McKasson v. Zimmer Mfg. Co.

• Decision Date: 08 June 1973
• Docket Number: No. 72--62,72--62
• Citation: 12 Ill.App.3d 429,299 N.E.2d 38
• Parties: Richard McKASSON, Plaintiff-Appellee, v. ZIMMER MANUFACTURING COMPANY, a foreign corporation, and Zimmer-Ramsay Associates, Inc., an Illinois corporation, Defendant-Appellants.
• Court: United States Appellate Court of Illinois

Page 38

299 N.E.2d 38

12 Ill.App.3d 429

Richard McKASSON, Plaintiff-Appellee, v. ZIMMER MANUFACTURING COMPANY, a foreign corporation, and Zimmer-Ramsay Associates, Inc., an Illinois corporation, Defendant-Appellants.

No. 72--62.

Appellate Court of Illinois, Second District.

June 8, 1973.

Rehearing Denied July 26, 1973.

Lord, Bissell & Brook, Chicago, for defendant-appellants.

Maynard & Brassfield, Rockford, for plaintiff-appellee.

THOMAS J. MORAN, Justice.

This products liability action was initiated against the manufacturer and distributor of a certain surgical pin known as a Schneider intramedullary rod. Injuries were allegedly sustained due to a break in one of defendants' rods which had been implanted in plaintiff's left femur. The jury awarded plaintiff a verdict of $175,000 and defendants appeal from the judgment entered thereon.

Defendants seek reversal based upon the following averred errors: (1) absence of evidence of a manufacturing defect in the rod which could have caused it to break; (2) the trial court's refusal of an instruction on misuse, and its allowing argument by plaintiff's counsel as if misuse was not an issue; (3) the court's rejection of defendants' evidence on testing methods; (4) newspaper accounts having been read by three jurors; (5) prejudicial remarks by plaintiff's counsel during closing argument; (6) giving of an instruction regarding plaintiff's right to recover for disability and disfigurement, and argument by plaintiff's counsel for such damages; (7) testimony by plaintiff that he had a wife and three children; (8) excessiveness of the verdict; (9) the cumulative effect of errors.

The stainless steel rod in question is designed for insertion into a fractured bone to provide support and stabilization during the healing process. On October 27, 1965, plaintiff underwent surgery to repair a comminuted fracture of the left femur; a rod was employed to hold the bone fragments in proper alignment.

Plaintiff remained in a wheel chair for approximately six months after surgery, and was then permitted to place partial weight on the affected leg, first while using a single crutch and, later, a cane. In August, 1966, still using a cane, plaintiff returned to work on a part time basis. X-rays taken throughout this period, including one taken on January 25, 1967, disclosed progressive healing of the fracture (although not complete union), and showed the rod in proper position. A March 21, 1967, x-ray, however, revealed a break in the rod which, according to one of the doctors, had probably occurred several days earlier.

Plaintiff was referred to another doctor who advised additional surgical intervention to promote the healing process which had been disrupted by the breaking of the intramedullary rod. Plaintiff underwent a second surgery on the left femur on May 3, 1967. A Phemister barrel stave operation, a type of bone graft, was performed. For some time thereafter it seemed that the operation had been successful but, after about eight months, the healing process seemed to have slowed. It was determined that the bone was not mending properly, due, at least in part, to the presence of excessive scar tissue.

In July, 1968, plaintiff went under the care of a third orthopedic surgeon who performed a compression plate operation on September 20, 1968. After that operation, plaintiff was first restricted to a wheel chair, graduated to crutches, then to one crutch until April 29, 1969, when the doctor, having determined that the fracture was solidly healed, permitted plaintiff to walk without crutch support.

1. Evidence of Defect

Defendants contend that the trial court erred in failing to direct a verdict in their favor claiming there was no evidence that the break in the rod was caused by a defect in its manufacture, arguing that all of plaintiff's witnesses agreed with defendants' own expert that the rod broke as a result of fatigue failure. (Fatigue failure is the result of metal being subjected to alternate loading in excess of its endurance limit).

Plaintiff's evidence on this issue consisted of the testimony of two metallurgists and a mechanical engineer. The metallurgists' analyses revealed the presence of various imperfections in the rod, including a small crack about a quarter-inch from the break, pitting on its surface, and inclusions (foreign objects in the steel). Their testimony indicated that any of these imperfections could have existed at the time the rod left the manufacturer; that their presence could initiate a crack in the metal and create areas of stress concentration, weakening the metal so that fatigue failure would occur at a stage considerably below the ordinarily anticipated endurance level. It was the opinion of both metallurgists that, if the rod was properly designed for implant in the human body and not bent prior to use, the failure resulted from a defect which existed at the time of manufacture. The mechanical engineer took measurements of the rod and of plaintiff, ascertained weight distribution and determined stress placed upon the rod in walking and in rising from a sitting position. Given the tensile strength of the rod and its endurance limit, the rod, in his opinion, could not have fractured unless a defect existed.

