Gall v. Smith & Nephew, Inc.

Filed 10/29/21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

WAYNE GALL, B296394

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC504268) v.

SMITH & NEPHEW, INC.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Randolph Rogers, Judge. Affirmed.

Brice E. Bryan & Associates, Brice E. Bryan and Christopher J. Brantingham for Plaintiff and Appellant.

Shaw Koepke & Satter, John W. Shaw, Jens B. Koepke; Irwin Fritchie Urquhart & Moore and David W. O’Quinn for Defendant and Respondent.

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When a hip joint deteriorates, a hip resurfacing implant is one possible treatment. Smith & Nephew, Inc. (or simply “Smith”) manufactures hip resurfacing implants. Smith’s product in this case had two parts: a metal ball that covers the top of the femur, and a cup that fits inside the hip socket. When a surgeon puts these ball-and-cup surfaces in the joint, the polished metal surfaces are supposed to allow smoother movement than the damaged bone or cartilage they replace. The patient and plaintiff in this case is Wayne Gall, who had this kind of hip resurfacing surgery for his left hip. Gall recovered and became physically active. But years later, convinced his implant was unsatisfactory, Gall sued Smith. Gall’s first theory was “failure to warn”: Smith failed properly to warn Gall’s surgeon, Dr. Jaime Hernandez, about the risks of using Smith’s product. The trial court granted summary judgment for Smith because Hernandez independently knew these risks. Hernandez stayed current by reading scientific publications. Whether Smith gave Hernandez redundant warnings did not matter, the court ruled, when Hernandez already had the necessary information. Gall’s second theory was that Smith’s product was defective. The trial court granted summary judgment because Gall did not show anything was wrong with his implant. Gall did show Smith’s quality control procedures once failed to satisfy regulatory authorities, but the trial court concluded this fact did not imply the parts Gall received were defective. The trial court also allowed a declarant to revise his declaration, which Gall protests. The trial court’s rulings were proper. We affirm.