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Polston v. McGhan Medical Corp.5/22/2000
Denise Polston appeals a summary judgment in favor of McGhan Medical Corporation, Minnesota Mining and Manufacturing Company, and INAMED Corporation (collectively "McGhan") in this suit for personal injuries allegedly caused by silicone breast implants. In four issues, Polston contends the trial court erred in (1) denying Polston's motion for continuance, (2) granting summary judgment on the statute of limitations, (3) excluding the affidavit of Dr. David Goldsmith, Polston's expert witness, and (4) excluding all expert evidence on systemic disease causation. In a fifth issue, Polston contends the trial court's orders are void because she objected to the visiting judge. We affirm the trial court's judgment.
Factual and Procedural Background
On June 9, 1982, Polston underwent a breast implantation procedure. According to Polston, McGhan manufactured her silicone breast implants. Approximately one year after she received the implants, she developed numbness and hardening of her breasts. Between 1983 and 1986 she returned to her surgeon three times for a closed capsulotomy procedure, which involved painful manipulation of the breasts to release scar tissue. In 1993, Polston developed breast pain and, on the advice of another surgeon, she underwent an explantation procedure in which her breast implants were removed. According to Polston, the explantation procedure caused visible, raised scars on each breast. She also claims the silicone implants left her deformed and exposed to silicone which leaked out of the implants, infiltrated her breast tissue, and caused her to develop a silicone related disease.
In 1993, Polston and others sued McGhan for negligence, gross negligence, fraud, breach of express warranty, strict liability, violations of the Texas Deceptive Trade Practices Act (DTPA), misrepresentations, and intentional infliction of emotional distress. The trial court severed Polston's case. McGhan then filed a motion entitled "Motion to Exclude Causation Evidence and Motion for Summary Judgment." According to Polston, she was timely served with these motions but was not served with notice of the March 2, 1998 hearing date until February 25, 1998. On February 25, 1998, the same day Polston purportedly received notice, she filed a response to the motion for summary judgment and motion to exclude causation evidence as well as a motion to file these responses late. She also requested that the motions be transferred to another court. The trial court granted the motion to file these responses late. On March 3, 1998, senior district judge Leonard Hoffman announced that he had granted McGhan's motion for summary judgment and motion to exclude causation evidence without a hearing. Neither party had notice that the case had been assigned to a visiting judge. Judge Hoffman entered written orders on March 6, 1998. Polston received a copy of these orders on March 9, 1998. On March 10, 1998, Polston sent a letter to the court clerk objecting to the visiting judge.
Discussion
A. Objection to Visiting Judge
In Polston's first issue, she contends the trial court's orders are void and unenforceable because she objected to the assignment of a visiting judge.
A presiding judge can assign the judges of the administrative region to hold terms of court, try cases, and dispose of accumulated business for other courts. See Tex. Gov't Code Ann. ยง 74.056 (Vernon 1998). When a judge is assigned, "the presiding judge shall, if it is reasonable and practicable and if time permits, give notice of the assignment to each attorney representing a party to the case that is to be heard in whole or in part by the assigned judge." Tex. Gov't Code Ann.
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