Anderson v. Somberg

• Decision Date: 10 April 1978
• Citation: 158 N.J.Super. 384,386 A.2d 413
• Parties: Marie ANDERSON, General administratrix and Administratrix ad Prosequendum of the Estate of Henry Anderson, Deceased, Plaintiff-Respondent and Cross- Appellant, v. Harold SOMBERG, St. James Hospital, Reinhold-Schumann, Inc., a Corporation, Defendants, and The Lawton Instrument Company, Inc., a Corporation, Defendant-Appellant and Respondent on Cross-Appeal.
• Court: New Jersey Superior Court — Appellate Division

Page 384

158 N.J.Super. 384

386 A.2d 413

Marie ANDERSON, General administratrix and Administratrix ad Prosequendum of the Estate of Henry Anderson Deceased, Plaintiff-Respondent and Cross- Appellant, v. Harold SOMBERG, St. James Hospital, Reinhold-Schumann, Inc. a Corporation, Defendants and The Lawton Instrument Company, Inc., a Corporation Defendant-Appellant and Respondent on Cross-Appeal.

Superior Court of New Jersey,Appellate Division.

Argued March 7, 1978.

Decided April 10, 1978.

Marc L. Dembling, Morristown, for appellant and respondent on cross-appeal, The Lawton Instrument Co., Inc. (Lieb, Berlin & Kaplan, Morristown, attorneys).

Ira J. Zarin, Newark, for respondent and cross-appellant Marie Anderson (Zarin & Maran, Newark, attorneys).

Thomas F. Campion, Newark, for defendant Harold Somberg (Shanley & Fisher, Newark, attorneys)(Charles A. Reid, III, on the brief).

Edward E. Kuebler, Mountainside, for defendant St. James Hospital.

John I. Lisowski, Livingston, for defendant Reinhold-Schumann, Inc. (Morgan, Melhuish, Monaghan & Spielvogel, Livingston, attorneys).

Before Judges LYNCH, KOLE and PETRELLA.

The opinion of the court was delivered by

KOLE, J. A. D.

This appeal involves claims arising out of an incident which occurred on November 14, 1967, at which time decedent Henry Anderson (Anderson) was being operated on for the removal of an intravertebral disc by defendant physician, Harold Somberg, at defendant St. James Hospital (the hospital). The other defendants were The Lawton Instrument Co., Inc. (Lawton) and Reinhold-Schumann, Inc. (Reinhold), the manufacturer and distributor, respectively, of the surgical instrument used during the operation. Reinhold had sold the instrument to the hospital.

The case was first tried in June 1972. A jury returned a verdict of no cause of action in favor of all defendants.

The Appellate Division reversed the judgment and remanded for a new trial. 134 N.J.Super. 1, 338 A.2d 35 (App.Div.1973). The Supreme Court affirmed. 67 N.J. 291, 338 A.2d 1 (1975), cert. den. 423 U.S. 929, 96 S.Ct. 279, 46 L.Ed.2d 258 (1975).

Anderson died on November 9, 1975, before the new trial on the remand. An amended complaint was filed substituting Marie Anderson, general administratrix and administratrix ad prosequendrum of the estate of Henry Anderson, deceased, as plaintiff and adding a claim for relief for wrongful death.

The second jury trial commenced on July 6, 1976. The jury returned a verdict of no cause of action with respect to Somberg and the hospital and a verdict in favor of plaintiff in the amount of $40,000 against Lawton and Reinhold.

Lawton and Reinhold filed motions for a new trial. Reinhold also filed a motion for indemnification against Lawton. The judge denied the motions for a new trial and granted Reinhold's motion for a judgment requiring Lawton to indemnify Reinhold. It entered judgment in favor of plaintiff as administratrix of Anderson's estate against Lawton in the amount of $40,000, plus interest in the amount of $22,933, and court costs. At the end of plaintiff's case the judge had granted a motion for involuntary dismissal with respect to the wrongful death action.

Lawton appeals. Plaintiff cross-appeals from the dismissal of the wrongful death claim.

On November 14, 1967, during the course of a laminectomy being performed by Somberg upon Anderson, one of the cups of a Lawton angulated pituitary rongeur broke off and became lodged in Anderson's back. Despite attempts to recover the cup it could not be removed; it was necessary for a second operation to be scheduled, at which time the object was in fact recovered. Much of the relevant factual background of these events has already been set forth in the reported opinions of this court and the Supreme Court.

At the second trial plaintiff sought to recover damages against Somberg for medical malpractice, against the hospital essentially for negligently maintaining and furnishing the instrument to Somberg without adequate inspection, and against Lawton and Reinhold for breach of implied warranty in the manufacture, inspection and testing of the instrument in question i. e., strict liability in tort. At this trial much of the testimony in the previous trial was duplicated. The transcript of the testimony of decedent Anderson was read to the jury, as was the prior testimony of Dr. Graubard, plaintiff's expert, who had died prior to the 1976 trial.

