Bouchard v. American Orthodontics, 7347

• Decision Date: 20 July 1995
• Docket Number: No. 7347,Docket No. KEN-94-761,7347
• Citation: 661 A.2d 1143
• Parties: William BOUCHARD et al. v. AMERICAN ORTHODONTICS, et al. DecisionLaw
• Court: Maine Supreme Court

Page 1143

661 A.2d 1143

William BOUCHARD et al. v. AMERICAN ORTHODONTICS, et al.

Decision No. 7347.

Law Docket No. KEN-94-761.

Supreme Judicial Court of Maine.

Submitted on Briefs May 1, 1995.

Decided July 20, 1995.

Robert J. Daviau, Daviau, Jabar & Batten, Waterville, for Reichtels.

Harry B. Center, II, Smith Lliott Smith & Garmey, P.A., Saco, for Bouchards.

Jennifer A. Holbrook, Robinson, Kriger, McCallum & Greene, P.A., Portland, for American Orthodontics.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

WATHEN, Chief Justice.

Plaintiffs William Bouchard and Karen Bouchard, individually and for William, and Richard Reitchel, individually and for Anastasia Reitchel, appeal from an order entered in the Superior Court (Kennebec County, Chandler, J.) granting a summary judgment on their products liability claims in favor of defendant American Orthodontics. Plaintiffs contend that a summary judgment was precluded by the existence of genuine issues of material fact. Finding no error, we affirm the judgment.

In 1988 a licensed orthodontist, using wires and brackets supplied by American Orthodontics, put braces on the teeth of plaintiffs William Bouchard and Anastasia Reitchel. The wires used to align the teeth were attached to the brackets on the braces with brass connecting pins, supplied by T.P. Orthodontics. When the braces were removed two years later, permanent stains were discovered on plaintiffs' teeth.

Plaintiffs commenced actions for strict liability pursuant to 14 M.R.S.A. § 221 (1980) ¹ against defendant American Orthodontics. Plaintiffs jointly engaged a metallurgist from Massachusetts Institute of Technology, to examine the orthodontic appliances used in their treatment. After testing, the expert testified in a deposition that the brackets supplied by American Orthodontics were made of stainless steel, the material "of choice for in vivo applications." Although he observed that even the best grades of stainless steel are vulnerable to corrosion when used in the body, remarkably there appeared to be no corrosion whatever of the stainless steel products supplied by defendant.

The expert also noted that the pins supplied by T.P. Orthodontics were made of brass, which is "totally and spectacularly unsuitable for use in the human body in any application, ... [because] it will corrode and release salts of copper and zinc into the surrounding tissue, with adverse clinical consequences. Such results are completely foreseeable." He also testified that, although he thought the staining was caused by the corrosive products released by the brass pins, he lacked any expertise to determine whether those corrosive products might actually stain teeth. Based on this expert opinion, plaintiffs amended their complaints to add T.P. Orthodontics, supplier of the brass pins, as a defendant. No other expert was designated by any party.

The court granted American Orthodontics' motion for summary judgment at the close of discovery after determining that "plaintiff has hired an expert but his testimony is that there was nothing wrong with the stainless steel appliances supplied by American Orthodontics and that they have not caused the damage to [plaintiffs'] teeth." In response to a motion pursuant to M.R.Civ.P. 54(b)(1), ² the court entered final judgment on behalf of American Orthodontics and left plaintiffs' claims against T.P. Orthodontics unresolved. Plaintiffs appeal from that judgment.

The function of a summary judgment is to permit a court, prior to trial, to determine whether there exists a triable issue of fact or whether the question before the court is solely one of law. Bigney v. Blanchard, 430 A.2d 839 (Me.1981). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). It is well settled that a summary judgment in defendant's favor is proper when plaintiff will have the burden of proof on an essential issue at trial and it is clear that defendant would be entitled to a directed verdict if plaintiff presented no more evidence than was before the court on the motion for a summary judgment. H.E.P. Development Group, Inc. v. Nelson, 606 A.2d 774, 775 (Me.1992). When reviewing an appeal of a grant of a summary judgment, we view the evidence in the light most favorable to the party against whom the judgment was granted to determine if the trial court committed an error of law. Id. at 775.

"Strict products liability attaches to a manufacturer when by a defect in design or manufacture, or by a failure to provide adequate warnings about its hazards, a product is sold in a condition unreasonably dangerous to the user." Pottle v. Up-Right, Inc., 628 A.2d 672, 674-75 (Me.199...