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If you are in an accident, and you sue the other driver for negligence, can the other driver turn around and argue your employer—who is not a party to the lawsuit—was partially to blame for letting you drive its car? That was the unusual question presented to the Georgia Court of Appeals. In a decision issued on July 16, a seven-judge panel of the Court rejected what it dubbed a “creative argument” by a defendant trying to mitigate her own potential liability.

Zaldivar v. Prickett

In 2009, two vehicles collided at an intersection. Although both drivers suffered injuries, only one driver sued the other for negligence. The other did not file a counterclaim.

Both drivers maintain the other caused the accident. The plaintiff was driving a car owned by his employer. The defendant driver argued, as an affirmative defense, the employer was “wholly or partially at fault for negligently entrusting” one of its vehicles to the plaintiff, who had “received three anonymous calls from people complaining about how [the plaintiff] had been driving.” The plaintiff asked the trial court for summary judgment on this point, and the judge agreed. The defendant then appealed.

Under Georgia law, a court must apportion damages for negligence based on the relative fault of all responsible parties, even persons or entities who are not parties to the actual lawsuit. Here, the defendant argued the plaintiff’s employer was partially responsible for the injuries suffered by the plaintiff. The Court of Appeals was unwilling to accept this as a valid outcome under Georgia tort law.

Presiding Judge Anne Elizabeth Barnes, writing for the majority of the Court, said even if the plaintiff “were determined to be negligent and partially responsible for his own injuries, his own negligence would break the causal connection between any negligent act of his employer [] in entrusting a vehicle to him.” A court may only apportion liability to a non-party if it “contributes” to the plaintiff’s injuries. As Judge Barnes explained, while the employer’s alleged negligent entrustment may have contributed to the defendant’s injuries—and remember, she did not file a claim for damages—it cannot contribute to the plaintiff’s injuries.

One judge disagreed. Judge Elizabeth L. Branch filed a dissenting opinion. She argued it made no sense that the plaintiff could assign partial liability to his employer but the defendant could not. After all, Judge Branch said, both parties “injuries resulted from the same accident.” She said Georgia law was only concerned with assigning “fault” for the accident rather than liability for the plaintiff’s injuries. The issue is not whether the plaintiff could sue his own employer for giving him a vehicle; the issue is whether the employer’s negligence contributed to the accident.

The majority’s position is now the law, however, and Judge Barnes made it clear a defendant cannot seek to apportion any blame for an accident on the plaintiff’s employer. Keep in mind, the appeals court has not decided the merits of the plaintiff’s lawsuit, as the case now continues before a trial court.

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Under Georgia law, the owner of a premises is liable for any injuries arising from a failure to “exercise ordinary care” in keeping said premises safe. A recent decision from the Georgia Court of Appeals illustrates how this duty is applied in “slip-and-fall” cases where there is an alleged hazard the owner failed to warn invited persons about.

Henderson v. St. Paul Baptist Church

The plaintiffs in this case were two visiting pastors, a husband and wife, invited to speak at a church in Clinch County. The church did not have a designated parking lot, so the local pastor directed the plaintiffs to park behind his own car on the left side of the building. The plaintiffs parked their car as directed, behind their host’s car and near some some shrubbery. One of the plaintiffs, the wife, later exited the car and walked towards the church’s front entrance. She walked through the ground near the shrubbery, which was covered in pine straw. Assuming it was safe, she stepped over the pine straw, which was in fact covering a hole. She fell into the hole and broke her leg.

The plaintiffs sued the church for premises liability. The church’s pastor admitted he was aware of the hole, which had been dug when the shrubbery had been planted about a month before the plaintiff’s accident. The pastor also acknowledged this hole was not visible or marked in any way. He conceded there was no way the plaintiffs could have known the hole was there.

Nevertheless, the church moved for summary judgment, arguing the plaintiff was responsible for the accident. The trial court agreed. The court accepted evidence the plaintiff took a “shortcut” through the shrubbery to get to the church’s entrance rather than using the designated path.

