Putensen v. Clay Adams, Inc.

• Decision Date: 20 November 1970
• Citation: 12 Cal.App.3d 1062,91 Cal.Rptr. 319
• Court: California Court of Appeals Court of Appeals
• Parties: , 8 UCC Rep.Serv. 449 Ella W. PUTENSEN, Plaintiff and Appellant, v. CLAY ADAMS, INCORPORATED, a Corporation, H. W. Paley and Mount Zion Hospital, Defendants and Respondents. Civ. 26213.

Page 319

91 Cal.Rptr. 319

12 Cal.App.3d 1062, 8 UCC Rep.Serv. 449

Ella W. PUTENSEN, Plaintiff and Appellant, v. CLAY ADAMS, INCORPORATED, a Corporation, H. W. Paley and Mount Zion Hospital, Defendants and Respondents.

Civ. 26213.

Court of Appeal, First District, Division 1, California.

Nov. 20, 1970.

Herron & Winn, John Wynne Herron, Dennis B. Conklin, San Francisco, for plaintiff-appellant.

Cushing, Cullinan, Hancock & Rothert, John Lockley, San Francisco, for Clay Adams, Inc.

Bledsoe, Smith, Cathcart, Johnson & Rogers, Robert A. Seligson, Anthony Dougherty, San Francisco, for H. W. Paley.

Clark, Heafey & Martin, Chris G. Gasparich, P. Gerhardt Zacher, Oakland, for Mount Zion Hospital.

MOLINARI, Associate Justice.

In this action for damages for personal injuries brought by plaintiff against Clay Adams, Incorporated, a corporation (hereinafter inafter referred to as 'Clay Adams'), H. W. Paley (hereinafter referred to as 'Dr. Paley'), and Mount Zion Hospital and Medical Center, a nonprofit corporation (hereinafter referred to as the 'Hospital'), plaintiff appeals from a judgment of nonsuit in favor of Clay Adams and a judgment upon a verdict in favor of Dr. Paley and the Hospital in a case tried before a jury.

The Facts

Plaintiff, with a history of a heart ailment, entered the Hospital for the purpose of undergoing a heart catheterization procedure. This procedure was diagnostic in nature and for the purpose of determining the extent of aortic insufficiency. Plaintiff testified that she underwent such operation without any explanation of what precisely was involved or the attendant risks. However, plaintiff also stated that she told Dr. Paley, who performed the procedure, that she preferred to remain ignorant of the operation. Plaintiff also admitted that she was aware, prior to said operation, of the general nature of a heart catheterization. There was also evidence that plaintiff had talked with a Doctor Bine regarding the advisability of a heart catheterization.

The subject procedure consists of the insertion of tubing through a needle puncture in the right femoral artery and then up through the artery and into the aorta at a point near the heart. The tubing is used to carry radio opaque material into the aorta as part of the diagnostic procedure. When this operation was performed on plaintiff the procedure had proceeded to the point where the tubing was positioned in the aorta when Dr. Paley noted that a 'kink' had developed in the tubing. His attempts to straighten the tubing were unsuccessful. Plaintiff was thereupon taken to surgery where the 'kinked' tubing was removed from the artery by surgical procedure. This surgical operation was required because the tubing could not be safely removed except by surgery.

The subject tubing was a polyethylene tubing manufactured by Clay Adams and was designated by it as PE-280. This tubing was purchased by the Hospital in 100-foot rolls. When it was received Dr. Paley examined it to see if it had the right degree of flexibility for its use. In preparing the PE-280 tubing for use as a catheter approximately four feet in length was cut from one of the rolls. This length of the PE-280 tubing was then inserted over a tubing of smaller diameter known as PE-160 tubing. The PE-280 tubing was then stretched to narrow its diameter so that it would fit snugly over the PE-160 tubing. This stretching process would stretch the tubing 7, 8 or 9 inches. The leading end of both the PE-280 and PE-160 tubings were then cut and the PE-160 tubing was removed. The end of the PE-280 tubing was then trimmed or beveled with an emery board and the tubing was then soaked for at least 24 hours prior to its use in a detergicide solution. This fabrication procedure was performed under the direction of Dr. Paley. When the PE-280 catheter was completed Dr. Paley examined it in detail by visual and tactile examination. The tactile examination consisted of running his fingers along it and bending it in a wide arc to see if it was flexible. Dr. Paley at no time made any tests as to the strength of the walls of the PE-280 tubing.

