Ethicon, Inc. v. Parten

• Decision Date: 26 February 1975
• Docket Number: No. 1033,1033
• Citation: 520 S.W.2d 527
• Parties: ETHICON, INC., et al., Appellants, v. Jo Ann PARTEN et vir, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 527

520 S.W.2d 527

ETHICON, INC., et al., Appellants, v. Jo Ann PARTEN et vir, Appellees.

No. 1033.

Court of Civil Appeals of Texas Houston (14th Dist.).

Feb. 26, 1975.

Rehearing Denied March 19, 1975.

Jerry V. Walker, Fulbright & Crooker, Houston, for appellants.

Ralph K. Miller and Jim Perdue, Miller, Gann & Perdue, Ralph E. Gustafson; Stafford, Patten & Gustafson, Houston, Scott Thrash and William W. McNeal, McNeal, Thrash & Williams, Alvin, for appellees.

CURTISS BROWN, Justice.

This is a products liability and medical malpractice suit.

Appellee Jo Ann Parten, joined by her husband, brought suit for damages against appellants, Ethicon, Inc. (Ethicon), Johnson & Johnson, Inc. (J & J), and Curtis Surgical Supply Company (Curtis) and against Alvin's Gulf Coast Hospital, Inc. (the Hospital), and appellee, Dr. Kenneth Chambler (Dr. Chambler). The Hospital brought a cross-action against Ethicon for indemnity. Dr. Chambler brought a cross-action against Ethicon, J & J, Curtis, and the Hospital for contribution and indemnity. Ethicon then brought a cross-action against Dr. Chambler and the Hospital for contribution and indemnity . After all parties had rested at trial, the court granted instructed verdicts for Dr. Chambler and the Hospital on all actions and cross-actions against them. The case was then submitted to a jury on special issues. The trial court entered judgment, based on the verdict, that all parties take nothing by their cross-actions and that the Partens recover their damages of $81,000, as found by the jury, from Ethicon, J & J, and Curtis, jointly and severally. The appelllants now challenge the judgment for the Partens and the instructed verdict for Dr. Chambler.

Dr. Chambler performed surgery on Mrs. Parten on November 6, 1970, at the Hospital. During surgery, a surgical needle, manufactured by Ethicon and J & J, and distributed by Curtis, broke off in her vaginal cuff and Dr. Chambler was unable to retrieve it. The needle remains in Mrs. Parten and is the cause of her physical and emotional damages for which this suit was brought. The jury made the following findings: An Ethicon needle broke off in Mrs. Parten during surgery. The needle was defective such that it was unreasonably dangerous to be used in the surgery. The defect exposed Mrs. Parten to an unreasonable risk of harm and was a producing cause of her injuries. Ethicon failed to warn Dr. Chambler of the defect, and it was reasonably foreseeable that surgeons might grasp needles in the defective area. This failure to warn exposed Mrs. Parten to an unreasonable risk of harm and was a producing cause of her injuries. Dr. Chambler did not use the needle in a manner not intended or reasonably to be foreseen by the manufacturer. The jury found the following damages: Past physical pain and mental anguish, $10,000; future physical pain and mental anguish, $30,000; past loss of earnings, $2,500; future loss of earning capacity, $15,000; past loss to Mr Parten of his wife's services $2,500; future loss to Mr. Parten of his wife's services, $10,000; past medical expenses, $1,000; future medical expenses, $10,000.

The evidence established that Ethicon manufactures several types of surgical needles to which the suture material is attached in the manufacturing process. A hole is drilled in the blunt end. The suture material is fed into the hole, and the needle is then crimped on two sides to hold the suture. This crimping creates a swaged area in the needle. Under microscopic analysis it is apparent that the metal in the swaged area is often cracked in the crimping process. This weakens the needle at that point.

During suturing, surgeons handle surgical needles with needle holders, which are very much like needle-nose pliers. Generally, the surgeon will place the holders about two-thirds of the way back from the point to push the needle into tissue. Then he will apply the holder to the point and pull the needle through. Dr. Chambler testified that in thick tissue, it is also sometimes necessary to push the needle through by applying the holder to the swaged end and using gentle pressure. He was doing just this in the present case when the needle broke off in the swaged area.