The Court of Appeals reversed the trial court on the summary judgment question. The appeals court said there were still disputed questions of fact to be resolved at trial. Specifically, the plaintiff presented evidence “that at the time of her fall the entire area between her car and the bushes was covered with pine straw, leaving her with no choice of whether to walk on the pine straw to get to the church entrance from the parking spot.” The appeals court also pointed to the plaintiff’s testimony that it was the defendant’s pastor who invited them to park next to the shrubs, contradicting the notion the plaintiff negligently chose to deviate from the designated path.

As is always the case with summary judgment, the Court of Appeals did not rule for the plaintiff on the merits. The court is required to reconsider the trial court’s decision on summary judgment in the light most favorable to the plaintiff. Here, the Court of Appeals simply found a factual dispute remained, which requires a trial before a jury. The jury could still ultimately find it was the plaintiff’s negligence, rather than the defendant’s failure to warn, that was responsible for her injuries.

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On July 10, the Georgia Court of Appeals ruled a lawsuit against the state’s Department of Transportation (DOT) could go forward. The lawsuit arose from a deadly accident at a recently redesigned road in Atlanta. The DOT argued it could not be held liable under the doctrine of “sovereign immunity,” but the appeals court said some of the plaintiff’s claims could still proceed.

Department of Transportation v. Kovalcik

In 2006, the DOT and the City of Atlanta agreed to renovate a section of Peachtree Road. The City hired a company to develop construction plans for the road, while the DOT awarded construction contracts. Construction took place in 2006 and 2007. The DOT conducted a final inspection of the road in January 2008.

Two months after that inspection, a car traveling southbound on the newly rebuilt Peachtree Road made what the driver thought was a turn into an intersection. Instead, the driver actually turned into a shorter lane marked by a concrete divider. The car struck the divider, killing the driver’s passenger.

The passenger’s parents and estate sued the DOT and the City of Atlanta, among other parties, for wrongful death. The plaintiffs alleged the DOT failed to ensure the safety of Peachtree Road and was negligent in the roadway’s redesign. The DOT argued these claims were barred by sovereign immunity. The trial judge rejected this argument and the DOT appealed.

A three-judge panel of the Court of Appeals agreed with the trial judge that the “negligent design” complaint could proceed to trial. Presiding Judge Sara L. Doyle, writing for the panel, said the Georgia legislature waived sovereign immunity with respect to claims arising from “property owned by the state,” which includes Peachtree Road. The DOT attempted to argue the plaintiffs’ negligent design theory arose from the defective construction plans—which were “owned” by the City and its contractor, not the state—but as Judge Doyle explained, that is not a “meaningful distinction.” Ultimately, the DOT was responsible for “both approving construction plans and inspecting the physical property for compliance with DOT standards as built in accordance with those plans.”

The appeals court agreed with the DOT, however, that the plaintiffs could not pursue a claim against the DOT for “negligent approval of defective construction plans.” This is because sovereign immunity bars any claim against the state arising from the exercise of “licensing” powers, which includes granting permits or approving plans. But the plaintiffs may still argue “negligent inspection” despite the DOT’s protest it should not be liable for the work of the independent contractors who built the road. Judge Doyle said “the mere presence of contractors performing services on behalf of the DOT does not relieve DOT from potential liability for its own actions.”

The Court of Appeals did not rule on the merits of any of the plaintiff’s claims. The appeal was confined to the jurisdictional question of whether sovereign immunity barred any or all of the plaintiff’s claims. The case now returns to a trial court for further proceedings.

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Under Georgia law, an emergency room doctor (or other emergency health care provider) is not liable for malpractice unless there is “clear and convincing evidence” of “gross negligence.” This rule only applies when a patient is treated in “an emergency department” or taken to surgery from an emergency department. But what constitutes the “emergency department” of a hospital? The Georgia Court of Appeals recently clarified this issue.

Nisbet v. Davis

The Court of Appeals reviewed a trial judge’s denial of summary judgment to a physician at Gwinnett Medical Center in Lawrenceville. The plaintiff is the surviving spouse of a woman who died while under the physician’s care. The deceased had undergone surgery at another hospital in 2009 where the surgeon accidentally perforated her bowel twice. The next day, the woman complained of breathing problems, and she went to the Gwinnett Medical Center’s emergency department for treatment.

