Larsen v. Pacesetter Systems, Inc.
| Decision Date | 30 September 1992 |
| Docket Number | No. 15106,15106 |
| Citation | 74 Haw. 1,837 P.2d 1273 |
| Parties | , 61 USLW 2230, 20 UCC Rep.Serv.2d 877, Prod.Liab.Rep. (CCH) P 13,406 David W. LARSEN and Shirley Larsen, Plaintiffs-Appellees/Cross-Appellants, v. PACESETTER SYSTEMS, INC., a California Corporation, Defendant-Appellant/Cross-Appellee, and Siemens- Pacesetter, Inc., a California Corporation, Defendant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Four year statute of limitations under Hawaii's Uniform Commercial Code applies to plaintiff's implied warranty of merchantability claim for personal injury. Hawaii Revised Statutes (HRS) §§ 490:2-318, 490:2-725, 490:10-103.1.
2. Administrative regulations on a matter entrusted by Congress to agency discretion may have preemptive effect equal to Federal statutes unless inconsistent with clearly expressed Congressional intent.
3. Implied warranty claim for personal injuries caused by defective design of pacemaker subject to FDA premarket review as a Class III device "substantially equivalent" to others on the market, was not preempted by the Medical Device Amendments where no specific statutory or regulatory provisions were applicable to the device. 21 U.S.C. § 360k, 21 C.F.R. § 808.1(b).
4. Where court's denial of summary judgment was based solely on question of law, defendant was entitled to review of summary judgment.
5. To bring implied warranty of merchantability action for personal injury, plaintiff was required to show product unmerchantability sufficient to avoid summary judgment on the issue of defectiveness in a tort strict products liability suit.
6. Where defectiveness of plaintiff's pacemaker was not self-evident, it was appropriate for court to decide the issue of defectiveness guided by precedent and policy.
7. Defendant's pacemaker could be made safer for its intended and ordinary use and was not an unavoidably unsafe product within the meaning of comment k of the Restatement (Second) of Torts § 402A.
8. Although plaintiff's pacemaker did not malfunction, it was in a defective condition sufficient to support an action for breach of the implied warranty of merchantability. HRS § 490:2-318.
9. Action based on fraud will not lie where plaintiff has suffered no injury or damage.
10. Complaint failed to plead fraud with particularity where it did not allege "fraud" and failed to mention plaintiff's reliance. Hawaii Rules of Civil Procedure (HRCP) Rule 9(b).
11. Where fraud was not adequately pleaded, denial of plaintiff's motion to amend his complaint was not an abuse of discretion where trial court found defendant would be unfairly prejudiced by lack of notice. HRCP Rule 9(b).
12. Defendant failed to rebut presumption that warranty limiting personal injury damages was unconscionable where defendant's privity argument was contrary to plain language of statute. HRS §§ 490:2-719, 490:2-318.
13. Pure comparative negligence applies to implied warranty actions for personal injury.
14. Assumption of risk that is a form of contributory negligence is merged with comparative negligence and reduces rather than bars plaintiff's recovery. Express assumption of risk as a complete bar to liability, survives merger of products liability and comparative negligence. Implied assumption of risk is a defense in tort and warranty strict products liability actions only when assumption of risk is a form of contributory negligence.
15. Instructions on assumption of risk were properly refused where they incorrectly stated the applicable law.
16. A plaintiff may recover for mental distress in tort and implied warranty strict products liability actions. HRS § 490:2-318.
17. Where injury is subjective rather than objective in nature, expert testimony is necessary to show future pain and suffering.
18. Objective injuries manifest themselves in a form observable to persons other than plaintiff and injuries objective in character are those from which it is plainly apparent that the harm is permanent or that plaintiff will experience future pain and suffering.
19. Injuries subjective in character are those from which a layman cannot with reasonable certainty infer future pain and suffering.
20. Where plaintiff's injuries were not objective in character, plaintiff introduced sufficient evidence to allow jury to find future pain and suffering with reasonable probability.
21. A timely objection brings the matter complained of to the attention of the court for an appropriate ruling, warns the adverse party, and preserves the particular issue on appeal.
22. In order to appeal the competence of the expert witnesses whose testimony was necessary to establish a reasonable probability of future pain and suffering, defendant could not merely allege error in a motion for judgment notwithstanding the verdict or a new trial, and was required to object to witnesses' competence at trial. Hawaii Rules of Evidence (HRE) Rule 103.
