Williams v. American Medical Systems

• Decision Date: 07 March 2001
• Docket Number: No. A00A1984.,A00A1984.
• Citation: 548 S.E.2d 371,248 Ga. App. 682
• Parties: WILLIAMS et al. v. AMERICAN MEDICAL SYSTEMS et al.
• Court: Georgia Court of Appeals

548 S.E.2d 371

248 Ga. App. 682

WILLIAMS et al. v. AMERICAN MEDICAL SYSTEMS et al.

No. A00A1984.

Court of Appeals of Georgia.

March 7, 2001.

Reconsideration Denied March 21, 2001.

Certiorari Denied September 10, 2001.

Jerry B. Hatcher, Atlanta, for appellants.

Jennings, Sparwath, & Satcher, Milton B. Satcher, Love & Willingham, John A. Gilleland, Atlanta, for appellees. ANDREWS, Presiding Judge.

Bennie Williams appeals from the trial court's grant of summary judgment to American Medical Systems (AMS), the manufacturer of a penile implant which had to be surgically removed from him after an infection developed. Williams sued for negligent manufacture and inspection, strict liability, and failure to warn.¹ The trial court granted summary judgment to AMS on all claims. Because we conclude there is an issue of fact on the strict liability claim, we affirm in part and reverse in part.

Viewed in the light most favorable to Williams as the nonmoving party, the facts were as follows. Dr. Harrison, a urologist, performed the operation implanting an AMS 700 Inflatable Penile Implant Prosthesis into Williams's abdomen and scrotum. Dr. Harrison inflated the implant in the operating room, and it was working normally. There is no evidence of any damage to the implant before or after surgery. About a month later, while Williams was still recovering from the surgery, an infection developed, and Dr. Harrison removed the implant.² Six months later, Williams underwent the same procedure, with Dr. Harrison implanting another AMS 700 Prosthesis, this time without complications.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e).

(Citation, punctuation and emphasis omitted.) Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

1. The trial court erred in granting summary judgment to AMS on Williams's strict liability claim. Georgia's strict liability statute, OCGA § 51-1-11(b)(1), provides:

The manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.

Under this statute, the plaintiff is not required to show negligence by the manufacturer, but must show that the "product, when sold, was not merchantable and reasonably suited to the use intended and its condition when sold is the proximate cause of the injury sustained." (Punctuation omitted.) Center Chemical Co. v. Parzini, 234 Ga. 868, 869(2), 218 S.E.2d 580 (1975). It is not necessary for the plaintiff to specify precisely the nature of the defect. He must show that the device did not operate as intended and this was the proximate cause of his injuries. Firestone Tire & c. Co. v. King, 145 Ga.App. 840, 842, 244 S.E.2d 905 (1978)

.

After removing the implant, Dr. Harrison wrote in his post-operative report: "Postoperative diagnosis: Disconnection of tubing between the reservoir and cylinder, causing the reservoir fluid to leak into the scrotal compartment, thereby causing infection." Although Dr. Harrison later stated in his deposition that an infection from the incision could have spread and caused swelling, thus forcing the tubing to disconnect, this does not negate his original post-operative diagnosis. Accordingly, there is some evidence that the device did not operate as intended and this caused the infection which required removal of the implant. Gen. Motors Corp. v. Blake, 237 Ga.App. 426, 430, 515 S.E.2d 166 (1999); King, supra; Parzini, supra.

2. The trial court correctly granted summary judgment to AMS on Williams's claims for negligent manufacture and negligent inspection. In support of its motion for summary judgment, AMS submitted the affidavit of the director of research for AMS stating that "[e]very inflatable penile prosthesis made at AMS is subjected to inspection, functional testing and sterilization before it is allowed to leave AMS."

Williams produced no evidence of negligent manufacture or inspection. He argues that res ipsa loquitur applies to this issue because there is no evidence that he did anything to cause the device to malfunction and there is no evidence that Dr. Harrison did not implant the device properly.

The elements of the res ipsa loquitur doctrine are: (1) injury of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive

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