The defendant physician was not an attending physician in the emergency department, but rather a pulmonary specialist who served as a “consultant” to the department. The specialist examined the woman but did not request a surgical consult, which likely would have discovered the perforated bowel from the previous day’s surgery. Instead, the specialist ordered the woman be moved to intensive care. The doctor did not follow up on this order, however, and the woman remained in the emergency room for several hours. Although emergency room staff maintained contact with the physician, she did not return to the hospital until the next morning. At that point—approximately 10 hours after her initial examination—the doctor finally requested a surgical consult.

The surgeon quickly discovered the perforated bowel, but by then it was too late. Despite emergency surgery, the woman died. The surviving spouse filed a wrongful death lawsuit against the physician, alleging her failure to immediately order a surgical consult led to his wife’s death.

Before the trial court, the doctor moved for summary judgment, citing immunity under Georgia’s emergency care law. The judge denied the motion, holding it did not apply in this situation. The judge said the physician worked for the critical care (ICU) department rather than the emergency department. Furthermore, there were disputed issues of fact as to whether the physician’s conduct constituted “ordinary negligence” under Georgia law. Summary judgment was therefore inappropriate.

The defendant appealed the denial of summary judgment. The Court of Appeals affirmed the trial court’s decision to deny summary judgment, but not its reasons. Critically, the appeals court said the emergency room law applies in this case because, regardless of what department the defendant worked for, the deceased received treatment in the emergency room. The appeals court said that in writing the law, the Georgia legislature clearly intended for it to apply to all treatment received within the physical confines of a hospital’s emergency room or department.

That said, the appeals court agreed with the trial judge there were still material issues of fact that needed to be resolved by a jury. But, since the emergency room law applies, there will now be a higher burden on the plaintiff to prove the defendant’s conduct amounted to “gross” rather than “ordinary” negligence.

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Georgia law declares “communications between [a] psychiatrist and patient” privileged and therefore excluded as evidence in a civil proceeding. But what happens when the patient is deceased and his heirs have reason to believe the psychiatrist may be responsible? A divided Georgia Supreme Court recently addressed that question.

Cooksey v. Landry

A young man committed suicide in 2012. He had been under a psychiatrist’s care for many years. A month before the man’s death, the psychiatrist prescribed two common antidepressant drugs. These drugs carried what is known as a “Black Box Warning,” which is the strongest warning the Food and Drug Administration may require for a legal product. The FDA cautioned that use of these two drugs can lead to “an increased risk of suicidal thinking and behavior in young adults.”

Following his death, the man’s father was named administrator of his estate. Both of his parents then started looking into a possible cause of action against the psychiatrist for malpractice and wrongful death. But in order to bring a malpractice claim in Georgia, a medical expert must sign an affidavit describing that “at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

The only way an expert could ascertain the “factual basis” for a malpractice claim would be to examine the deceased man’s psychiatric records. Accordingly, the parents asked a Georgia trial judge to issue an injunction requiring the psychiatrist to turn over their son’s records. The judge agreed and issued the injunction. The psychiatrist appealed.

By a vote of 5-2, the Georgia Supreme Court reversed the trial judge’s order. Chief Justice Hugh P. Thompson, writing for the majority, said, “unlike other recognized privileges, the psychiatrist-patient privilege survives the death of the patient.” Only the patient can waive the privilege. The Georgia legislature further emphasized this when it exempted psychiatric records from laws permitting disclosure of other health records to the personal representative of a deceased individual’s estate.

Justice Robert Benham, in a dissenting opinion joined by Justice Carol W. Hunstein, argued despite the law, “this Court should hold as a matter of public policy” that the father, acting as his son’s administrator, should have the authority to waive privilege in order to assert a possible claim against the psychiatrist whose conduct may have contributed to his death. The purpose of the privilege, Justice Benham said, “is to protect the patient, along with the public interest in promoting mental health care, not the doctor.”

