Timothy C. Talton appeals from the trial court’s dismissal of his negligence action against William H. Kitchens and the law firm of Arnall Golden Gregory, L.L.P. Finding no error, we affirm. “A motion to dismiss may be granted only when the complaint establishes that the plaintiff is not entitled to relief under any facts that could be proved. We review the trial court’s ruling de novo.” Citation omitted. Cook v. Regional Commun. , 244 Ga. App. 869, 870 539 SE2d 171 2000. The complaint at issue shows the following: Cryolife, Inc. is a corporation which purchased human cadaver tissue from another company, then processed, packaged, and distributed the tissue to hospitals for use in implants and other surgeries. Prior to June 2001, Cryolife was aware that some of the cadaver tissue it had processed was contaminated with Clostridium bacteria. Even with this knowledge, Cryolife failed to properly test or treat the cadaver tissue before distributing the tissue to hospitals, and such failure violated industry standards.
Defendants William Kitchens and his employer, Arnall Golden Gregory, L.L.P. collectively, “AGG”, were Cryolife’s attorneys. Prior to June 2001, AGG consulted with Cryolife about the cadaver tissue and was aware of Cryolife’s procedures for testing and treating the cadaver tissue. AGG recommended to Cryolife that the corporation attach warning labels to the cadaver tissue packages stating that the tissue was not sterile and advising physicians to prescribe prophylactic antibiotics. At some point after AGG made that recommendation, but before June 2001, Cryolife shipped the tissue to hospitals in packages that contained warning labels which stated the tissue had been tested for infectious disease. The labels also said the tissue had been treated with antimicrobials to reduce the number of organisms that may have been present at the time of procurement, and subsequently, a portion of this tissue was tested and found to be free from detectable levels of bacterial and fungal microorganisms. Although this tissue has been tested, there is no assurance that this tissue is free from all infectious diseases or microbial contamination. Each package also contained a “Certificate of Assurance” which stated that “This allograft was aseptically processed by CryoLife’s proprietary process. The finished product conforms to CryoLife’s strict and exacting microbiology and quality standards.” It is undisputed that neither the warning label nor the Certificate of Assurance referred in any way to Kitchens or AGG.
