Perfetti v. McGhan Medical

• Decision Date: 03 March 1983
• Docket Number: No. 5673,5673
• Parties: , 35 UCC Rep.Serv. 1472 Lynne F. PERFETTI, Plaintiff-Appellee, v. McGHAN MEDICAL, a foreign corporation, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 646

662 P.2d 646

99 N.M. 645, 35 UCC Rep.Serv. 1472

Lynne F. PERFETTI, Plaintiff-Appellee, v. McGHAN MEDICAL, a foreign corporation, Defendant-Appellant.

No. 5673.

Court of Appeals of New Mexico.

March 3, 1983.

Certiorari Denied April 14, 1983.

[99 N.M. 647] Leland S. Sedberry, Jr., Judy A. Fry, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, for defendant-appellant.

Kenneth E. Wagner, Franchini, Henderson & Wagner, Albuquerque, for plaintiff-appellee.

OPINION

WOOD, Judge.

Plaintiff, subsequent to a subcutaneous mastectomy, had difficulty with the skin adhering to the rib cage. After evaluation by the surgeon for breast reconstruction, a decision was reached to insert a mammary prosthesis under the skin and this was done. The type of prosthesis used was a high volume double lumen; the inner envelope was filled with gel, the outer envelope was filled with saline solution. The surgeon felt that this type of prosthesis was superior to other types. Approximately 25 months after the prosthesis was implanted, the prosthesis in the left breast deflated. When the prosthesis was removed, examination revealed a split at the edge of the prosthesis "about a half inch on the front and half an inch on the back." Deflation occurred because the saline solution had leaked. The prosthesis had been manufactured by defendant. Plaintiff sued for damages; three theories of liability were submitted to the jury, which returned a verdict for plaintiff. Defendant appealed. We discuss the issues on the basis of the three theories of liability: (1) products liability, (2) express warranty, and (3) implied warranty.

Defendant contends, as to each theory of liability, that the evidence was insufficient for submission to the jury, and that its motion for a directed verdict at the close of all the evidence should have been granted. Archuleta v. Pina, 86 N.M. 94, 95, 519 P.2d 1175 (1974), states:

In ruling on a motion for a directed verdict, the trial court must view the evidence, together with all reasonable inferences deducible therefrom, in the light most favorable to the party resisting the motion, and must disregard all conflicts in the evidence unfavorable to the position of that party.

Thus, as to each theory, defendant asserts the evidence was insufficient to raise a jury issue as to its liability.

1) Products Liability

Although holding that lessors as well as sellers could be liable, Stang v. Hertz Corporation, 83 N.M. 730, 497 P.2d 732 (1972), 52 A.L.R.3d 112 (1973), approved the basis for products liability stated in Restatement (Second) of Torts Sec. 402A (1965). Section 402A states:

Special Liability of Seller of Product for Physical Harm to User or Consumer

(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. Defendant claims that plaintiff failed in her burden of proof because there was no evidence that the prosthesis was defective at the time it left the hands of the manufacturer. The requirement of "defective condition" appears in Sec. 402A; the requirement that the defect exist at the time it left defendant's hands appears in Comment g to Sec. 402A.

Defendant states: "The evidence is undisputed that the ... prosthesis was not defective at the time it was inserted in Plaintiff", referring us to the surgeon's testimony as to his inspection of the prosthesis before inserting it. The surgeon also testified:

I feel that the capsule which forms around the implant allows the implant to get a little fold in it- - - And over a period of months to years, the implant gradually wears back and forth and eventually that little fold wears through and you get a little tear.... That is the kind of thing that I've seen in almost every prosthesis which has deflated that I've seen that had a problem.... And that's what I saw in Miss Perfetti's case.

Citing V. Mueller & Co. v. Corley, 570 S.W.2d 140 (Tex.Civ.App.1978), plaintiff asserts that the jury could infer that a defect existed when it left defendant's hands because the prosthesis deflated 25 months after insertion.

These arguments are misdirected because they are concerned with the existence of a physical defect in the prosthesis when it left defendant's hand, and because no theory of physical defect was submitted to the jury.