But as the Chief Justice explained in the majority opinion, the psychiatrist cannot assert any privilege, only the patient. And as far as Georgia law is concerned, if the patient dies without waiving his privilege, the courts cannot assign it to his estate or heirs. In this case, the parents have no right under the law to access their son’s psychiatric records—even if it is to prove his psychiatrist may be liable for his death. Unfortunately, as Justice Benham noted in his dissent, this means a patient’s death deprives him (or his estate) of any ability to pursue a psychiatrist whose treatment clearly failed.

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Not all motor vehicle accidents involve cars or trucks. Even the misuse of something like a golf cart may give rise to a personal injury lawsuit. And as with any accident litigation, the roles and responsibilities of the insurance companies may prove critical.

Golf Cart Accident

For example, the Georgia Court of Appeals recently weighed in on a personal injury lawsuit arising from a golf cart accident. The incident occurred in a planned community in Fayette County. A man was driving his motorized golf cart on one of the community’s paths when he struck and injured a woman. She sued for negligence.

The driver had a homeowner’s insurance policy. The insurance company asked a Georgia court for a declaration that it was not liable for any damages arising from the golf cart accident. The original policy excluded coverage for all motor vehicles except for golf carts “designed to carry up to 4 persons.” A later amendment to the policy specified a golf cart was covered if it was “[d]esigned to carry up to 2 persons” and two golf club bags.

The golf cart in this case was designed with four seats. The insurance company argued the amended policy only covered two-seat golf carts. The driver replied that the language simply meant the golf cart had to seat at least two people in order to receive coverage.

Both the trial court and the Court of Appeals agreed with the driver. Judge Carla Wong McMillan, writing for the Court of Appeals, said that while both parties offered a reasonable interpretation of the insurance policy, the language was ultimately ambiguous, and Georgia law resolved any such ambiguity in favor of the policyholder, not the insurance company. “By its express terms,” Judge McMillan said, “the Policy appears to exclude coverage for any golf carts that are designed to seat only one to three persons.” However, the amended policy created an ambiguity, as it may mean a golf court is excluded unless it seats “up to” two persons (a maximum) or it simply adds two- and three-seat golf carts to the original policy’s coverage of four-seaters (a minimum).

Ultimately, the insurance company, not the policyholder, is responsible for drafting the language of the policy in clear, unambiguous terms. As Judge Wong pointed out, even the insurance company’s own underwriting director acknowledged in a deposition that the policyholder’s interpretation of the policy was plausible. That does not mean the insurance company’s position was unreasonable, but again, in Georgia, the burden is on the insurer to prove its policy does not apply. And if the insurance adjuster thought the policyholder’s interpretation was reasonable, that suggests an ambiguity that must be resolved in his favor.

Accordingly, the Court of Appeals agreed with the trial court’s decision to grant summary judgment to the driver. This means the insurance company will be liable for any personal injury award arising from the accident victim’s lawsuit against the driver.

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In a June 19 decision, the Georgia Court of Appeals awarded summary judgment to the defendants in a personal injury lawsuit arising from serious burn injuries suffered by a 13-year-old child. The Court of Appeals, reversing a trial judge’s earlier decision, said the child had assumed the risk of standing too close to the fire that caused his injuries. Despite the child’s age, the court said he was old enough to understand the potential risks and consequences of his actions.

Taylor v. McGraw

The child and his grandfather were attending a backyard marshmallow roast at the defendants’ home. The defendants ignited a wood-burning fire in a metal barrel. One of the defendants instructed his children to take some sawdust from a nearby shed and throw it into the fire. This caused the fire to flare up. Shortly thereafter, the adults left the children alone with the fire. The victim and two of the defendants’ children then proceeded to get more sawdust and throw it into the fire. This “made the fire shoot up,” according to one of the defendant’s children and burned the victim.

The child’s mother sued on the grounds that the defendants were negligent in allowing the children unsupervised access to the fire and the combustible sawdust in the shed. She argued the defendants should have realized—especially after demonstrating what would happen if sawdust was thrown into the fire—that the children might injure themselves. The defendants, in response, argued the victim was responsible for his own injuries because he got too close to the fire.

The trial court denied the defendants’ motion for summary judgment on those grounds. The Court of Appeals reversed, finding that even if the defendants were negligent in failing to supervise the children, “the undisputed facts show as a matter of law that [the victim] assumed the risk of being burned when sawdust was thrown into the fire.”