Defendants' expert, qualified both in the fields of metallurgy and mechanical engineering, testified that fracture of the rod occurred as a result of fatigue failure. His extensive research in the field of implants had shown that because maximum stress occurs at the point of non-union of the bone, fatigue failure of the implant commonly occurs at that same point. It was this witness' opinion that the computations of plaintiff's expert were inaccurate because, in determining the endurance limit of the implanted rod, consideration had not been afforded the additional stresses brought by muscle pull which, in his experience, can surpass the stresses of bodily weight. He further testified that no defect existed in the rod, its failure, rather, resulting from the stress of a cyclic load over an extended period of time in the area of non-union of the bone.

The testimony, thus summarized, does show (in accordance with defendants' argument) that all experts agreed that the rod ultimately broke as the result of fatigue failure. This mutual conclusion, however, fails to obviate the disparity of opinion over the very cause of this particular fatigue failure. Plaintiff's witnesses contend that the failure was due to defect, defendants' witness, that it was due to undue stress. These opposing theories merely presented a question of fact for the jury's determination.

Under the rule of Suvada v. White Motor Co., 32 Ill.2d 612, 623, 210 N.E.2d 182 (1965), a plaintiff in a strict liability action must prove an injury resulting from an unreasonably dangerous condition of the product which existed at the time it left the manufacturer's control. Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill.2d 339, 342, 247 N.E.2d 401 (1969). Since there was sufficient evidence to substantiate the presence of defects at the time the rod was analyzed and since evidence also supported the conclusion that defects contribute to fatigue failure, the jury could infer that the defects were present at the time of manufacture and that, in the instant case, the failure occurred as a direct result. The evidence defeats defendants' contention that they were entitled to a directed verdict. See, Spotz v. Up-Right, Inc., 3 Ill.App.3d 1065, 1073, 280 N.E.2d 23 (1972); Taylor v. The Carborundum Co., 107 Ill.App.2d 12, 19--20, 246 N.E.2d 898 (1969); Sweeney v. Matthews, 94 Ill.App.2d 6, 14--16, 236 N.E.2d 439 (1968), aff'd 46 Ill.2d 64, 264 N.E.2d 170 (1970).

II. Misuse Defense

Defendants assert error in the refusal of their tendered instruction which, in relevant part, directed the jury to find for defendants if 'plaintiff failed to follow the instructions of his doctor as to the use and function of an intramedullary rod . . .'

The rule is that misuse is a valid defense to an action based upon strict liability. Williams v. Brown Mfg. Co., 45 Ill.2d 418, 425, 261 N.E.2d 305 (1970). There is also a rule that it is not error for a court to refuse an instruction when there is no evidentiary basis for that instruction. Woods v. C., B. & Q.R.R. Co., 306 Ill. 217, 221, 137 N.E. 806 (1923); Darby v. Checker Company, 6 Ill.App.3d 188, 196, 285 N.E.2d 217 (1972); Elliston v. Hunsinger, 8 Ill.App.3d 1068, 1070, 290 N.E.2d 688 (1972). In the present case, there was no evidence that the doctor ever spoke to plaintiff concerning the rod; his instructions merely directed the use of caution with respect to the degree of weight to be put on the leg, a caution which, evidence indicates, plaintiff heeded.

Having found no evidence in the record on which an instruction on misuse could have been based, it necessarily follows that there was no error in argument by plaintiff's counsel to the same effect.

III. Testing Methods

Defendants attempted to introduce evidence to establish that each rod, before leaving the factory, was subjected to a test for defects. This evidence was refused by the trial court. Defendants assert that this evidence was particularly important in light of plaintiff's evidence that a similar test was used to detect cracks in the rod after its removal from plaintiff's leg.

Defendants cite cases from other jurisdictions which allow evidence of such testing methods but, under Illinois law, such evidence is not admissible in strict liability cases. Cunningham v. MacNeal Memorial Hosp., 47 Ill.2d 443, 266 N.E.2d 897 (1970); Taylor v. The Carborundum Co., supra, 107 Ill.App.2d at pp. 25--26, 246 N.E.2d 898. The rationale of those decisions is that evidence of such testing is probative of the degree of care exercised by the manufacturer, an appropriate issue in an ordinary negligence action, but irrelevant in an action based upon the theory of strict liability.

IV. Newspaper...