Piper v. Bear Medical Systems, Inc.

• Citation: 883 P.2d 407,180 Ariz. 170
• Decision Date: 18 November 1993
• Docket Number: No. 1,CA-CV,1
• Parties: , Prod.Liab.Rep. (CCH) P 13,766 Fred PIPER, individually and as the Personal Representative of the Estate of Ila M. Piper, Plaintiff-Appellee, v. BEAR MEDICAL SYSTEMS, INC., Defendant-Appellant. 91-0457.
• Court: Court of Appeals of Arizona

Page 407

883 P.2d 407

180 Ariz. 170, Prod.Liab.Rep. (CCH) P 13,766

Fred PIPER, individually and as the Personal Representative of the Estate of Ila M. Piper, Plaintiff-Appellee, v. BEAR MEDICAL SYSTEMS, INC., Defendant-Appellant.

No. 1 CA-CV 91-0457.

Court of Appeals of Arizona Division 1, Department E.

Nov. 18, 1993.

Review Denied Nov. 1, 1994.

[180 Ariz. 172] Mangum, Wall, Stoops & Warden by Daniel J. Stoops, Flagstaff, for defendant-appellant.

Meyer, Vucichevich & Burns by Rad L. Vucichevich, Annette T. Burns and Bonn, Luscher, Padden & Wilkins, Chartered by Randall D. Wilkins, Phoenix, for plaintiff-appellee.

OPINION

VOSS, Presiding Judge.

Bear Medical Systems, Inc. ("Bear") appeals from the judgment following a jury trial in a products liability action brought by Fred Piper, individually and as personal representative of the estate of Ila Piper. We hold in this opinion that reasonably foreseeable modifications of a product will not bar recovery against the manufacturer. However, the manufacturer's conduct in this case was insufficient to justify a punitive damages instruction. We affirm the trial court's denial of a directed verdict and judgment notwithstanding the verdict ("JNOV") for the manufacturer but reverse the punitive damages award.

FACTS

After undergoing surgery at Marcus J. Lawrence Memorial Hospital for the removal of two malignant lung tumors, Ila Piper developed adult respiratory distress syndrome ("ARDS"). She was placed on the Bear 2 Adult Volume Ventilator ("Bear 2") to assist her breathing.

An expiratory arm is attached to the Bear 2. The expiratory arm begins with an exhalation valve and a water collection trap. The water trap is connected to a flow tube with a mounted flow sensor to measure the volume of exhaled gas. Attached to the end of the flow tube is a one-way check valve which permits air flow in only one direction. The check valve, manufactured by Bird Products Corporation, prevents the patient from inhaling through the expiratory arm, ensuring that any gas going into the patient comes from the sterile ventilator. The component parts of the Bear 2 expiratory arm are diametrically indexed; this means the parts cannot be reversed, superimposed, or placed in a configuration other than the intended sequence unless other components are added.

Here, a respiratory therapist at the hospital used a rubber universal adaptor, manufactured by Bear, to connect a bacterial filter to the flow tube on the Bear 2 ventilator used by Mrs. Piper. The therapist added the filter to the ventilator to prevent bacteria emitted through Mrs. Piper's expiration from contaminating those who worked near her.

Approximately ten days after Mrs. Piper was placed on the Bear 2, a nurse accidentally knocked off the expiratory arm causing the ventilator alarms to sound. The nurse attempted to reassemble the parts and sought the help of another nurse because no respiratory therapist was on duty at the time. One of the nurses inverted the one-way check valve on the ventilator when reassembling and the alarms on the Bear 2 continued to sound.

The proper procedure in this situation is to disconnect the patient from the ventilator and use other medical equipment to manually assist breathing. However, Mrs. Piper was not removed from the ventilator for several minutes, during which the inverted check valve permitted her to inhale but prevented her from exhaling. Because the check valve was inverted, the pressure increased in Mrs. Piper's chest, preventing blood from returning to the heart or circulating to the brain, which in turn caused serious, neurological damage. After this incident, Mrs. Piper's condition steadily deteriorated. With her family's consent, she was eventually taken off the ventilator and died shortly afterward.

Fred Piper, the surviving spouse, filed a wrongful death action against several defendants including Bear. Only the claims against Bear are involved in this appeal. After denying Bear's motions for directed verdicts, the trial court submitted the case to the jury which returned a verdict finding zero compensatory damages but awarding punitive damages. The trial court rejected this verdict and instructed the jury to continue its deliberation. The jury later returned verdicts for the plaintiff, awarding $10,000 in compensatory damages and $750,000 in punitive damages. The trial court denied Bear's post-trial motions for JNOV and for a new trial, and entered judgment on the jury verdicts. This appeal followed.

