McCombs v. Synthes

Court of Appeals of Georgia

McCombs v. Synthes

596 S.E.2d 780, 266 Ga. App. 304

CourtCourt of Appeals of Georgia

DecidedMarch 17, 2004

DocketA01A0006

StatusPublished

Cited by3 cases

This text of 596 S.E.2d 780 (McCombs v. Synthes) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McCombs v. Synthes, 596 S.E.2d 780, 266 Ga. App. 304 (Ga. Ct. App. 2004).

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Opinion

ANDREWS, Presiding Judge.

In McCombs v. Synthes (U.S.A.), 277 Ga. 252 (587 SE2d 594) (2003), the Supreme Court reversed Division 1 of McCombs v. Synthes (U.S.A.), 250 Ga. App. 543, 545 (553 SE2d 17) (2001), in which we found that McCombs had not argued that the learned intermediary rule did not apply or should be expanded below and, therefore, the trial court’s ruling granting summary judgment on that ground was correct.

Division 1 of our opinion is hereby vacated and the opinion of the Supreme Court made the opinion of this Court. As directed therein, we consider McCombs’s argument made here that there remained a jury question as to the adequacy of the warning given to her surgeon by Synthes (U.S.A.), although, as acknowledged in McCombs v. Synthes (U.S.A.), 277 Ga. at 254, “[i]n response to the summary judgment motion, McCombs did not contend that the warning to her doctor inadequately conveyed the dangers associated with the use of the plate.”

The warning included in the package insert with the Synthes plate is set out in McCombs v. Synthes (U.S.A.), 250 Ga. App. at 544, including the phrase “[tjhese devices can break when subjected to the increased loading associated with delayed union or nonunion.” This is what occurred in McCombs’s situation.

We conclude, as did the trial court, that under the learned intermediary doctrine, this warning to Dr. Achecar was adequate and reasonable under the circumstances of her case. McCombs v. Synthes (U.S.A.), 277 Ga. at 253 (1); see also Presto v. Sandoz Pharmaceuticals Corp., 226 Ga. App. 547, 548 (1) (487 SE2d 70) (1997); Wheat v. Sofamor, 46 FSupp.2d 1351, 1362-1363 (4) (N.D. Ga. 1999).

Judgment affirmed.

Smith, C. J., Johnson, P. J., Ruffin, P. J., Eldridge, Miller and Ellington, JJ., concur. [305]*305Decided March 17, 2004. Webb, Lindsey, Collins, Jones & Wade, James H. Webb, Jr., Hall, Booth, Smith & Slover, Martin C. Jones, Sharon J. Whitwell, for appellant. Kilpatrick Stockton, Susan A. Cahoon, Jeffrey J. Toney, Alston & Bird, Jenifer N. Stephens, for appellees.

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ANDREWS, Presiding Judge.

In McCombs v. Synthes (U.S.A.), 277 Ga. 252 (587 SE2d 594) (2003), the Supreme Court reversed Division 1 of McCombs v. Synthes (U.S.A.), 250 Ga. App. 543, 545 (553 SE2d 17) (2001), in which we found that McCombs had not argued that the learned intermediary rule did not apply or should be expanded below and, therefore, the trial court’s ruling granting summary judgment on that ground was correct.

Division 1 of our opinion is hereby vacated and the opinion of the Supreme Court made the opinion of this Court. As directed therein, we consider McCombs’s argument made here that there remained a jury question as to the adequacy of the warning given to her surgeon by Synthes (U.S.A.), although, as acknowledged in McCombs v. Synthes (U.S.A.), 277 Ga. at 254, “[i]n response to the summary judgment motion, McCombs did not contend that the warning to her doctor inadequately conveyed the dangers associated with the use of the plate.”

The warning included in the package insert with the Synthes plate is set out in McCombs v. Synthes (U.S.A.), 250 Ga. App. at 544, including the phrase “[tjhese devices can break when subjected to the increased loading associated with delayed union or nonunion.” This is what occurred in McCombs’s situation.

We conclude, as did the trial court, that under the learned intermediary doctrine, this warning to Dr. Achecar was adequate and reasonable under the circumstances of her case. McCombs v. Synthes (U.S.A.), 277 Ga. at 253 (1); see also Presto v. Sandoz Pharmaceuticals Corp., 226 Ga. App. 547, 548 (1) (487 SE2d 70) (1997); Wheat v. Sofamor, 46 FSupp.2d 1351, 1362-1363 (4) (N.D. Ga. 1999).

Judgment affirmed.

Smith, C. J., Johnson, P. J., Ruffin, P. J., Eldridge, Miller and Ellington, JJ., concur. [305]*305Decided March 17, 2004. Webb, Lindsey, Collins, Jones & Wade, James H. Webb, Jr., Hall, Booth, Smith & Slover, Martin C. Jones, Sharon J. Whitwell, for appellant. Kilpatrick Stockton, Susan A. Cahoon, Jeffrey J. Toney, Alston & Bird, Jenifer N. Stephens, for appellees.

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596 S.E.2d 780, 266 Ga. App. 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccombs-v-synthes-gactapp-2004.

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