The jury could reasonably find from the evidence of Anderson, Graubard and Somberg that the imbedded metal fragment caused medical complications and required further surgical interventions, and that as a result thereof Anderson suffered significant and permanent physical and neurological injuries.

According to Marie Anderson, Anderson's widow, following the second operation to remove the metal object, Anderson dragged his foot, suffered shortness of breath and chest pains and continued to have problems until the day he died. Dr. Saul Lieb, testifying for plaintiff, stated that there was a causal relationship between the death of Anderson due to a probable myocardial infarction and the chain of events following the first operation, including the breaking of the rongeur, the subsequent surgical interventions and the pain and stress which Anderson suffered as a result thereof. He indicated that the second surgery triggered the deterioration of Anderson's cardiovascular condition. Miss Annie Hill, who met Anderson in 1972 and lived with him for 1 1/2 years before he died, testified that Anderson made no complaints regarding his feet and did not walk in a strange or unusual manner but that he did occasionally complain about back pain.

John Carroll, the chief metallurgist at United States Testing Company, testified on behalf of Lawton and was the only expert metallurgist to be produced in the case. He had examined the rongeur in question at the request of the hospital and had submitted it to various tests. He found it to be properly hardened and within the range anticipated for the composition of the instrument. In his opinion there was no evidence of faulty workmanship or inherent defects in the metal. His examination indicated there was a second crack in the proximity of the primary crack in the instrument. He stated that the second crack was not a residual from manufacture. However, in his written report, done at the time of his examination of the instrument, he indicated that it was impossible to tell when the second crack had formed; that it could have formed when the final failure occurred or could have been there before, and that if this crack was present during the final use of the instrument, it could have caused the ultimate failure of the instrument.

There is no merit to Lawton's claim that the court erred in instructing the jury with respect to the burden of proof and in stating that at least one of the defendants must be liable for Anderson's injuries. The court merely followed the law established by the opinion of the Supreme Court in this case, authored by Justice Pashman. That procedure was correct. The law of this case is that set forth in the opinion of Justice Pashman. ¹

Although there was no majority opinion in the Supreme Court, the net result of its affirmance of the Appellate Division determination was that the matter was remanded for a new trial. We are here dealing not with the precedential value of an opinion by an equally divided Supreme Court (here 3-1-3) in another case. The question before us is whether the opinion of three members of the court should be the law of this case, when the result of that opinion was a remand for a new trial and that result was concurred in by another member of the court. Under such circumstances, the opinion of the three justices which resulted in the remand and retrial represents the law of the case on the retrial. See Kaku Nagano v. Brownell, 212 F.2d 262, 264 (7 Cir. 1954); Sculthorp v. American Motors Corp., 7 Mich.App. 410, 151 N.W.2d 905 (Ct.App.1967); In re Estate of LeDuc, 5 Mich.App. 390, 146 N.W.2d 711 (Ct.App.1966). See also, Freeman v. Martin, 116 Ga.App. 237, 156 S.E.2d 511 (Ct.App.1967). Compare Higginbotham v. Higginbotham, 92 N.J.Super. 18, 22, 222 A.2d 120 and dissenting opinion at 36, 222 A.2d at 130 (App.Div.1966).

Similarly without merit is Lawton's assertion that the judge improperly instructed the jury as to its burden of proof with respect to exculpating itself from liability. Reliance is placed on an isolated portion of the charge relating to proximate cause.

The judge had instructed the jury as to the elements required to show liability for a breach of implied warranty against Lawton; and that Lawton was obligated to show by a preponderance of the evidence that it was free from such liability and had met its required burden of exculpation in that respect. Thereafter, the judge stated that, "again" to exculpate itself, the burden on Lawton was to convince the jury by a preponderance of the evidence that "the occurrence was not the proximate result * * * of Lawton's alleged breach of implied warranty." It continued by saying:

I have already instructed you as to the various legal theories of liability that have been charged by the plaintiff against the defendants in this case, and you should bear these in mind in considering each defendant's liability in order to determine whether a particular defendant has or has not, as the case may be, met his or its required burden of exculpation.

It is contended that in the charge on proximate cause the judge in effect advised the jury that Lawton was liable by reason of its having placed a defective rongeur into the stream of commerce and that its exculpation would arise only if it negatived the existence of proximate cause. The judge, it is said, failed to inform the jury that "exculpation could include negation of one of the elements of" breach of implied warranty e. g., proof that there was no defect in...