23. General rule is that interest on damages is not recoverable unless specifically authorized by statute.
24. Court's ruling imposing 10% postjudgment interest on prejudgment interest would contravene statute limiting interest to 10%. HRS § 478-3.
25. Court's calculation and award of prejudgment interest at judgment rather than satisfaction was not authorized by court decision and statute allowing prejudgment interest, which were themselves controlled by statute limiting interest to 10%. HRS § 636-16.
26. Action in assumpsit relates to a promise or engagement, whereas an action in tort rests on the violation of duty arising by operation of law rather than mere agreement of the parties.
27. Rule in this country is that in the absence of contract or statute a litigant has no inherent right to have attorney's fees paid by his opponent.
28. Plaintiff could not recover where promissory elements of claim might sound in tort or contract, and plaintiff's injuries were those traditionally protected in tort. HRS § 607-14.
Martin Anderson (Mark B. Desmarais and Mark E. Recktenwald, with him on the briefs of Goodsill, Anderson, Quinn & Stifel), Honolulu, for plaintiffs-appellees/cross-appellants David W. Larsen and Shirley Larsen.
Ronald G. Rolnick (Nelson S.W. Chang, on the briefs of Bybee, Chang & Rulon, Honolulu) of Sandler, Rolnick & Morse, Los Angeles, Cal., for defendant-appellant/cross-appellee Pacesetter Systems, Inc.
Before LUM, C.J., WAKATSUKI, * MOON and LEVINSON, JJ., and Intermediate Court of Appeals Chief Judge BURNS, in place of Klein, J., Recused.
This is an appeal and cross-appeal from a jury verdict in favor of plaintiffs David W. Larsen and Shirley Larsen on their breach of implied warranty claim against defendant Pacesetter Systems, Inc. (Pacesetter). Mr. Larsen was implanted with a Programalith III Series Model 241-6 pacemaker, one of a group of devices later recalled because of their potential to malfunction at temperatures slightly above normal body temperature. The jury awarded Mr. Larsen damages for injuries resulting from the removal and replacement of the device, and awarded Mrs. Larsen damages for emotional distress and loss of consortium. Pacesetter's primary contention on appeal is that there was no basis for liability since the pacemaker removed from Mr. Larsen did not malfunction and was not defective. Pacesetter also maintains that the action should have been dismissed because pacemakers are unavoidably unsafe products within the meaning of comment k to Restatement (Second) of Torts § 402A. Pacesetter's other claims on appeal include the assertion that the suit was precluded by the statute of limitations for personal injury actions and preempted by Federal law. In addition, Pacesetter argues that the trial court should not have excluded evidence of its limited warranty, the jury should have been instructed on the defense of assumption of the risk, Mr. Larsen produced insufficient evidence of his future pain and suffering to allow instruction on these damages, Mrs. Larsen was not entitled to recover mental distress damages in an implied warranty action, and the court exceeded statutory limits when it imposed postjudgment interest on prejudgment interest.
Of the issues raised by the Larsens in their cross-appeal, we address those not rendered moot by our disposition of Pacesetter's appeal. The Larsens allege that their claim for punitive damages, based on Pacesetter's bad faith conduct during settlement negotiations, should not have been dismissed. In addition, they argue that the trial court erred in ruling that their complaint did not adequately state a claim of fraud and in rejecting their motion to amend their complaint to include fraud. Finally, the Larsens maintain that they were entitled to attorney's fees because their implied warranty claim was an action "in the nature of assumpsit."
We vacate the trial court's award of postjudgment interest on prejudgment interest and remand for proceedings consistent with this opinion. In all other respects, the judgment of the trial court is affirmed.
David Larsen (plaintiff) was sixty-five years of age when he began experiencing episodes of lightheadedness and dizziness. He was diagnosed as having "sick sinus syndrome," a condition in which his heartbeat would occasionally decrease from a rate of sixty or seventy beats to as low as twenty beats per minute. Plaintiff's physician recommended that he install a pacemaker manufactured by defendant Pacesetter. Plaintiff was told by his physician that the pacemaker was a trouble-free device and that it would be seven years before the battery inside the pacemaker would have to be replaced. Pacesetter's Physician Manual recommended replacement after nine and a half years.
The surgery to implant the pacemaker was a success, and plaintiff was soon able to resume his normal activities. However, unbeknownst to plaintiff and his physicians, three...
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