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Guzman v. Synthes12/1/1999
Opinion by:Sarah B. Duncan, Justice
AFFIRMED
Javier and Julia Guzman appeal the trial court's take-nothing judgment against them in their product liability suit against Synthes. The Guzmans argue the trial court erred in granting Synthes' motion for judgment nothwithstanding the verdict because there is some evidence to support each challenged element of their causes of action. We disagree and affirm the trial court's judgment.
Factual and Procedural Background
After Javier Guzman fell and suffered a compound and comminuted fracture to his left distal femur, he was rushed to a hospital, where Dr. Robert Bell, an orthopedic surgeon, aligned the pieces of the bone and affixed a Dynamic Condylar Screw (DCS) fracture fixation plate. The DCS plate used to repair Guzman's leg was one of a shipment of plates distributed to the hospital by Synthes. This shipment included a package insert addressed to "the personal attention of the operating surgeon." This insert stated:
No partial weight-bearing or nonweight-bearing device can be expected to withstand the unsupported stresses of full weight-bearing. Until firm bone union is achieved, the patient should employ adequate external support and restrict physical activities which would place stresses upon the implant or allow movement at the fracture site and delay healing.
However, this insert was neither received nor read by Dr. Bell before he placed the DCS in Guzman's leg.
Six months after his fall, Guzman's leg had almost healed completely. But Dr. Bell was still uncertain about one area that did not appear to be healing. Rather than perform more surgery, however, Dr. Bell released Guzman to regular work. Three days later, Guzman returned, complaining of increased pain and swelling. Although X-rays revealed no change, Dr. Bell nonetheless advised Guzman to stay off of work.
Eight months after Guzman's fall, Dr. Bell again x-rayed his leg and discovered the DCS plate had broken. Accordingly, three days later, Dr. Bell removed the broken plate, inserted a rod through the center of the femur, and bone grafted the remaining portion of the bone that had not yet healed. After the rod was inserted, Guzman experienced some pain but his leg healed relatively quickly. After the rod was removed, one year after his initial fall, Guzman was able to walk and work. However, he claims his leg is weaker and he cannot perform the same heavy duty work he did before his leg was broken.
Examination of the DCS plate revealed it had broken because of metal fatigue. The break, which began at a screw hole, occurred near the unhealed portion of the bone. Claiming the DCS plate was defectively designed and marketed, Guzman sued its distributor, Synthes (USA), alleging strict liability, negligence, res ipsa loquitor, breach of warranty, misrepresentation, and deceptive trade practices. The jury found Synthes liable under theories of defective marketing, defective design, negligent failure to warn, and deceptive trade practices and awarded the Guzmans $1,358,000 in actual damages and prejudgment interest and $7,500,000 in exemplary damages. Initially, the trial court disregarded the jury's exemplary damages finding but rendered judgment for actual damages. Later, the court granted Synthes' motion for judgment notwithstanding the verdict and rendered judgment against the Guzmans. They now appeal.
Scope and Standard of Review
This court reviews a judgment notwithstanding the verdict under a legal sufficiency or "no evidence" standard of review. Kahlig v. Boyd, 980 S.W.2d 685, 688 (Tex. App.-San Antonio 1998, pet. denied). That is, reviewing only the evid
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