3-M Corp. McGhan Medical Reports Div. v. Brown
| Decision Date | 19 September 1985 |
| Docket Number | No. BA-224,CORPORATION--M,BA-224 |
| Citation | 10 Fla. L. Weekly 2199,475 So.2d 994 |
| Parties | 10 Fla. L. Weekly 2199, Prod.Liab.Rep. (CCH) P 10,705 3-McGHAN MEDICAL REPORTS DIVISION, Appellant/Cross-Appellee, v. Gay BROWN, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
Rutledge R. Liles of Howell, Liles, Braddock & Milton, Jacksonville, for appellant/cross-appellee.
Robert F. Spohrer and John S. Mordecai of Zisser, Robison, Spohrer, Wilner & Harris, Jacksonville, for appellee/cross-appellant.
This cause is before us on appeal and cross appeal from a final judgment entered on a jury verdict in favor of plaintiff/appellee in a suit for personal injuries allegedly resulting from the rupture of a mammary implant manufactured by defendant/appellant. The seven issues raised on appeal and one issue asserted on cross appeal are set out hereafter. On consideration of the oral arguments, briefs, and record, we hold that appellant's points are well taken and that the errors below require remand for a new trial. We also find merit in the issue on cross appeal.
Briefly stated, the facts are that, on May 26, 1976, plaintiff underwent cosmetic plastic surgery for implantation of gel-filled breast prostheses. The surgery was successful, and it was not until July, 1982, that plaintiff noticed lumps in her breast. At that time, she was examined by the first of several doctors, and it was ultimately determined that the left breast implant had ruptured and allowed the escape of silicone gel. Surgery was performed to remove the escaped gel, but all of the gel was not removed. A new mammary implant was inserted in the left breast; the right implant was not replaced. Several small lumps of silicone gel from the ruptured implant remain in plaintiff's left breast.
Suit was filed, alleging that the implant was negligently manufactured and defective, and seeking damages based on breach of implied warranty, negligence, and strict liability. The complaint also sought punitive damages, but the trial court granted the defendant's motion for summary judgment as to that portion of the complaint on the grounds that defendant was a successor corporation to the manufacturer of the subject implant and therefore had no liability for punitive damages for the alleged defects. On cross appeal, appellee assigns as error the entry of summary judgment on the punitive damage issue.
At trial, the following rulings were made, which are the subject of this appeal.
Dr. Michael Pardue, a certified plastic surgeon, was allowed to testify concerning defects and ruptures of the Model 81 McGhan implant, despite objection that the case herein involved a Model 80 McGhan implant, and that there was a failure to establish a predicate for the introduction of the evidence relating to another type of implant. Plaintiff argued below and in this court the theory that defendant's surgical implants were defective because the outer envelope was too thin and of insufficient strength and because the silicone gel filler was too fluid and lacked cohesivity. The record, however, does not support the theory that these alleged defects (envelope too thin and gel too fluid) were related to the spontaneous rupture in the Model 81 implants and that the Model 80 was substantially and materially similar in that regard so that evidence of ruptures in one model could be considered a basis for finding defects in the other model.
The record, in fact, tended to establish that the two models were significantly different in design and that the difference in design was the basis for the spontaneous ruptures of the later model. Specifically, the evidence showed that the Model 80 implant was round, without a suture tab, whereas the Model 81 was a contoured, tear-shaped implant with a suture tab. Evidence also tended to show that the instances of spontaneous rupture involving the Model 81 implant were related to the existence of the suture tab in the design. There being no proper predicate laid, the evidence relating to the other type of implant was improperly admitted and highly prejudicial. The rule is stated most recently in Voynar v. Butler Manufacturing Company, 463 So.2d 409, 413 (Fla.4th DCA 1985):
The judge also properly excluded evidence of prior accidents. The proffer demonstrated that of the eight accidents sought to be introduced, only two involved the Butlerrib II panels. In both of these accidents, the panels were installed on a four in twelve slope--a slope eight times as steep as that involved In Railway Express Agency v. Fulmer, 227 So.2d 870, 873 (Fla.1969), the Florida Supreme Court held: "Evidence of the occurrence or non-occurrence of prior accidents is admissible only if it pertains to the use of the same type of appliance or equipment under substantially similar conditions."
here. Evidence of prior accidents is not admissible unless the proffer demonstrates they involved the use of the same type of equipment under substantially similar conditions. Lasar Manufacturing Co. v. Bachanov, 436 So.2d 236 (Fla.3d DCA 1983). [emphasis added]
Richard Compton, a former shareholder and vice president of the defendant corporation, was allowed to testify concerning his awareness of the existence of spontaneous ruptures of other implants manufactured by his company. On cross-examination, Mr. Compton properly was asked about any reports of spontaneous ruptures of the Model 80 implant, and he replied that there were none. Thereafter, the plaintiff sought to cross-examine Mr. Compton, over objection by the defendant, on the reported ruptures of the Model 81 product. This improper cross-examination allowed the jury to infer that the witness was lying, although he testified truthfully concerning no reports of ruptures of Model 80, and his subsequent testimony as to spontaneous ruptures concerned a different product, Model 81.
The deposition of Thomas Talcott, a biomaterials engineer was read to the jury, as follows:
Q. [plaintiff's counsel] Are you familiar with the product manufactured in 1976 by the McGhan Medical Corporation?
A. Yes.
Q. Which was known as the Model 80 gel-filled mammary prosthesis?
A. Yes.
Q. What was your familiarity with that product?
A. Well, the familiarity with that product is that product had a ultrasoft gel and some previous products to that at Heyer-Shulte had ultrasoft gels and they had captured a large share of the mammary prosthesis market.
Q. Mr. Talcott, what specifically is your opinion as to why that product is defective?
A. I believe it's defective in that the gel is too soft and shows an excessive involvement with the tissue.
Defendant's objections to the testimony for lack of predicate should have been sustained. The questioning here is objectionable on at least two grounds. First, counsel's last question, supra, assumes the existence of a defect, a fact not testified to by the witness. Also objectionable is the fact that the answer sought to be elicited from the witness (i.e., product has "defect") tells the jury how to decide the case, is not helpful, and may, in fact, be misleading. 1 The personal opinion of this witness that "the gel is too soft and shows an excessive involvement with the tissue" does not establish
that the product is defective; it must also appear that these characteristics...
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