The trial court was directed to vacate its order granting summary judgment and enter a new order granting summary adjudication of the counts for failure to warn strict products liability, design defect strict products liability and breach of express warranty.  Garrett v. Howmedica Osteonics Corporation   (Cal. App. Second Dist., Div. 3;  March 6, 2013) (Case No. B234368A).