In performing the subject diagnostic procedure a PE-160 tubing is inserted into the femoral artery and a wire is put through it. Then the PE-160 tubing is withdrawn from the artery leaving only the wire in the artery. Then a second PE-160 tubing is inserted over the wire, and the deterged PE-280 tubing is inserted over the PE-160 tubing. When the entire ensemble reaches a position close to the descending aorta the wire and PE-160 tubing are withdrawn leaving only the PE-280 tubing in the artery. The PE-280 tubing is then advanced to a few inches below the aortic arch. The PE-280 tubing, operated at the external end by a syringe, is then filled with radio opaque material and then advanced under fluoroscopic vision beyond the aortic arch. It was during this latter procedure in the instant case that Dr. Paley discovered the 'kink' in the tubing. Prior to this observation Dr. Paley had experienced difficulty getting the PE-280 tubing beyond the aortic arch. Instead of going around the arch the tubing repeatedly went up into the left common carotid artery.

Dr. Paley testified that he had read the literature accompanying the PE-280 tubing and that this literature suggested that the tubing was useful for moving fluids into and from body cavities. From this literature Dr. Paley implied that the tubing was suitable for heart catheterization. Dr. Paley stated further that his decision to use PE-280 tubing in the heart catheterization procedure was based on this literature and from medical journals articles suggesting that it was appropriate therefor. Such articles did not derive from Clay Adams, however. Dr. Paley acknowledged that none of Clay Adams' literature specifically mentioned the use of PE-280 tubing in a human heart catheterization.

Dr. Paley further testified that he had performed approximately 100 other heart catheterizations, using PE-280 tubing, all without such a 'kinking' mishap. He stated that several other heart catheterization operations had been done prior to the incident one, using PE-280 tubing from the roll used for plaintiff's operation, without such a mishap.

A vice-president of Clay Adams testified that he was aware that PE-280 tubing was being used as a raw material from which heart catheters were fabricated and that Clay Adams never questioned this use. He testified, further, that such use was not suggested by Clay Adams, that it was not Clay Adams' policy to determine or suggest uses, and that the use to which the tubing was put was a matter to be determined by the user. This witness also testified that the walls of the PE-280 tubing varied slightly in thickness and that no specific tests were conducted prior to sale to determine the strength of the walls.

A former university engineering professor, testifying as an expert, testified that he had conducted experiments on some of the PE-280 tubing. These experiments revealed that the PE-280 tubing 'kinked' easily, that it was more apt to 'kink' when heated or soaked, and that once it became 'kinked' it failed to recover physical integrity. ¹

Other facts which may be pertinent to a particular discussion will be stated in conjunction therewith. We proceed to discuss the several contentions made by plaintiff with the observation that the instant action is one for damages for personal injuries alleged to have been suffered as a result of the subject procedure. As against Clay Adams the action, as disclosed by the issues tendered, is one sounding in strict liability in tort, breach of express and/or implied warranty, and negligent manufacture; as against Dr. Paley and the Hospital, it sounds in medical malpractice.

Nonsuit

In considering the several contentions of plaintiff with respect to Clay Adams we do so, initially, upon an application of the following well-settled principle: A nonsuit in a jury case or a directed verdict may be granted only when disregarding conflicting evidence, giving to the plaintiff's evidence all the value to which it is legally entitled, and indulging every legitimate inference which may be drawn from the evidence in plaintiff's favor, it can be said that there is no evidence to support a jury verdict in his favor. (Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583, 75 Cal.Rptr. 652, 451 P.2d 84; Estate of Callahan, 67 Cal.2d 609, 612, 63 Cal.Rptr. 277, 432 P.2d 965.)

Strict Liability in Tort

Plaintiff urges that the doctrine of strict liability in tort was applicable because of the evidence that the tubing kinked easily, that no tests were conducted by Clay Adams to ascertain the tubing's strength and that no warning was given of the failure to make such tests.

In California the rule of strict liability is stated thusly: 'A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.' (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 700, 377 P.2d 897, 900; Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 260--261, 37 Cal.Rptr. 896, 391 P.2d 168; Elmore v. American Motors Corp., supra, 70 Cal.2d 578, 583, 75 Cal.Rptr. 652, 451 P.2d 84; Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 475, 85 Cal.Rptr. 629, 467 P.2d 229.) This liability extends not only to actual consumers or users but to any human being to whom an injury from the defect is reasonably foreseeable. (Elmore v. American Motors Corp., supra, at p. 586, 75 Cal.Rptr. 652, 451 P.2d 84; Johnson v. Standard Brands Paint Co., 274 Cal.App.2d 331, 338, 79 Cal.Rptr. 194.)

In Pike, supra, the standard of strict liability as stated in the Restatement Second of Torts, section 402A, was adopted by our California Supreme Court. That standard is stated thusly: 'One who sells any product in a defective condition unreasonably...