Under Georgia law, a defendant is not liable in a tort action when the plaintiff’s own negligence is the “proximate cause” of his injuries. This includes cases where the plaintiff voluntarily assumes a risk and demonstrates a lack of care for his own safety. This rule can apply even when the victim is a child between the ages of 7 and 14, the appeals court explained, although “the circumstances of the case and the capacity of the particular child” will dictate whether he was capable of assuming the risk.

Based on the trial court’s record in this case—specifically, the testimony of the victim and the defendant’s children—the appeals court said there was no disputing the victim chose to stand next to the fire while the other children repeatedly threw sawdust into the flames. The appeals court said this demonstrated the victim had “actual and subjective knowledge” of the risks involved and that he “understood and appreciated” said risks. Ultimately, the victim acknowledged he simply wasn’t paying attention to the dangerous fire, and for that reason, the appeals court said the defendants were not liable for his injuries.

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In a June 11 decision, the Georgia Court of Appeals reversed a trial court’s judgment in favor of an auto insurer that sought to deny uninsured motorist coverage to an insured accident victim. The appeals court addressed the conditions by which an insurer may apply a “named driver exclusion” clause. The trial court said such a clause could be enforced in this case, but the appeals court disagreed.

Roberson v. 21st Century National Insurance Company

The case arose from a 2009 automobile accident. The plaintiff was driving his police cruiser in Macon when another vehicle struck him. The plaintiff filed a personal injury lawsuit against the driver and owner of the other vehicle. He also served his wife’s insurance company because she had a personal automobile policy that included uninsured motorist coverage.

The insurance company objected on the grounds the policy included a “Named Driver Exclusion Endorsement” that identified the plaintiff as an “excluded driver.” The insurance company argued this absolved it of any liability for providing uninsured motorist coverage. The trial court agreed and granted the insurance company’s motion for summary judgment.

The plaintiff appealed. A three-judge panel of the Court of Appeals reversed the grant of summary judgment. Presiding Judge Gary Blaylock Andrews, writing for the panel, said the Named Driver Exclusion Endorsement did not comply with Georgia law governing uninsured motorist coverage. The law requires such coverage unless the insured expressly rejects it in writing. In this case, Judge Andrews said, the policy did not contain such a rejection of coverage for the plaintiff. The endorsement only spoke in general terms and referred to the plaintiff’s wife as the policyholder. Georgia law requires a more specific and unambiguous rejection of uninsured motorist coverage.

This does not mean driver exclusions are never enforceable in Georgia. Judge Andrews noted the Court of Appeals previously upheld such an exclusion in cases where the insured and the excluded driver both signed express rejections of coverage. The key is that there must be a written rejection of uninsured motorist coverage. The insurance company cannot simply slip in language that purports to broadly reject such coverage.

Insurance is a type of contract, of course, and here the insurance company argued the exclusion should be enforced as simply part of that contract. Again, Judge Andrews explained that Georgia law imposes a specific duty on insurance companies that may only be waived under very specific circumstances. “The flaw comes not from what [the plaintiff's wife] bargained for, but from the fact that the policy purports to provide the coverage she bargained for without including a written rejection as required by” Georgia statute.

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On June 5, the Georgia Court of Appeals issued an important decision in a dispute between an accident victim and his insurance company over whether his policy covered uninsured and underinsured motorist damage. The case centered on the victim’s allegation that the insurance agent that sold him the policy illegally forged his name on a waiver depriving him of such coverage. The insurance company argued that even if the victim’s name was forged, it relied in good faith on the waiver. The trial court sided with the insurance company and granted it summary judgment. The Court of Appeals reversed and returned the case for trial.

Assaf v. Cincinnati Insurance Company

While walking alongside a road, the victim was struck and injured by an automobile. The vehicle was not insured. Accordingly, the victim filed a claim with his own automobile insurance insurance company for uninsured/underinsured motorist coverage. The victim said his policy covered up to $1 million in coverage.

