Green v. Smith & Nephew AHP, Inc.

• Decision Date: 12 July 2001
• 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-Petitioner.
• Court: Wisconsin Supreme Court

245 Wis.2d 772

2001 WI 109

629 N.W.2d 727

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

No. 98-2162.

Supreme Court of Wisconsin.

Oral argument February 27, 2001.

Decided July 12, 2001.

For the defendant-appellant-petitioner there were briefs by Joseph D. Kearney, Milwaukee; Donald R. Peterson, Sherry A. Knutson and Peterson Johnson & Murray, S.C., Milwaukee; Thomas W. Merrill, Constantine L. Trela, Jr., Hille R. Sheppard, Robert N. Hochman and Sidley & Austin, Chicago, Illinois, and oral argument by Joseph D. Kearney.

For the plaintiff-respondent there was a brief by Robert L. Habush, Mark S. Young, Virginia M. Antoine and Habush, Habush, Davis & Rottier, S.C., Milwaukee, and oral argument by Robert L. Habush.

An amicus curiae brief was filed by O. Thomas Armstrong and Quarles & Brady LLP, Milwaukee, Mary A. Wells, L. Michael Brooks, Jr., and Wells, Anderson & Race LLC, Denver, CO, and Hugh F. Young, Jr., Reston, VA, on behalf of the Product Liability Advisory Council, Inc.

¶ 1. JON P. WILCOX, J.

This case arises from a products liability claim brought by Linda M. Green (Green) against Smith & Nephew AHP, Inc. (S&N). Green alleged that S&N manufactured defective and unreasonably dangerous latex medical gloves, which caused her to suffer injuries arising from allergic reactions to the proteins in those gloves. Accordingly, Green claimed, S&N should be held strictly liable for these injuries.

¶ 2. At the close of the trial on Green's claim, the jury returned a verdict in favor of Green and against S&N. The Milwaukee County Circuit Court, Judge Charles F. Kahn, Jr., entered judgment on the verdict. S&N subsequently appealed, but the court of appeals affirmed the circuit court judgment in its entirety. Green v. Smith & Nephew AHP, Inc., 2000 WI App 192, 238 Wis. 2d 477, 617 N.W.2d 881.

¶ 3. S&N now argues to this court that the jury verdict and, consequently, the circuit court judgment and court of appeals decision affirming that verdict were the result of four distinct legal errors. S&N thus presents four issues for review: (1) Did the circuit court err in instructing the jury that a product can be deemed defective and unreasonably dangerous based solely on consumer expectations about that product? (2) Did the circuit court err in instructing the jury that a product can be deemed defective and unreasonably dangerous regardless of whether the manufacturer of that product knew or could have known of the risk of harm the product presented to consumers? (3) Could the jury properly find that S&N's gloves were defective and unreasonably dangerous where the evidence introduced at trial showed that the gloves contained a substance that causes an allergic reaction in 5 to 17 percent of their consumers? (4) Did the circuit court err in admitting certain opinion evidence regarding the safety of S&N's gloves?

¶ 4. Upon review of the issues presented by S&N, we conclude as follows. First, the circuit court did not err in instructing the jury that a product can be deemed defective and unreasonably dangerous based solely on consumer expectations about that product. Second, the circuit court did not err in instructing the jury that a product can be deemed defective and unreasonably dangerous regardless of whether the manufacturer of that product knew or could have known of the risk of harm the product presented to consumers. Third, the jury could properly find that because the evidence introduced at trial showed that S&N's gloves contained a substance which causes an allergic reaction in 5 to 17 percent of their consumers, those gloves were defective and unreasonably dangerous. And fourth, although the circuit court erred in admitting the opinion evidence at issue, this error was harmless and, therefore, does not warrant a new trial.

¶ 5. In light of these conclusions, we hold that the jury verdict in this case was not the result of reversible error. Thus, we hold that the court of appeals correctly affirmed the circuit court's entry of judgment on the verdict.

I

[1]

¶ 6. On review, this court regards the evidence adduced at trial in the light most favorable to the jury's verdict. Thompson v. Village of Hales Corners, 115 Wis. 2d 289, 314, 340 N.W.2d 704 (1983). "This is especially true where, as here, the verdict has the approval of the [circuit] court." Id. In the case at hand, the jury returned a verdict in favor of Green. Hence, we review the evidence adduced at trial in the present case in the light most favorable to Green.

