Jones v. Minnesota Min. and Mfg. Co.

• Citation: 669 P.2d 744,100 N.M. 268,1983 NMCA 106
• Decision Date: 01 September 1983
• Docket Number: No. 6094,6094
• Parties: , 36 UCC Rep.Serv. 1554 Virginia JONES, as the Personal Representative of the Estate of Donald Jones, Deceased, and Virginia Jones, Individually, and Mr. and Mrs. Arthur Young, Plaintiffs-Appellants, v. MINNESOTA MINING AND MANUFACTURING COMPANY, a/k/a "3M Company", Defendant- Appellee.
• Court: Court of Appeals of New Mexico

Page 744

669 P.2d 744

100 N.M. 268, 36 UCC Rep.Serv. 1554

Virginia JONES, as the Personal Representative of the Estate

of Donald Jones, Deceased, and Virginia Jones,

Individually, and Mr. and Mrs. Arthur

Young, Plaintiffs-Appellants, v. MINNESOTA MINING AND MANUFACTURING COMPANY, a/k/a "3M

Company", Defendant- Appellee.

No. 6094.

Court of Appeals of New Mexico.

Sept. 1, 1983.

Paul Livingston, Steven E. Schonberg, P.C., Albuquerque, for plaintiffs-appellants

Steven L. Tucker, Judith C. Herrera, Jones, Gallegos, Snead & Wertheim, P.A., Santa Fe, for defendant-appellee.

OPINION

WOOD, Judge.

Young and Jones received permanent implants of radioactive I-125 (Iodine-125) in the treatment of cancer of the prostate. For the purposes of this appeal, it is not disputed that they received excessive radiation, and the excessive radiation caused the injuries. This appeal involves only the claims against 3M (Minnesota Mining and Manufacturing Company) for the injuries to Young and Jones. The trial court granted summary judgment in favor of 3M. The appeal involves the propriety of the summary judgment, specifically, whether there was a genuine issue of fact requiring trial. See Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). We: (1) set forth the background of the litigation; (2) identify limitations in the appellate record; (3) discuss the products liability contentions; and (4) discuss the warranty contentions.

Background

Two physicians, radiotherapists Simmons and Murrell with prior experience in utilizing other isotopes in the treatment of cancer, and in treatment of cancer of the prostate, undertook in 1977 to treat cancer of the prostate by implanting I-125. Between December 1977 and the summer of 1979, Simmons and Murrell implanted I-125 in the prostates of eighteen patients. Although the briefs do not correlate Young or Jones with a particular number, our reckoning is that their place in the sequence was approximately patients twelve and thirteen. There is some uncertainty as to which physician performed a particular implant, but this is of no consequence in this appeal. The patients were common patients of both physicians.

The I-125 implanted was in the form of seeds. The radioactive strength of the seed was expressed in millicuries, compensated. Because the strength of the seed lessens with the passage of time, the shipping documents stated the strength on an assay date. The strength at time of implant was determined by use of a decay chart. There is no dispute, in this appeal, that the strength of the seeds implanted in Young and Jones was .56 millicuries at the time of the implants.

The radiation intended to be delivered by the implant is determined by the seed strength, the size of the prostate (stated as average dimension of the prostate, in centimeters) and the spacing of the seeds, also stated in centimeters. We refer to the intended dosage as the desired dose. "In almost all cases the volume to be irradiated corresponds to the entire prostate. It was not the practice of the physicians to prescribe limiting doses to the bladder, rectum or other normal tissues."

The actual dosage is computed after the implant; this is referred to as dosimetry. The computations were for a minimum peripheral dose, defined as the minimum dose to any point on the margin of the prostate.

The computations require information as to the location and number of seeds implanted. This information was obtained from right orthogonal films consisting of an AP and lateral view. With this information, and the known seed strength, the actual dosage can be calculated. The calculation can be performed manually, but it is a chore because calculations must be made for each seed. These calculations involve the distance between seeds and the contribution of each seed. A computer can perform these calculations; a computer and a software program were purchased; the calculations were made by using the computer and the software program. There is no issue in this appeal as to the propriety of using a computer program for these calculations.

The computer calculations provided dosage information in terms of rads per hour. To determine actual dosage, rads per hour must be converted to rads to total decay because the radiotherapist needed to know the total rads. Total rads means rads in a year. The initial computer program did not make this conversion; it was done, manually, by the dosimetrist, Sachs. There is evidence that a manual conversion was performed in the Young and Jones cases.

After the conversion was made, a chart was prepared showing isodose curves, which are defined as lines of uniform dosage. The radiotherapist determines which is the appropriate isodose curve and, in doing so, considers the size of the cancer and the shape of the curves. The appropriate isodose curve shows the total rads or total dose.

