Green v. Smith & Nephew AHP, Inc.

• Decision Date: 01 August 2000
• Docket Number: No. 98-2162.,98-2162.
• Parties: Linda M. GREEN, Plaintiff-Respondent, v. SMITH & NEPHEW AHP, INC., a/k/a Smith & Nephew Perry, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

238 Wis.2d 477

2000 WI App 192

617 N.W.2d 881

Linda M. GREEN, Plaintiff-Respondent, v. SMITH & NEPHEW AHP, INC., a/k/a Smith & Nephew Perry, Defendant-Appellant.¹

No. 98-2162.

Court of Appeals of Wisconsin.

Oral argument July 7, 2000.

Decided August 1, 2000.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Constantine L. Trela, Jr. and Hille R. Sheppard of Sidley & Austin of Chicago, Illinois; and Donald R. Peterson and Sherry A. Knutson of Peterson, Johnson & Murray, S.C., of Milwaukee. There was oral argument by Donald R. Peterson.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Robert L. Habush, Mark S. Young, Virginia M. Antoine, and Stefanie A. O'Shea of Habush, Habush, Davis & Rottier, S.C., of Milwaukee. There was oral argument by Robert L. Habush.

Before Fine, Schudson and Curley, JJ.

¶ 1. FINE, J.

Smith & Nephew AHP, Inc., appeals from a judgment entered on a jury verdict against it on the products-liability claim of Linda M. Green. Green claimed, and the jury found, that latex gloves manufactured by Smith & Nephew were defective and unreasonably dangerous, and were a cause of damages she suffered as a result of her allergic reaction to them. In light of evidence that a connection between latex gloves and the type of allergic reaction suffered by Green was essentially not known when Smith & Nephew made the latex gloves that she used, Green did not argue before the trial court, and does not contend on appeal, that Smith & Nephew was under any duty to warn of a possible allergic reaction. Thus, this is a straight defective/unreasonably-dangerous case, not a failure-to-warn case.

I.

¶ 2. Green is allergic to proteins in natural latex, a sensitivity that was triggered by her exposure to the proteins in Smith & Nephew's gloves, which were made from natural latex. Natural latex comes from rubber trees. She used the Smith & Nephew latex gloves during her employment as a radiology technologist and computerized tomography technologist at St. Joseph's Hospital. She was first diagnosed with what her amended complaint characterizes as "latex hypersensitivity" in April of 1991.

¶ 3. Green claimed that Smith & Nephew's latex gloves were defective and unreasonably dangerous because they had a higher protein content than latex gloves made by most other manufacturers, and because the cornstarch powder, which lined the inside of the gloves and made them easier to put on and take off than they would be without the powder, caused the proteins in the latex gloves to be more likely inhaled than latex proteins in powderless gloves. Green conceded that all of the proteins in the Smith & Nephew gloves came from the raw, rubber-tree latex, and that no proteins were added by Smith & Nephew's manufacturing process. She argued, however, that Smith & Nephew should have made the gloves using a process that would have reduced their protein content. She also contended that Smith & Nephew should not have used powder in its gloves.

¶ 4. Green presented to the jury evidence that although not common, latex-allergy among health-care workers is also not rare.² Thus, one of Green's experts opined that between five and seventeen percent of health-care workers have a sensitivity to latex. Another of her experts gave the figure at between six and twelve percent. Still another of Green's experts testified that between seven and ten percent of health-care workers were allergic to latex. We accept these estimates for our analysis because, as noted below, we must look at the evidence in a light most favorable to upholding the jury's verdict.

¶ 5. Smith & Nephew asserts that it is entitled to either a dismissal of Green's action or a new trial. Smith & Nephew gives five reasons supporting its request that we reverse: 1) that, as a matter of law, it is not liable to Green for what it characterizes as her "idiosyncratic" response to latex; 2) that the trial court gave the jury an erroneous instruction; 3) that the trial court erroneously permitted two of Green's witnesses to give expert opinions about whether the latex gloves were safe; 4) that the trial court should not have let the jury learn that the company to which Smith & Nephew sold its glove-manufacturing operation reduced the protein levels in the gloves; 5) that the jury's award of $584,000 for past and future pain, suffering, and disability was too much. For the reasons discussed below, we affirm.

II.

