(Los Angeles County Super. Ct. No. SC104332) APPEAL from a judgment of the Superior Court of Los Angeles County, Cesar S. Sarmiento, Judge.
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
Reversed with directions.
Todd Garrett appeals a summary judgment in favor of Howmedica Osteonics Corporation (Howmedica) and Stryker Corporation (Stryker) in a products liability action involving an implanted prosthetic device.*fn1 He contends the defendants failed to satisfy their burden to show that the prosthesis was not defective, the exclusion of portions of his expert's declaration was error and his expert's declaration creates triable issues of fact precluding summary judgment.
We hold 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 further 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.
FACTUAL AND PROCEDURAL BACKGROUND
Garrett was treated for cancer in his left femur (thigh bone). Jeffrey Eckardt, an orthopedic surgeon, ordered a prosthetic device to replace the middle portion of the femur. Howmedica and Stryker allegedly participated in some manner in the design or manufacture of the prosthesis. Eckardt implanted the prosthesis in August 2007, attaching it to the two remaining ends of the femur using an adhesive and cross-pins.
Garrett reported pain in his thigh beginning in February 2009. Eckardt investigated and detected a fatigue fracture in the prosthesis. Eckardt replaced the fractured prosthesis with a different type of prosthesis in March 2009. The new prosthesis included an artificial joint, and the second surgery required a considerably longer recovery time than the first.
2. Trial Court Proceedings
Garrett filed a complaint in August 2009 and filed a third amended complaint against Howmedica, Stryker and others in September 2010. He alleges counts against Howmedica and Stryker 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.*fn2
Howmedica and Stryker filed a motion for summary judgment or summary adjudication in March 2011. They argued that Garrett's discovery responses showed that he had no evidence to establish the essential elements of his claims. They also argued that the evidence presented in support of their motion showed that the prosthesis was not defective and that they had no duty to warn as a matter of law. They filed a declaration by Albert H. Burstein, a mechanical engineer, stating his opinion that the prosthesis was not defective in design or manufacture, that the fracture was caused by a cyclical rotational force resulting from normal human activity and that the force simply exceeded the load that the product could bear over time. They also presented Garrett's discovery responses and other evidence in support of the motion.
Garrett opposed the motion, except that he did not oppose the attack on his count for strict products liability based on failure to warn. Garrett filed a declaration by Lawrence Kashar, a metallurgist, stating that he had determined through destructive testing and other examinations that the portion of the prosthesis that suffered a fracture "was softer tha[n] the minimum required hardness in two of the three ASTM specifications that cover Cobalt-28% Chromium-6% Molybdenum alloy for use as an implant material, and was less than the expected hardness of the third specification." Kashar stated that (1) hardness was a direct indication of the strength of the material; (2) a portion of the prosthesis was not made from the cobalt-chromium-molybdenum alloy, but instead was made from a titanium alloy; and (3) he had detected "a layer of polymeric-like material" in holes surrounding the cross-pins and noted that the defendants' deponent had "stated that no polymeric material should be involved with this implant." Kashar characterized these as "anomalies" and stated his opinion that, based on these purported anomalies, the prosthesis was defective in manufacture and/or design and that there were "strong arguments" that the purported defect had caused the prosthesis to fail.
Howmedica and Stryker filed evidentiary objections to most of the substantive portions of the Kashar declaration on various grounds, including lack of expert qualification, lack of an explanation or reasoning to support an expert opinion, "lacks foundation" (capitalization omitted) and relevance.
The trial court concluded that Garrett's discovery responses showed that he had no evidence that the prosthesis was defective or that the defendants had breached an express warranty or were negligent. The court stated that Garrett was relying on the mere fact that the product had failed, which was insufficient evidence to establish a basis for liability, and that after litigating this case for almost two years, he could not reasonably expect to obtain evidence of a product defect, breach of warranty, negligence or causation. The court stated further that the Burstein declaration filed by the defendants also supported the conclusion that Garrett could not establish either the existence of a product defect or causation.
The trial court also found that the Kashar declaration failed to satisfy the requirements for admissibility of expert opinion because it lacked a reasoned analysis and an adequate foundation for his opinions.*fn3 The court sustained objections to all of the challenged portions of the Kashar declaration, with only one exception. The court concluded that Garrett had failed to create a triable issue of material fact and that the defendants were entitled to summary judgment as a matter of law. The court entered a judgment in favor of Howmedica and Stryker in June 2011. Garrett filed a timely appeal.
Garrett contends (1) the evidence that the prosthesis failed less than two years after the surgery creates a triable issue of fact as to the existence of a design defect and causation, and the defendants failed to satisfy their burden of presenting evidence that the prosthesis was not defective under the risk-benefit test; (2) a triable issue of fact exists as to the existence of a design defect under the consumer expectations test; (3) Kashar adequately stated the basis for his opinion, and the exclusion of portions of his declaration was error; and ...