Grabowski v. Smith & Nephew, Inc.
149 So. 3d 899
| La. Ct. App. | 2014Background
- This is a damages suit arising from a July 18, 2007 knee replacement where a two-part Genesis II knee implant had a wrong-sized poly insert.
- Daniel Forrest, a Smith & Nephew sales rep, attended the surgery to provide different implant sizes.
- A later October 24, 2007 surgery revealed a size 3/4 poly insert had been used with a size 5 tray, allegedly damaging the patella tendon.
- The Grabowskis sued Smith & Nephew, Forrest, and PUREPLAY; after discovery, defendants moved for summary judgment and the trial court granted it in favor of Smith & Nephew and PUREPLAY.
- The Grabowskis sought a writ and appellate review; the trial court’s denial of substitution of counsel/recusal was upheld, but summary judgment in favor of Forrest was reversed and the others were partially reversed and remanded.
- The matter is remanded for further proceedings on issues of duty, apparent authority, and independent contractor status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty of Forrest to the patient | Forrest owed a duty as the in-OR supplier of the device. | Forrest, not a physician, did not owe a duty to insure proper implant sizing. | Genuine issues of fact exist; summary judgment on Forrest’s duty should be reversed. |
| Stipulation pour autrui via contracts | Contracts create a third-party beneficiary duty to the Grabowskis. | Indemnity provisions do not confer third-party beneficiary status. | No stipulation pour autrui; contracts do not benefit Grabowskis. |
| Apparent authority of Forrest for Smith & Nephew/PUREPLAY | Forrest acted with apparent authority; defendants are liable. | Forrest acted independently and with no authority to bind Smith & Nephew or PUREPLAY. | Summary judgment reversed on apparent authority grounds; genuine issues of fact remain. |
| Independent contractor status of PUREPLAY/Forrest and liability under 2320 | PUREPLAY could be vicariously liable as employer of Forrest. | Forrest was an independent contractor; PUREPLAY not liable. | Issues of fact regarding employment status preclude summary judgment; rulings reversed. |
Key Cases Cited
- Disaster Restoration Dry Cleaning, L.L.C. v. Pellerin Laundry Machinery Sales Co., Inc., 927 So.2d 1094 (La. 2006) (recusal right must be balanced with proceeding timelines; prematurity of recusal before co-counsel considerations)
- Milbert v. Answering Bureau, Inc., 120 So.3d 678 (La. 2013) (HCIR duties may be implicated; foreseeability in healthcare contexts)
- Meany v. Meany, 639 So.2d 229 (La. 1994) (duty analysis considers policy factors under Meany framework)
- Bonds v. SAPA Extrusions, LLC, 135 So.3d 799 (La.App. 2 Cir. 2014) (duty determination using policy considerations; Meany factors apply)
- Independent Fire Insurance Co. v. Able Moving and Storage Co., Inc., 650 So.2d 750 (La. 1995) (applies apparent authority and agency concepts to third parties)
- Tedesco v. Gentry Development, Inc., 540 So.2d 960 (La. 1989) (articulates apparent authority doctrine in agency)
- Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (La. 1972) (independent contractor analysis; control test governs employer status)
- McGrew v. Quality Carriers, Inc., 74 So.3d 1253 (La. App. 3 Cir. 2011) (independent contractor factors in employee determination)
- Webb v. Roofing Analytics, LLC, 121 So.3d 756 (La. App. 2 Cir. 2013) (employee vs. independent contractor considerations in commissions")
- Duck v. Hunt Oil Co., 134 So.3d 114 (La. App. 3 Cir. 2014) (contract language and third-party beneficiary analysis in damages context)