A

¶ 7. Green is a health care worker. She began employment at St. Joseph's Hospital in Milwaukee in 1978 where, prior to the commencement of this action, she worked as a radiology technologist and, beginning in 1986, as a CT scan technologist. During the course of this employment, hospital rules required Green to wear protective gloves while attending patients. To comply with these rules, Green wore powdered¹ latex gloves manufactured by S&N. Initially, Green used one or two pairs of gloves per shift. However, upon her promotion to the CT department, this use began increasing and, by about 1987 or 1988, Green's job required her to don up to approximately forty pairs of gloves per shift.

¶ 8. Prior to 1989, Green never had experienced allergies; however, in 1989 Green began suffering various health problems. Early that year, Green's hands became red, cracked, and sore, and began peeling. In response to this condition, she applied hand lotion, changed the soap she used, changed the type of hand towels she used, and tried various other remedies. Nevertheless, the rash continued.

¶ 9. By September 1989, Green's condition deteriorated. Her rash spread to her upper trunk and neck, and she began experiencing chronic cold-like symptoms such as a runny nose and watery eyes. Green's symptoms grew increasingly severe, eventually culminating in an acute shortness of breath, coughing, and tightening of the throat. As a result, Green spent significant time in the hospital: approximately one day in September 1989; approximately five days beginning in late March 1990; approximately five days in February 1991; and approximately three days beginning in late April 1991.

¶ 10. After undergoing various treatments and tests, Green was diagnosed in May 1991 with latex allergy. This allergy has compelled Green to avoid contact with latex, thus causing her to change jobs and limit the items she purchases, things she eats, and activities in which she participates. Moreover, Green's latex allergy caused her to develop asthma, thereby further limiting her lifestyle.

B

¶ 11. In 1994 Green commenced the present products liability action against S&N. Green alleged that the S&N gloves which she had used at St. Joseph's Hospital were defective in two respects: (1) the gloves contained excessive levels of allergy-causing latex proteins; and (2) the cornstarch with which S&N powdered its gloves increased the likelihood that persons would inhale the latex proteins. Green conceded that the proteins in S&N's gloves naturally occur in the rubber-tree latex from which they are produced. Green also conceded that S&N did not add any proteins to its gloves. However, Green argued that although S&N could have significantly reduced the protein levels in and discontinued powdering its gloves by adjusting its production process, S&N nonetheless utilized a production process that maintained these defects in the gloves. These defects, Green alleged, created the unreasonable danger that S&N's gloves would cause consumers to develop latex allergy and suffer allergy-related conditions. Moreover, Green alleged that as a result of these unreasonably dangerous defects, S&N's gloves caused her to develop latex allergy and allergy-related conditions and, therefore, suffer injuries. Consequently, Green claimed, S&N should be held strictly liable for these injuries.

¶ 12. At the subsequent trial on Green's claim, the parties presented in pertinent part the following evidence to the jury. Latex allergy is caused by exposure to latex proteins. Upon exposure to latex proteins, some persons' immune systems produce antibodies to expel those proteins. The likelihood that such a person's immune system will produce antibodies in response to latex proteins increases in relation to the person's exposure to the proteins. Once a person's immune system produces these antibodies, he or she is "sensitized" to latex. Subsequent exposure to latex then may cause that person to develop progressively worse allergic reactions including irreversible asthma and even anaphylaxis, a hypersensitivity which, upon exposure to even a small amount of latex proteins, may trigger a life-threatening allergic reaction — anaphylactic shock.² However, at the time Green began experiencing her injuries, the health care community generally was unaware that persons could develop latex allergy.

¶ 13. The primary cause of latex allergy is latex gloves and, for this reason, latex allergy disproportionately affects members of the health care profession. According to Green's medical experts, the vast majority of people with latex allergy — up to 90 percent — are health care workers. And while latex allergy is not common among the general population, Green's medical experts testified that it affects between 5 and 17 percent of all health care workers in the United States.³

¶ 14. Green further presented evidence that high-protein, powdered latex gloves are more dangerous than low-protein, powderless gloves. For example, one of Green's medical experts cited a study in which researchers tested how latex-sensitive persons reacted to various protein levels in latex gloves. In this study, the researchers found that while 75 percent of the tested individuals reacted to high-protein gloves, only 7 percent reacted to low-protein gloves. Similarly, another of Green's medical experts read to the jury a...