STRICT PRODUCTS LIABILITY

The test for granting a directed verdict and a JNOV is the same. Times Mirror Co. v. Sisk, 122 Ariz. 174, 178, 593 P.2d 924, 928 (App.1978). These motions should be granted only "if the facts produced in support of a claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." See Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). On appeal from denial of motions for a directed verdict or JNOV, we view the evidence and all reasonable inferences in a light most favorable to the nonmoving party. Rocky Mountain Fire and Casualty Co. v. Biddulph Oldsmobile, 131 Ariz. 289, 292, 640 P.2d 851, 854 (1982).

A prima facie case of strict products liability is established if (1) the product is defective and unreasonably dangerous, (2) the defective condition existed at the time the product left the defendant's control, and (3) the defective condition is the proximate cause of the plaintiff's injuries. Gosewisch v. American Honda Motor Co., 153 Ariz. 400, 403, 737 P.2d 376, 379 (1987). Three types of defects can result in an unreasonably dangerous product: manufacturing defects, design defects, and informational defects encompassing instructions and warnings. Id. Mr. Piper claims the Bear 2 was an unreasonably dangerous product because of its design and the absence of adequate warnings.

Design Defect

The Bear 2, first manufactured in 1982, evolved from the Bear 1 ventilator which was developed in the mid-1970s. Both machines incorporated a one-way check valve but only the Bear 1 required the use of a universal adaptor, a flexible fitting that connects parts having different diameters. The universal adaptor was needed to attach the water trap to the flow tube on the Bear 1. Over a period of fourteen years, Bear received reports of eight incidents in which the expiratory arm of the Bear 1 became dislodged and the one-way check valve was reassembled in reverse.

Bear redesigned its ventilator so that the Bear 2 water trap fits directly into the flow tube of the expiratory arm; therefore a universal adaptor is no longer included as a component part, nor is it required for assembly. However, instructions for the water trap indicate a universal adaptor is necessary to test the Bear 2 prior to use, and no warning is provided to deter use of the adaptor after testing.

It was undisputed that the one-way check valve could not be inserted backwards into the Bear 2's standard component parts. However, with the addition of a universal adapter into the Bear 2 expiratory arm, the one-way check valve could be reversed despite diametrical indexing.

It was common for respiratory therapists to modify the expiratory arm by adding parts including the addition of bacterial filters. This was a common and well-known practice in the respiratory therapy industry, and Bear knew its ventilators were being modified.

Bear asserts a manufacturer's knowledge that its product is being modified cannot extend the manufacturer's liability to cover injuries resulting from such modifications. Bear contends the trial court erred in denying its motions for a directed verdict and JNOV because Mr. Piper failed to meet his burden to prove the Bear 2 was defective when it left Bear's control--therefore he could not show the Bear 2 was the proximate cause of Mrs. Piper's death.

Proximate causation encompasses causation-in-fact and is generally a jury question. Gosewisch, 153 Ariz. at 404, 737 P.2d at 380. However, proximate cause is not merely a finding that there is a connection between defendant's conduct and the injury. It is a legal determination that certain conduct is significant or important enough that the defendant should be legally responsible. See W. Page Keaton, et al., Prosser and Keaton on the Law of Torts § 42 at 273 (5th ed. 1984).

There is general agreement that where misuse or modification of a product is unforeseeable and causes injury, the connection with the manufacturer is severed so that the manufacturer cannot be held liable. See, e.g., Mason v. E.L. Murphy Trucking Co., 769 F.Supp. 341 (D.Kan.1991); Watts v. TI, Co., 561 So.2d 1057 (Ala.1990); Mattes v. Black & Veatch, 828 S.W.2d 903 (Mo.App.1992); Ogle v. Caterpillar Tractor Co., 716 P.2d 334 (Wyo.1986). However, there is significant disparity among court opinions addressing the effect of foreseeable product modifications on a manufacturer's liability. See generally 3 American Law of Products Liability 3d, § 43:16 (1987) (discussing the applicability of foreseeability to liability for injuries caused by altered or modified products). The Restatement (Second) of Torts, section 402A, comment p (1965), takes no position on this issue.

In some jurisdictions, the manufacturer's responsibility for providing a safe product does not extend beyond the time of sale, and the foreseeability of a substantial modification of its product is irrelevant to the manufacturer's liability. See, e.g., Hines v. Joy Mfg. Co., 850 F.2d 1146 (6th Cir.1988) (holding that under the Kentucky Products Liability Act an unauthorized modification precludes recovery against the manufacturer, and the common law concept of foreseeability will not be read into the statute). Accord Hutt v. Gibson Fiber Glass Products, Inc., 914 F.2d 790 (6th Cir.1990); Robinson v. Reed-Prentice Division of Package...