Picker X-Ray Corporation v. Frerker

• Decision Date: 30 January 1969
• Docket Number: No. 19010.,19010.
• Citation: 405 F.2d 916
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: PICKER X-RAY CORPORATION, Appellant, v. Helena FRERKER and Helena Frerker, Executrix of Last Will of Leo B. Frerker, Deceased, Appellees.

405 F.2d 916 (1969)

PICKER X-RAY CORPORATION, Appellant, v. Helena FRERKER and Helena Frerker, Executrix of Last Will of Leo B. Frerker, Deceased, Appellees.

No. 19010.

United States Court of Appeals Eighth Circuit.

January 30, 1969.

Morton K. Lange, of Robertson, DeVoto & Wieland, St. Louis, Mo., for appellant; L. A. Robertson, on the brief.

Rexford H. Caruthers, St. Louis, Mo., for appellees.

Before VAN OOSTERHOUT, Chief Judge, BLACKMUN, Circuit Judge, and VAN PELT, District Judge.

VAN PELT, District Judge.

This is an action for damages, which was originally filed in the state courts of St. Louis and was thereafter removed to the United States District Court for the Eastern District of Missouri. Diversity jurisdiction exists.

The action arises from a medical procedure on Helena Frerker, one of the plaintiffs, in which a Kifa guide wire was inserted into her body. When the guide wire was removed it was found that the tip had broken off. A subsequent surgical operation to remove the tip was necessary. Expense and damage resulted. The original plaintiffs were Mrs. Frerker and her husband. He died prior to trial and Mrs. Frerker as executrix was substituted as a party plaintiff in his stead.

Defendant is a St. Louis wholesaler and distributor of such guide wires. Plaintiffs claim that the defendant furnished Washington University, whose personnel conducted the medical procedure, the wire which was used. The complaint charged breach of an implied warranty of fitness and reasonable safety of such a wire.

The case was tried to a jury and verdicts were returned for each plaintiff.

The errors assigned relate to the insufficiency of the evidence; error in instructions; error in the receipt of two exhibits; and the claim that the verdict was the result of passion and prejudice.

A detailed statement of the evidence is unnecessary. It will be limited to the facts relevant to the discussed errors.

Mrs. Frerker entered Barnes Hospital in St. Louis for a radiological procedure. Personnel of Mallinckrodt Institute of Radiology at Washington University, St. Louis, conducted these procedures. On May 6, 1965, Dr. Koehler, a radiologist, who was in charge of the section of abdominal roentgenology for the Institute, performed a Graham dye test or a venogram on Mrs. Frerker. In the course of the procedure a catheter is advanced by means of the guide wire into the location desired in the vessel. When the catheter is in position, the guide wire is then removed. In the procedure on plaintiff a part of the guide wire, described as the flexible tip, broke off and remained in plaintiff. This was discovered when the guide wire was withdrawn.

Dr. Koehler concluded to complete the test and did so. Mrs. Frerker was then removed to St. John's Hospital in St. Louis where the same day by surgery this tip was removed.

The guide wire used in the procedure on plaintiff was known to the radiologists as a "large one." Depending on where it was measured, its outside diameter was from .0526 to .0527 of an inch. The tolerance of Kifa wires was from 52 to 54½. Converted to inches, this meant a diameter of from 52 thousandths to 54.5 thousandths. Thus the wire used on Mrs. Frerker fell within this tolerance.

Exhibits 3A and 3B were the pieces of guide wire used in Mrs. Frerker's procedure. According to Dr. Koehler they were of the same type and same caliber as a genuine Kifa wire which was in evidence as Exhibit 5. He testified that with the size of the needle used on Mrs. Frerker's body he only used Kifa guide wire and testified to the conclusion that the tip of the Kifa guide wire broke off and lodged in her vein. He further stated that he never used any other type of guide wire in the period through May 6, 1965 than a Kifa guide wire.

The record shows that between March 19, 1963 and April 23, 1963 the University purchased one B & D guide wire manufactured by Becton-Dickinson of the size .054. From Exhibit H it could be concluded, as urged by plaintiff, that this wire was purchased for the use of Dr. Marrin Friedenberg. The small Becton-Dickinson wires had an outside diameter of .036. Dr. Koehler thought that the Institute had on hand in the part where he worked on May 5 and 6 only the large Kifa wires and the small B & D wires.

It seems certain that guide wires were used more than once by the examining physician. Defendant claims that during the period of the purchase of the not to exceed 32 Kifa wires from it that based on the number of examinations testified to by Dr. Koehler guide wires would have been used on from 660 to 990 occasions.

