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Tanuz v. Carlberg5/30/1996
APODACA, Chief Judge.
{1} Plaintiff appeals the trial court's dismissal of her action entered pursuant to SCRA 1986, 1-041(B) (Repl. 1992). The dismissal was filed in a bench trial at the close of Plaintiff's case-in-chief. In her complaint against Defendant, an oral and maxillofacial surgeon, Plaintiff sought damages based on her claims of dental malpractice and strict liability. Plaintiff alleged injuries arising out of surgical insertion by Defendant of interpositional implants (implants) in Plaintiff's temporomandibular joints (TMJs). On appeal, Plaintiff contends that Defendant should be held strictly liable as a supplier of the defective implants. Alternatively, Plaintiff contends that Defendant was negligent for failing to contact her after her surgery as the defective nature of the manufactured implants became known. As a matter of public policy, we hold that Defendant cannot be held strictly liable for implanting a product later shown to be defective. We also hold that substantial evidence supported the trial court's determination that Defendant did not breach his duty to warn Plaintiff under Plaintiff's negligence theory. We therefore affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
{2} Defendant practiced surgery in Santa Fe. He first saw Plaintiff as a patient in March 1983 after a referral by Dr. Keith Jameson, a dentist. Plaintiff complained of TMJ pain and was diagnosed as suffering from bilateral derangement of the TMJ. In September 1983, Defendant surgically implanted TMJ implants manufactured by Vitek, Inc. The implants were manufactured using Proplast, a teflon-based substance patented by Vitek. At the time, the Vitek implants were being touted as having a greater success rate than other treatments. Defendant advised Plaintiff to return for routine follow-up care and to return if she experienced pain or discomfort.
{3} On April 27, 1984, Plaintiff returned to Defendant's office, complaining of pain in her TMJs. Defendant's notes from that visit indicate that Plaintiff had failed to make her appointments after the previous visit. He referred her to Dr. Jameson to have her splint replaced. Plaintiff did not see Dr. Jameson after the referral and failed to continue follow-up treatment with Defendant, contrary to his advice. In 1987, Plaintiff began experiencing TMJ pain and self-treated this pain with over-the-counter medication. In November 1989, Plaintiff visited an Albuquerque dentist and was referred to Dr. Steven J. Traub, an oral and maxillofacial surgeon practicing in Albuquerque. Plaintiff informed Dr. Traub that she had seen Defendant for TMJ surgery but failed to tell him that she had implants. Dr. Traub did not notice the implants on the x-ray he had ordered. He diagnosed her as suffering from degenerative joint disease and prescribed pain and anti-inflammatory medication.
{4} In September 1991, Plaintiff was again referred to Dr. Traub when she complained of a grinding sound and a popping episode that had occurred recently. Dr. Traub once again failed to identify Plaintiff's implants on another x-ray, but he did observe that a comparison with the 1989 x-ray showed there had not been advancement of her degenerative disease. He again prescribed pain and anti-inflammatory medication. On both of these visits, Plaintiff was instructed to return for follow-up care but failed to do so. In October 1993, Plaintiff contacted Defendant's office after watching a television show that discussed problems with Vitek implants. Defendant surgically removed Plaintiff's implants in February 1994.
{5} Plaintiff filed her complaint against Defendant in June 1994. In addition to her strict liability claim, Plaintiff alleged that Defendan
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