The insurance company acknowledged the victim held an umbrella policy but said it did not provide excess uninsured/underinsured motorist coverage. In fact, the insurance company produced a copy of the victim’s insurance application, which included an express waiver of such coverage signed by the victim. Prior to 2009, when this policy was first issued, Georgia insurance law declared umbrella policies included uninsured/underinsured motorist coverage unless the policyholder signed a written waiver. (Undercurrent law, the opposite is true; an umbrella policy does not include such coverage unless expressly stated in writing.)

The victim argued his signature was forged by the agent who sold him the policy. The agent represented both the victim and the insurance company. The insurance company said even if that was true, it could not be held liable for relying on a misrepresentation made by the agent. Normally, that is true. Georgia law provides that when two parties to a contract use the same agent, neither party is liable for the agent’s misconduct unless there is evidence one party was complicit. There was no such allegation of complicity here.

Nevertheless, as the Court of Appeals explained, Georgia law also says a party is bound by any “willful concealment of material facts” made by its agent even if the party was unaware of the concealment. That means that if the victim in this case can prove the agent forged his signature on the waiver, the insurance company cannot escape responsibility by saying it did not know about the misconduct.

The Court of Appeals also rejected the insurance company’s argument that the victim was responsible for examining the insurance policy for any errors beforehand. Assuming that is true, the court said, the law in effect at that time required uninsured/underinsured motorist coverage unless waived in writing. Therefore, the victim’s failure to inspect the policy or object to the absence of such coverage does not prevent him from seeking to enforce the policy in court.

It must be reiterated the Court of Appeals did not decide any of these issues on the merits. This case will now be returned to a lower court for trial. The appeals court limited its decision to holding there were sufficient disputed facts such that summary judgment was not appropriate.

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Prescription drugs often produce significant negative side effects in patients. But under Georgia law, the burden is generally on the prescribing physician, not the drug’s manufacturer, to warn patients of any risks. The Georgia courts refer to this as the “learned intermediary” rule. The manufacturer still has a duty to warn physicians of risks, but it is then up to the physician to serve as the “learned intermediary” between the drug company and the patient.

While a typical manufacturer has a duty not to market defective products, the learned intermediary rule often shields drug companies from the injuries its products may cause. A recent example comes from a federal appeals court which, applying Georgia’s learned intermediary rule, upheld a trial court’s dismissal of a woman’s lawsuit against the manufacturers of an antibiotic that produced a severe allergic reaction.

Brown v. Roche Laboratories, Inc.

The patient in this case saw her primary care physician to treat a sinus infection. The doctor prescribed an antibiotic. Two weeks later, the patient returned to the doctor with additional symptoms. The physician diagnosed the patient with bacterial meningitis and proceeded to administer a second antibiotic. Half an hour later, the patient developed a severe rash. A dermatologist diagnosed the patient with two forms of skin cancer known to occur as the result of adverse reactions to antibiotics.

The patient sued the manufacturers of the two antibiotics. She argued the drugs were defectively labeled as they failed to contain proper warnings about their potential side effects. The patient produced an expert witness who said the manufacturers should have expressly warned physicians to perform “precautionary skin testing” before administering the antibiotics to patients with a sensitivity to penicillin, as the plaintiff here was.

A federal judge excluded the expert’s testimony, however, and dismissed the plaintiff’s complaint for lack of any other evidence. Even if there was proof that the drugs in question caused the plaintiff’s cancer, the judge said Georgia’s learned intermediary rule would still bar her lawsuit. The 11th U.S. Circuit Court of Appeals in Atlanta, which has jurisdiction over federal courts in Georgia, affirmed the trial judge’s decision. The three-judge appeals panel reiterated that under Georgia law, “[I]f a manufacturer of a prescription drug warns a patient’s physician of any risks or hazards of the drug and, despite the known risk of harm, the physician administers the drug, the manufacturer is insulated from liability for injuries suffered by the patient.”

The 11th Circuit also found no error in the trial judge’s decision to exclude the testimony of the plaintiff’s expert. The appeals court noted that the expert lacked expertise in either the drugs at issue or the Food and Drug Administration’s labeling requirements. A trial court is required to assess the “reliability” of offered expert testimony, and here, the judge lacked that confidence. But, again, even if the plaintiff presented a more credible expert, her lawsuit would still fail because of the learned intermediary rule.