A. Strict Liability.

[1]

¶ 6. Whether Smith & Nephew is liable to Green for the injuries she suffered by using Smith & Nephew's latex gloves turns on Wisconsin's adoption of section 402A of the American Law Institute's RESTATEMENT (SECOND) OF TORTS (1965), which charted the contours of strict-liability in tort. See Dippel v. Sciano, 37 Wis. 2d 443, 459, 155 N.W.2d 55, 63 (1967)

(adopting § 402A). We evaluate the applicable legal principles against the facts of this case that are of record, giving to Green the benefit of all reasonable inferences that the jury could have drawn in returning its verdict in her favor. See Morden v. Continental AG, 2000 WI 51, ¶¶ 38-39, 235 Wis. 2d 325, 351-52, 611 N.W.2d 659, 672 (jury verdict sustained on appeal if there is any credible evidence to support it). Our legal analysis is, however, de novo. See Sunnyslope Grading, Inc. v. Miller, Bradford and Risberg, Inc., 148 Wis. 2d 910, 915, 437 N.W.2d 213, 215 (1989) (whether Wisconsin law permits recovery under certain facts is a question of law). We conclude that under Wisconsin law a manufacturer is liable to a person who suffers an adverse allergic reaction to a product because of a defect that is unreasonably dangerous to a not-insignificant percentage of the population using the product, even though that product may not be dangerous to a majority of its users or consumers.

[2]

¶ 7. With exceptions not material here, under Wisconsin law "`[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property.'" Dippel, 37 Wis. 2d at 459,155 N.W.2d at 63 (quoting § 402A(1)). This is true even though the manufacturer "`has exercised all possible care in the preparation and sale of his product.'" Ibid. It is also true that "[a] product may be defective and unreasonably dangerous even though there are no alternative, safer designs available." Sumnicht v. Toyota Motor Sales, Inc., 121 Wis. 2d 338, 371, 360 N.W.2d 2, 17 (1984). Additionally, a jury may, under circumstances that are not at issue here, infer from the fact of damage or injury that a product was defective. See Jagmin v. Simonds Abrasive Co., 61 Wis. 2d 60, 73-74, 211 N.W.2d 810, 817 (1973)

. This all, however, "does not make the manufacturer or seller an insurer nor does it impose absolute liability." Dippel, 37 Wis. 2d at 459-460, 459 N.W.2d at 63; see also Powers v. Hunt-Wesson Foods, Inc., 64 Wis. 2d 532, 536, 219 N.W.2d 393, 395 (1974). Thus, in the context of this case, it is generally recognized that a manufacturer or seller is not strictly liable under § 402A to "a consumer who suffers an allergic reaction to a product without any identifiable defect." Adelman-Tremblay v. Jewel Cos., 859 F.2d 517, 522 (7th Cir. 1988) (consumer may not recover in strict liability for injuries she suffered following her idiosyncratic allergic reaction to glue in an artificial-nail kit); see also Mountain v. Procter & Gamble Co., 312 F. Supp. 534, 536 (E.D. Wis. 1970) (product must be unreasonably dangerous to the "ordinary consumer") (allergic reaction to shampoo). Green does not dispute this general principle, but, as noted, contends that Smith & Nephew's latex gloves were defective because they had more proteins than they would have had if Smith & Nephew had made them in a different way, and also because they were powdered.

Thus, whether Smith & Nephew is liable to Green under strict-liability in tort turns on whether its latex gloves were "defective" and "unreasonably dangerous" within the meaning of § 402A and Dippel if they cause harm to some, but not all, consumers when used as intended.

¶ 8. There are no Wisconsin decisions discussing liability under § 402A where, as here, the plaintiff's allergic-response injuries are both: 1) not universal or nearly universal to the general population of consumers or users, and 2) not essentially unique to the plaintiff. There are, however, several decisions from other jurisdictions. The one closest in point is Ray v. Upjohn Company, 851 S.W.2d 646 (Mo. Ct. App. 1993).³ In Ray, the plaintiff worked in a factory that used a chemical that gave him asthma. See id.,851 S.W.2d at 648, 651. Although "tolerable for most people," exposure to the chemical "is dangerous" to those who are sensitized to it. Id.,851 S.W.2d at 650. Only five percent of persons exposed to the chemical "will acquire permanent asthma." Id.,851 S.W.2d at 655. Without any analysis beyond the conclusion, Ray nevertheless held that there was thus sufficient evidence from which the jury could find that the chemical was defective and unreasonably dangerous. Ibid. Although Ray provides company for Green's argument, we must turn to Wisconsin law for a governing rationale to determine whether, in Wisconsin, a product can be defective if it adversely affects some but not all users.

¶ 9. The essential rationale behind § 402A was expressed in Comment c:

On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public

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