Budding v Ssm Healthcare System et. al.
| Decision Date | 14 September 1999 |
| Docket Number | ED74455 |
| Parties | This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Denise Budding, Plaintiff/Appellant, v. SSM Healthcare System, et al., Defendants/Respondents. Case Number: 74455 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of the City of St. Louis, Hon. David C. Mason
Counsel for Appellant: Jeffrey J. Lowe and Nancy R. Richards
Counsel for Respondent: Kenneth W. Bean, Thomas J. Smith and Carl J. Geraci
Opinion Summary: Plaintiff Denise Budding appeals the judgment entered on the jury's verdict in favor of the hospital. Budding alleged the Hospital was liable for injuries attributable to defectively designed teflon implants for her jaw that were inserted at the hospital's St. Mary's Health Center in 1984.
REVERSED AND REMANDED.
Division Two holds: The trial court erred in refusing Budding's proffered verdict directing instruction. Substitution of the word "transferred" for the word "sold" as permitted in the notes on use for MAI 25.04 would have properly instructed the jury as to the first element of her claim based on strict liability in tort. She was not required to prove that the hospital made a separate charge for the implants. By transferring the implants in the ordinary course of its business, the hospital could properly be held to have placed the defective products in the stream of commerce.
Opinion Author: PER CURIAM
Opinion Vote: REVERSED AND REMANDED. Crahan, P.J., filed separate concurring opinion.
Denise Budding ("Plaintiff") appeals the judgment entered in accordance with the jury's verdict in favor of SSM Healthcare System ("Hospital").1 Plaintiff alleged Hospital was liable for injuries attributable to defectively designed Vitek2 proplast teflon temporomandibular joint (TMJ) implants which were inserted at Hospital's St. Mary's Health Center in 1984. We reverse and remand for a new trial due to instructional error.
When Plaintiff was a teenager, she began to experience pain in her jaws, which gradually worsened to the point that she experienced headaches and loss of appetite. In 1983, Dr. Kenneth Rotskoff diagnosed TMJ disease. In 1984, due to the severity of the disease, Dr. Rotskoff scheduled Plaintiff for surgery. Dr. Rotskoff intended to either rebuild the temporomandibular joint or place an implant. When he surgically opened her jaw, he determined that he could not rebuild the existing joint due to the extent of the disease. At that point, he made the decision to insert the Vitek teflon implants, which he obtained from an inventory of implants ordered and stocked by Hospital at his request. Dr. Rotskoff decided which implants to use, sized and fitted the implants, and then surgically inserted them.
Following the operation, Plaintiff's symptoms significantly improved. She returned to work and remained virtually asymptomatic for six years. In 1990, Plaintiff again began experiencing pain in her jaw. She returned to Dr. Rotskoff, who ordered x-rays. During this visit, Dr. Rotskoff told Plaintiff that he had learned that teflon implants could cause a giant cell foreign body reaction which could lead to formation of a tumor and destruction of adjacent bone. Dr. Rotskoff recommended that the implants be surgically removed. Plaintiff declined. In March 1991, Dr. Rotskoff sent Plaintiff a letter concerning the Vitek implants as well as an FDA safety alert warning about potential problems with the implants and recommending repeat x-ray examinations and possible removal of the implants if problems developed.
In early 1993, Plaintiff obtained a second opinion which agreed with Dr. Rotskoff's recommendation that the implants be removed. Plaintiff decided to undergo surgery to remove the implants in April 1993. During the surgery, Dr. Rotskoff found a giant cell tumor as he was dissecting off the right implant, which had become affixed to part of the floor of the skull. During removal of the implant, part of the base of the skull came off, leaving a hole in the floor of the temporomandibular joint going into the base of the skull. A neurosurgeon was called to assist in closing the hole in the cranial cavity. Dr. Rotskoff testified that the hole was caused by a giant cell foreign body reaction.
After the surgery, Plaintiff complained of facial nerve weakness and numbness, severe pain, pain in her bite joint, and seizure-type activity. Plaintiff also complained of pain in the side of her head, heat on the side of her face and decreased hearing.
Due to the complications of the first surgery, Dr. Rotskoff was unable to remove both implants during one surgery as planned. Three weeks later, Dr. Rotskoff performed a second surgery and removed the left implant without any additional complications.