The "defect" issue submitted to the jury was that defendant "failed to adequately warn the Plaintiff of the unreasonable risk of injury to her." Comment h to Sec. 402A states that where the seller "has reason to anticipate that danger may result from a particular use ... he may be required to give adequate warning of the danger ... and a product sold without such warning is in a defective condition." This view of a defect was followed in First Nat. Bk., Albuquerque v. Nor-Am Agr. Prod., Inc., 88 N.M. 74, 85, 537 P.2d 682 (Ct.App.1975):

Where the manufacturer has reason to anticipate danger from a particular use of his product, an adequate warning must be given. A product sold without such a warning is in a "defective condition unreasonably dangerous- - -"

Because no issue of physical defect was submitted to the jury, the failure to direct a verdict on that ground was not error; the sufficiency of the evidence as to a physical defect is a false issue. Accordingly, we do not reach the question of whether, under the evidence, it could properly be inferred that a defect existed 25 months prior to the time the defect was known to exist. See Annot., 54 A.L.R.3d 1079 at 1090 (1973); compare the "subsequent declarations" discussed in Matter of Estate of Martinez, 96 N.M. 619, 633 P.2d 727 (Ct.App.1981).

B. Defendant asserts that the prosthesis comes within the category of unavoidably unsafe products discussed in Comment k to Sec. 402A. This comment was applied in Hines v. St. Joseph's Hospital, 86 N.M. 763, 527 P.2d 1075 (Ct.App.1974). The comment applies to "products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use." The comment continues:

Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous.... The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.

There is no evidence of an improper design and no direct evidence of an improper manufacture. There is evidence that the prosthesis had a known risk of leakage, that the prosthesis was not guaranteed for long-term results by any manufacturer, and that the benefits obtainable from use of the prosthesis outweighed the risk of leakage. On this basis, defendant asserts the prosthesis came within Comment k to Sec. 402A, and that the only issue involves the "warning". Plaintiff responds that the prosthesis cannot be properly categorized as an unavoidably unsafe product.

This is another false issue. The jury was instructed on the prosthesis as an unavoidably unsafe product, see U.J.I.Civ. 14.19, N.M.S.A.1978 (1980 Repl.Pamph.), without objection from plaintiff. There is no issue in this case concerning the propriety of the instruction. Rule of Civ.Proc. 51(I), N.M.S.A.1978 (1982 Cum.Supp.).

However, even if there were an issue, the trial court properly instructed concerning unavoidably unsafe products. Comment k to Sec. 402A has been applied to intrauterine contraceptive devices. Terhune v. A.H. Robins Co., 90 Wash.2d 9, 577 P.2d 975 (1978); McKee v. Moore, 648 P.2d 21 (Okl.1982). Under the evidence, Comment k to Sec. 402A applied to the mammary prosthesis.

C. Defendant contends that (1) it fulfilled its duty to warn or, in the alternative, (2) that no warning was necessary.

1) The duty to warn, in this case, has two aspects. The first aspect is concerned with whether the prosthesis was defective. We pointed out, in 1A above, that the theory of a defect submitted to the jury was that defendant had reason to anticipate the danger (deflation) from use of the prosthesis and that a failure to give an adequate warning resulted in the product being in a defective condition. There is substantial evidence that defendant knew of the danger of deflation. The issue as to a defective product is whether the warning was "adequate". The second aspect is concerned with defendant's theory that the prosthesis was an unavoidably unsafe product. Such a product is neither defective nor unreasonably dangerous if the warning was "proper".

The parties dispute as to whom the warning was due--plaintiff or her surgeon. The evidence is uncontradicted that federal law restricted this prosthesis "to sale by or on the order of a licensed physician"; that plaintiff had no contact with defendant and received no warning from defendant. Terhune v. A.H. Robins Co., supra, states: "[A] manufacturer of a product ... which is obtainable only through the services of a physician, fulfills its duty if it warns the physician of the dangers attendant upon its use, and need not warn the patient as well." See Hines v. St. Joseph's Hospital, supra; McKee v. Moore, supra.

Defendant claims...