The hospital records for Young show a total dose of 16,000 rads; a correction sheet in those records indicates the total dose was 75,000 rads. The hospital records for Jones indicate a total dose between 14,000 and 18,000 rads and a corrected dose of 74,664 rads. The lesser dosage shown for both patients was based on a factor of 445 in converting rads per hour to total rads. This conversion factor was erroneous; the corrected and greater dosage was based on the correct conversion factor of 2074. The desired dose, for both patients, had been a total dose between 16,000 and 24,000 rads. The corrected dose was excessive.

Limitations in the Appellate Record

The Young-Jones damage claims were asserted against multiple defendants. This appeal involves only 3M, the manufacturer of the seeds. Two general theories of liability were asserted against 3M--products liability and breach of warranty. Summary judgment was granted in favor of 3M on both liability theories.

The trial court identified seven depositions that it had considered in granting summary judgment. Plaintiffs' request for the record proper and for a transcript of proceedings did not ask that all of the seven depositions be included in the appellate record. Portions of the seven depositions were included, as attachments, to pleadings filed in the trial court and are before us as part of the record proper. 3M requested, see NMSA 1978, Civ.App.R. 7(b) (Cum.Supp.1983), the depositions of Simmons, Murrell and Sachs. Those depositions are before us. 3M also requested all the exhibits to the depositions of Simmons and Murrell. We do not know of what "all" of the exhibits consists. We have Exhibits 12 and 13, found at the back of Volume II of Simmons' deposition, and a separate box of exhibits numbered 27 through 69 and 92 through 108.

Our decision is based on the following appellate record: (a) the exhibits identified in the preceding paragraph; (b) the depositions of Simmons, Murrell and Sachs; (c) the portions of the depositions of Kelsey, Anderson, Leavitt and Syed included in the record proper. Plaintiffs attached to their reply brief portions of depositions not included in the record proper; we have not considered these attachments to the reply brief because they are not part of the appellate record.

Products Liability Contention

A. Identifying the Issues to be Decided

Because plaintiffs' briefs make extensive scattershot arguments, we identify the products liability issues to be decided in this appeal.

1) Products liability law applies.

The claims against 3M were that the radioactive seeds were dangerous products and were products for the purpose of products liability, that 3M failed to adequately warn users of the seeds of the dangers of implanting the seeds into patients, and that because of an inadequate warning the seeds were defective. Plaintiffs argue, extensively, in their brief-in-chief, that products liability law is applicable to their claims against 3M. See generally Stang v. Hertz Corporation, 83 N.M. 730, 497 P.2d 732 (1972). 3M does not claim that products liability is inapplicable; rather, it points out that its motion for summary judgment was based on products liability.

2. Duty to warn.

Plaintiffs contend that 3M had a duty to give adequate or proper warnings. See Restatement (Second) of Torts Sec. 402A, Comments h and k (1965). One of the trial court's conclusions was that 3M had no duty to "give warning which would be extensive enough to educate the treating physicians in correct treatment procedures." Plaintiffs argue the duty to warn in terms of foreseeability and misuse. See NMSA 1978, UJI Civ. 14.15 (Repl.Pamp.1980), the Committee Comment. This appeal does not involve the extent of the duty to warn. 3M agrees that, as a general proposition, there is a duty to warn, but any such duty was not applicable in these cases. The parties agree that, under the circumstances of these cases, any warnings to be given would be to the radiotherapists. Perfetti v. McGhan Medical, 99 N.M. 645, 662 P.2d 646 (Ct.App.1983); Hines v. St. Joseph's Hospital, 86 N.M. 763, 527 P.2d 1075 (Ct.App.1974).

3. Factual issue as to adequacy of 3M's warnings.

Literature issued by 3M, or for which it appears to be responsible, are Exhibits 12, 13, the portion of 39 which begins "I-125 SEEDS. FOR PROFESSIONAL USE ONLY[,] Revised: February 1978", 93, 94 and possibly 92. Deposition questioning went into the "adequacy" of various statements in the publications, but most of this questioning is not pertinent to the warning aspect of these cases. The warning aspect in these cases goes to the warnings as to excessive dosages of radiation.

As to excessive dosage, plaintiffs assert there is a factual issue as to the adequacy of the warnings. We need not identify the specific arguments because adequacy of the warnings is not an issue in the appeal. Summary judgment was not granted on the basis of adequate warnings. The trial court's ruling, quoted hereinafter in paragraph A(5), was that any appropriate warning would have added nothing to the knowledge of the radiotherapists.

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