The record contains evidence of the purchase of not to exceed 32 Kifa wires from the defendant during a period of several months prior to May, 1965. It also appears that 18 of these were returned for a reason not shown. There is no evidence from which it could be inferred if the wire was a Kifa wire that it was purchased from anyone other than the defendant.

Each guide wire is delivered in a separate envelope. The envelope shows the make of the wire. Dr. Koehler testified that he didn't have anything to do with removing the wires from the package or the marking of the cloths before they were sterilized. He testified that the wire is removed from the original package before it is sterilized and that it is wrapped in a towel, labeled, and then put in a sterilizer, and thereafter sent up to his department for use. He testified that they can keep them sterile a couple of days so that they always have a supply of them on hand. The guide wires are left in the sterilized cloth until the last minute before use. After removal from the cloth there is no means of identification of the wire used. Dr. Koehler testified that the wire which broke in Mrs. Frerker's body appeared "new, or almost new" and "this wire didn't have any bends."

In addition to this evidence, there was received in evidence three exhibits dealing with the incident, being Exhibits 8, 8A and 12, hereafter discussed in greater detail.

The foregoing, when read with the three exhibits mentioned, is the substance of the testimony as it related to whether a Kifa wire was used in the procedure on Mrs. Frerker and whether the wire used was purchased from defendant. If the wire used was a Kifa, then it is a reasonable deduction that it was sold by defendant. There is no evidence of the purchase of Kifa wires during this period from any other supplier. The burden of establishing that it was a wire purchased from defendant, was on plaintiff. It is defendant's claim that this evidence is insufficient. Because of our ruling upon Exhibits 8A and 12, we do not need to reach this claim which is affected by whether the contents of these two exhibits can be considered.

Likewise, we do not need to pass on the claimed error that the court omitted in its charge as an essential element of plaintiff's case to be proven by a preponderance of the evidence that the guide wire was defective when it left defendant's control. It is clear that this was an essential allegation. If the case is retried, this can be corrected. Doubtless a charge is clearer to laymen if all essential allegations to be proven by a plaintiff or by a defendant are set forth in consecutive order. We are not saying that reading the charge as a whole the jury was misled as to this issue or that it was not later included in another part of the charge, but believe that it is a claimed error that need not arise on a retrial.

We should observe that counsel are not in dispute as to the law of implied warranty applicable to the case. It is basic that there is an implied warranty of fitness for the purpose for which the wire was offered for sale and an implied warranty of quality. While most of the reported cases for breach of the implied warranty are against the manufacturer, a distributor or supplier is liable as well for breach of an implied warranty.

Privity is no longer required in most jurisdictions and is not required in Missouri. We hold here that plaintiff, a patient, has a right to rely on the implied warranty of fitness and that she and her husband, if damaged, can recover for a breach of such a warranty. A case closely in point is Bowles v. Zimmer Manufacturing Co., 277 F.2d 868, 76 A. L.R.2d 120 (7 Cir. 1960). It involved a defective intermedullary pin inserted in the narrow cavity of the plaintiff's femur. One count was based upon "an implied warranty as to the fitness of the pin for the purpose for which it was sold and used." The court said, following a discussion of the issue of privity:

"We hold that plaintiff has a right to rely upon an implied warranty of fitness in this case." (875)

We turn to the claim of error in admitting in evidence Exhibits 8A and 12. It is claimed not only that the receipt in evidence of each of these exhibits was error, but it is claimed additionally that the trial court's remark that "defendant will have an opportunity if he so desires to subpoena any of the witnesses down here" made in the jury's presence, helped to bring about a verdict which was the result of passion and prejudice.

At least one of the persons mentioned in Exhibit 12 was beyond the subpoena power of the court. The court's remark was thus factually incorrect. We do not reach the question of whether the remark contributed to the passion and prejudice which defendant claims produced a verdict of the size of this verdict for the limited injuries sustained.

Exhibit 8 was an incident report made by Dr. Koehler following the procedure on Mrs. Frerker. It was prepared following the incident. It was received in evidence without objection.

It reads:

MALLINCKRODT INSTITUTE INCIDENT REPORT

DATE May 6, 1965 NAME HELENA FRERKER ORIGIN OUTPATIENT ADDRESS 910 11th Street CITY Carlyle STATE Illinois TIME OF INCIDENT 9:00-10:00 AM PLACE OF INCIDENT Special Procedure Room Third Floor Radiology

DESCRIPTION OF ACCIDENT (by injured person or witness): During placement of TSP-45 Teflon...