Kaplon v. Howmedica, Inc.

• Decision Date: 13 May 1996
• Docket Number: No. 95-2511,95-2511
• Citation: 83 F.3d 263
• Parties: Prod.Liab.Rep. (CCH) P 14,610 Tennie KAPLON, Plaintiff/Appellee, Leo KAPLON, Plaintiff, v. HOWMEDICA, INC., Defendant/Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 263

83 F.3d 263

Prod.Liab.Rep. (CCH) P 14,610

Tennie KAPLON, Plaintiff/Appellee, Leo KAPLON, Plaintiff, v. HOWMEDICA, INC., Defendant/Appellant.

No. 95-2511.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 10, 1996.

Decided May 13, 1996.

Appeal from the United States District Court for the Eastern District of Arkansas; Henry Woods, Judge.

Allen C. Dobson, Little Rock, Arkansas, argued (M. Stephen Bingham and Abraham W. Bogoslavsky, Little Rock, Arkansas, on the brief), for Defendant/Appellant.

John M. Belew, Batesville, Arkansas, argued (Stephen Bilheimer, Little Rock, Arkansas, on the brief), for Plaintiff/Appellee.

Before WOLLMAN, CAMPBELL, ^* and MURPHY, Circuit Judges.

WOLLMAN, Circuit Judge.

In this diversity action, Howmedica, Inc. (Howmedica) appeals the district court's denial of its motion for judgment as a matter of law (JAML) or, in the alternative for a new trial or remittitur of the jury award in favor of Tennie Kaplon on her strict products liability claim. We reverse.

I.

On December 17, 1991, Kaplon fell and fractured her right femur. Kaplon had previously had a tumor in the area where the fracture occurred, which had been treated with radiation therapy. Dr. John Lytle performed surgery on Kaplon to insert a Grosse-Kempf nail (G-K nail), described as an intramedullary nail, in the core of her femur, which was to serve as an internal splint to hold the femur in line until it healed. Following Dr. Lytle's advice, Kaplon continued to decrease the external support she was using to walk, thus increasing the weight bearing on her femur and on the nail.

X-rays taken on July 19, 1992, showed that the nail was cracking. Dr. Lytle did not make plans to remove the nail at that time, and he did not limit Kaplon's weight-bearing. In October 1992, Kaplon returned to Dr. Lytle because her leg was more painful. X-rays showed that the G-K nail had broken in an area below the break in the femur. She was told to stay off her feet for five or six weeks. Dr. Lytle still made no plans to remove the nail.

On November 16, 1992, Kaplon consulted with Dr. Bud Dickson concerning the pain in her femur. In January 1993, Dr. Dickson performed surgery on Kaplon, removing the broken components of the G-K nail and inserting a larger Alta nail. In August 1993, the pain in Kaplon's leg worsened, and it felt as though her leg was shortening. Dr. Dickson determined that Kaplon had a new spiral fracture, and on November 16, 1993, he performed additional surgery to place plates and strut grafts on Kaplon's femur.

Dr. Lytle and Dr. Dickson both testified that Kaplon's leg did not heal normally because the bone in the area of the break was pathologic and did not have the healing characteristics of normal bone because of Kaplon's previous radiation treatments. The doctors explained that Kaplon had a non-union, which is a fracture that has not united or healed and still has movement after the time it is normally expected to have healed. The doctors explained that in the normal healing process, the forces exerted on the implant are transferred to the bone as the bone heals. Dr. Lytle testified that an intramedullary nail is not a prosthesis in the strictest sense of that term because it is designed to hold fractures in line rather than to bear the weight of the bones.

Kaplon filed this action against Howmedica, the manufacturer of the G-K nail, alleging breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, negligent failure to warn, and strict liability. Kaplon voluntarily dismissed her warranty claims and proceeded to trial on the remaining claims. At the close of Kaplon's case, Howmedica moved for JAML on the negligent failure to warn and strict liability claims. The district court granted the motion as to the negligent failure to warn claim, but denied the motion as to the strict liability claim. The district court also denied Howmedica's renewed motion at the close of the evidence. The jury returned a verdict on the strict liability claim in favor of Kaplon in the amount of $300,000. The court denied Howmedica's post-trial motions for JAML, new trial, and remittitur.

Howmedica argues on appeal that: (1) the district court erred in denying its motion for JAML on the strict liability claim, in that Kaplon failed to prove that the broken G-K nail was defective or unreasonably dangerous under Arkansas law or that it proximately caused Kaplon's injuries; and (2) the district court failed to submit jury instructions that accurately reflected Arkansas law.

II.

We review the denial of a motion for JAML de novo, applying the same standard used by the district court. Rockport Pharmacy, Inc. v. Digital Simplistics, Inc., 53 F.3d 195, 197 (8th Cir.1995). This standard requires us to resolve all conflicts in favor of Kaplon, giving her the benefit of all reasonable inferences and assuming as true all facts supporting her which the evidence tended to prove. See Sherlock v. Quality Control Equip. Co., 79 F.3d 731, 735 (8th Cir.1996) (quoting Grand Labs., Inc. v. Midcon Labs., 32 F.3d 1277, 1280 (8th Cir.1994)). We will affirm the denial of the motion if a reasonable jury could differ as to the conclusions that could be drawn. Id. at 735. We will not set aside a jury's verdict lightly, and we will not weigh, evaluate, or consider the credibility of the evidence. Fox v. T-H Continental Ltd. Partnership, 78 F.3d 409, 413 (8th Cir.1996).

We first reject Kaplon's claim that Howmedica did not adequately raise in its motion for JAML the issues it argues on appeal. Howmedica argued the issues in its motion for summary judgment and raised the same issues again in its motions at trial. Howmedica's motion for JAML addressed the proximate cause issue expressly in the context of arguing that the jury award was excessive. We find this was sufficient. See Rockport Pharmacy, 53 F.3d at 197-98 (technical precision not necessary in motion for JAML if trial court is aware of movant's position).

Arkansas law applies in this diversity case, and we review the district court's interpretation of that law de novo. See Rockport Pharmacy, 53 F.3d at 197 (citing Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991)). To state a claim against Howmedica for strict liability under Arkansas law, Kaplon must prove that: (1) Howmedica is engaged in the business of selling the G-K nail; (2) the G-K nail was supplied in a defective condition which rendered it unreasonably dangerous; and (3) the defective condition was a proximate cause of the harm. See Ark.Code Ann. § 4-86-102(a) (Repl.1991); Williams v. Smart Chevrolet Co., 292 Ark. 376, 730 S.W.2d 479, 482 (1987). We find that Kaplon did not offer evidence to prove either the second or the third element of a strict liability claim.

Kaplon acknowledges that she relied on circumstantial evidence to show that a defect existed in the G-K nail. When relying on circumstantial evidence to prove that a defect existed, the plaintiff must negate all other possible causes of product failure for which the defendant would not be responsible. Campbell Soup Co. v. Gates, 319 Ark. 54, 889 S.W.2d 750, 753 (1994). Howmedica argues that Kaplon did not negate all other possible causes, as Kaplon's pathologic bone is what caused the G-K nail to break. Kaplon, however, argues that because some doctors will wait twelve months before declaring a non-union, the nail was defective because it broke at seven months. Thus, argues Kaplon, the nail was defective regardless of her abnormal bone.

There was no...