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Talton v. Arnall Golden Gregory9/29/2005
w negligence. Talton alleged that AGG acted negligently when it recommended and prepared an inadequate warning label and that, when it did so, AGG knew that third parties, including hospitals, physicians, and patients, would rely on the warning label.
AGG answered and filed a motion to dismiss Count 3 of the complaint pursuant to OCGA § 9-11-12 (b) (6). In its answer and at the motion hearing, AGG contended that it had no duty as a matter of law to warn nonclients, such as patients receiving the cadaver tissue during surgery, of risks associated with the tissue. It also noted that, when a medical device can only be prescribed or inserted by a physician, the physician is solely responsible for informing the patient of the risks of using the device. It is undisputed that Cryolife never distributed the cadaver tissue directly to patients and that hospitals or physicians removed the tissue from the packaging prior to or during surgery, and AGG contended that patients never had the opportunity to review or rely upon the warning label. In addition, AGG argued that it provided legal advice regarding the warning label to its client, Cryolife, and that such advice was confidential and intended only for Cryolife's consideration and use. According to AGG, because patients never actually saw the warning label, Talton could not show that AGG was actually aware that patients such as Talton would rely on AGG's confidential legal advice to Cryolife regarding the label. Further, AGG argued that it had no control as to whether Cryolife followed its advice, noting that Cryolife made the final decision on whether to accept AGG's legal advice and what information, if any, to include in the warning label. AGG asserted that Cryolife was therefore solely responsible for the adequacy of the warning labels. In response, Talton contended that, by advising Cryolife on the language for the warning labels, AGG had undertaken a duty to warn third parties of the risks and, therefore, was responsible for the harm resulting from the inadequate warning. The trial court granted AGG's motion to dismiss, and Talton appeals.
1. Talton contends the trial court erred in finding as a matter of law that AGG owed no duty to adequately warn him of the material risks of using the cadaver tissue. In order to maintain a cause of action for negligence, a plaintiff must be able to prove that the defendant owed a legally cognizable duty to the plaintiff to conform to a certain standard of conduct, the defendant breached this duty, and the breach damaged the plaintiff. Martha H. West Trust v. Market Value of Atlanta, 262 Ga. App. 90, 91 (1) (584 SE2d 688) (2003). In this case, it is undisputed that Talton was never a client of AGG and that there was no privity between the parties that might have created a duty owed by AGG to Talton. Therefore, Talton must show that AGG's owed him a duty under some other legal theory. Id.
(a) Talton argues that AGG's duty to him arose under the Restatement of Torts 2nd, § 552 (1977). The Supreme Court of Georgia adopted Section 552 of the Restatement in Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681-682 (300 SE2d 503) (1983), a case in which the Court considered whether an engineer could be liable to a limited class of third parties when it was foreseeable that the third parties would rely on the engineer's report. The Court adopted the following rule:
one who supplies information during the course of his business, profession, employment, or in any transaction in which he has a pecuniary interest has a duty of reasonable care and competence to parties who rely upon the information in circumstances in which the maker was manifestly aware of the use to which the infor
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