Appellants attack the liability findings on three gounds. First, they state that there was no evidence on which to submit the issues to the jury. Second, they state there was insufficient evidence to submit them. Third, they state that the court erred in entering judgment and overruling appellants' motion for new trial because the jury's findings were against the great weight of the evidence. Before considering the points, we must point out that the purported 'insufficiency' points are improper. If there is any evidence, more than a scintilla, to support it, the trial court may not refuse to submit an issue to the jury, even if there is insufficient evidence to support an affirmative finding. A directed verdict is proper only when there is no evidence to support the submission of issues. Carsey v. Bolin, 427 S.W.2d 721 (Tex.Civ.App.--Houston (14th Dist.) 1968, no writ). These points cannot, therefore, be considered. Other than on the 'intended use' and foreseeability issues, appellants did not have the burden of proof on any of the liability issues. Therefore, their proper attack should have been that the evidence was insufficient to support the jury's findings, rather than that the issues should not have been submitted. See Calvert, 'No Evidence' and 'Insufficient Evidence' Points of Error, 38 Texas L.Rev. 361 (1960); O'Connor, Appealing Jury Findings, 12 Hous.L.Rev. 65 (1974). Nevertheless, since both great weight and insufficiency points invoke our fact-finding power, we will consider the sufficiency of the evidence under appellants' points. See Gilbert v . Canter, 500 S.W.2d 557 (Tex.Civ.App.--Houston (14th Dist.) 1973, writ ref'd n.r.e.).

Texas has adopted the doctrine of products liability as outlined in the Restatement (Second) of Torts §§ 402A, 402B. Crocker v. Winthrop Laboratories, Tex., 514 S.W.2d 429 (1974); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.1967); Shamrock Fuel & Oil Sales Co. v. Tunks, 416 S.W.2d 779 (Tex.Sup.1967). Section 402A provides as follows:

(1) One 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, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

A product may be rendered defective through a defect in material or manufacture, a defect in design, or the failure to warn properly of a dangerous product characteristic. McKisson v. Sales Affiliates, Ins., Supra; Helicoid Gage Div. of Am. Chain & Cable Co. v. Howell, 511 S.W.2d 573 (Tex.Civ.App.--Houston (14th Dist.) 1974, writ pending); Pizza Inn, Inc. v. Tiffany, 454 S.W.2d 420 (Tex.Civ App.--Waco 1970, no writ); Noel, Products Defective Because of Inadequate Directions or Warnings, 23 S.W.L.J. 256 (1969). The doctrine has also been extended to by-standers as well as ultimate users or consumers. Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.Sup. 1969). To recover in a products liability case, it is necessary for a plaintiff, covered by the doctrine, to show that the product was defective in one or more of the ways mentioned above; that the defect made the product unreasonably dangerous; and that the defect was a producing cause of his or her injuries. No showing of proximate causation is required, and contributory negligence, either before or after discovery of the defect in question, does not bar recovery. Henderson v. Ford Motor Company, Tex., 519 S.W.2d 87 (1974). Defenses in a products liability case include the use of the product for an unintended purpose in a manner not foreseeable by the manufacturer. Sales, An Overview of Strict Tort Liability in Texas, 11 Hous.L.Rev. 1043, 1070 (1974). Assumption of risk may be a defense if it is shown that: (1) the plaintiff voluntarily exposed himself to the risk; (2) with knowledge and appreciation of the danger involved; (3) by means of a free and intelligent choice. Henderson v. Ford Motor Company, Supra.

After reviewing the evidence in accordance with the proper standards, See Calvert, 'No Evidence' and 'Insufficient Evidence' Points of Error, Supra, we have determined that there was sufficient evidence to support the jury's findings on defect in manufacture. We do not, therefore, need to pass on the issues dealing with failure to warn. Appellees' expert witness, Mr. Anderson, testified in response to a hypothetical based on facts of evidence, that the needle failed 'because of the severely defective manufacture (sic) and the crimping operation where the suturing thread was inserted and the criming caused the needle to become cracked, almost to the point of...