Plaintiff filed suit against Hospital in October 1995 seeking to hold Hospital strictly liable for what she alleged were defects in the teflon implants. Plaintiff's theory at trial was that the teflon implants were defectively designed because teflon is an unsuitable material for use in a joint. Specifically, Plaintiff's expert, Dr. Eppley, testified that teflon, when subjected to the force and frequency of normal biting activity, tends to wear and fragment in three years or less. According to Dr. Eppley, once teflon is broken up and fragmented, it is one of the most bioreactive materials in the world. This, in turn, triggers the giant cell foreign body reaction that can, in turn, destroy surrounding tissue and bone. In Dr. Eppley's opinion, this is what occurred in Plaintiff's case.
As indicated at the outset, the jury rendered a verdict in favor of Hospital and the trial court entered judgment accordingly. On appeal, Plaintiff raises six points of error, two complain of instructional error and four pertain to various evidentiary rulings. We find Plaintiff's first point to be dispositive.
In her first point, Plaintiff claims the trial court erred in refusing her proffered jury Instructions "A" and "B" and requiring Plaintiff to use MAI 25.04 unmodified, thereby requiring the jury to find that Hospital "sold" the implants to Plaintiff.
The verdict director given by the Court was as follows:
Instruction Number 6
Your verdict must be for plaintiff Denise Budding if you believe:
First, defendant St. Mary's Health Center sold the Vitek proplast teflon implants in the course of defendant's business, and
Second, the Vitek proplast teflon implants were then in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and
Third, the Vitek proplast teflon implants were used in a manner reasonably anticipated, and
Fourth, plaintiff was damaged as a direct result of such defective condition as existed when the Vitek proplast teflon implants were sold.
Plaintiff proffered to the court two alternatives to Instruction number six. Instruction "A" was identical to Instruction number six except that it omitted the first paragraph requiring a finding that Hospital "sold" the implants in the course of its business. Plaintiff pointed out to the court that the notes on use to MAI 25.04, which was the source for Instruction number six, specifically provide that the term "sold" should be modified to cover other situations such as a commercial lease where strict liability is applicable. Plaintiff urged that under Mulligan v. Truman Medical Center, 950 S.W.2d 576, 582 (Mo. App. 1997), she was not required to prove a sale, only that Hospital had placed the defective product in the stream of commerce. Plaintiff argued that use of the term "sold" would be misleading to the jury because, although Dr. Rotskoff testified that he obtained the implant from Hospital's inventory and Hospital conceded that it maintained such an inventory and customarily charged patients for implants, Hospital was unable to produce a bill containing a specific charge for these implants. Thus, Plaintiff urged, use of the term "sold" in Instruction number six could lead the jury to believe it should return a verdict for Hospital if it did not believe Hospital rendered a separately stated charge for the implants. Inasmuch as it was undisputed that Hospital did render a bill for the surgical services it provided, Plaintiff proposed that the first paragraph could properly be omitted. Alternatively, Plaintiff proposed Instruction "B," which was identical to Instruction number six except it substituted the term "transferred" for the term "sold."
Although the trial court agreed with Plaintiff that use of the term "sold" could be misleading, it refused Plaintiff's proposed Instructions "A" and "B." Instead, relying on language from Bailey v. Innovative Management Inv., Inc., 916 S.W. 2d 805, 807-08 (Mo. App. 1995), the trial court proposed that the first paragraph of the instruction be modified to require a finding that Hospital "sold the Vitek proplast implant for the personal profit or other benefit of Defendant's business." Plaintiff declined this proposal on the ground that the language of Instruction number six as ultimately given would be less confusing to the jury.
On appeal, Plaintiff again urges the trial court erred in refusing her proffered Instructions "A" and "B" because strict liability attaches not only based on a "sale" of the product but also by reason of a transfer of the product in the ordinary course of business. We find no error in the trial court's refusal of Instruction "A." Hospital did not concede that it provided these specific implants although the evidence tended to show that Hospital was the likely source. We agree, however, that the trial court erred in refusing Instruction "B."
In Bell v. Poplar Bluff Physicians Group, Inc., 879 S.W. 2d 618, 619 (Mo. App. 1994), a case which also involved the issue of a hospital's strict liability for TMJ implants, the court observed, ...
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