Racer v. Utterman

• Decision Date: 22 September 1981
• Docket Number: Nos. 42473,42482 and 42523,s. 42473
• Citation: 629 S.W.2d 387
• Court: Missouri Court of Appeals
• Parties: Betty S. RACER and David Racer, Plaintiffs-Cross-Appellants, v. Dr. William F. UTTERMAN, Johnson & Johnson, Defendants-Cross-Appellants, and Ste. Genevieve County Memorial Hospital, Defendant-Respondent.

Page 387

629 S.W.2d 387

Betty S. RACER and David Racer, Plaintiffs-Cross-Appellants, v. Dr. William F. UTTERMAN, Johnson & Johnson Defendants-Cross-Appellants and Ste. Genevieve County Memorial Hospital, Defendant-Respondent.

Nos. 42473, 42482 and 42523.

Missouri Court of Appeals, Eastern District, Division Four.

Sept. 22, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 20, 1981.

Application to Transfer Denied Jan. 18, 1982.

John W. Reid, II, Schnapp, Graham & Reid, Fredericktown, for plaintiffs in 42473, 42482, and appellants-respondents-plaintiffs in 42523.

V. Kenneth Rohrer, Roberts, Roberts & Rohrer, Farmington, for appellant in 42473, plaintiff in 42482, and appellant-respondent-defendant in 42523.

David L. Colson, Colson, Wagner & Freer, Farmington, for defendant in 42473, respondent in 42482, and Johnson & Johnson in 42523.

Robert G. Brady, Bryan, Cave, McPheeters & McRoberts, St. Louis, for appellant in 42473, respondent in 42482, and Johnson & Johnson in 42523.

J. Douglas Cassity, Cassity, Freeman, Greene & Bennett, Springfield, for appellant in 42473, defendant in 42482, and Dr. William F. Utterman in 42523.

William W. Evans, Evans & Dixon, St. Louis, for defendant in 42473, respondent in 42482, and Johnson & Johnson in 42523.

Robert Wulff, Amelung, Wulff & Willenbrock, St. Louis, for appellant in 42473, respondent in 42482, and Ste. Genevieve County Memorial Hospital in 42523.

Francis Toohey, Jr., Toohey & Moore, Perryville, for appellant in 42473 and Ste. Genevieve County Memorial Hospital in 42523.

SMITH, Judge.

This case involves three appeals arising from a judgment in a jury tried personal injury case.

Plaintiff Betty Racer underwent surgery for a dilation and curettage operation in defendant Ste. Genevieve County Memorial Hospital. Defendant William Utterman was the operating surgeon. During the course of the operation a disposable drape manufactured by defendant Johnson and Johnson caught on fire resulting in serious burns to Betty Racer. She (and her husband on a consortium claim) sued the three indicated defendants. They, in turn, filed cross-claims against each other seeking indemnity or apportionment of any damage award made. The jury found for plaintiffs against Dr. Utterman and Johnson and Johnson, and against plaintiffs in favor of the hospital. It assessed actual damages for Betty Racer of $375,000 and for David Racer of $7,500 which were apportioned by the jury at 2% against Dr. Utterman and 98% against Johnson and Johnson. It additionally awarded punitive damages against Johnson and Johnson of $500,000 in favor of Betty Racer and $17,500 in favor of David Racer. From the judgment in plaintiffs' favor, entered in accord with the jury verdict, Johnson and Johnson and Dr. Utterman have appealed. Plaintiffs have appealed from the judgment in favor of the hospital. We affirm the judgment for actual damages against Johnson and Johnson, reverse and remand the judgment for punitive damages against that defendant, reverse the judgment against Dr. Utterman, and affirm the judgment in favor of the hospital.

Although additional facts will be set forth as we deal with the various contentions raised on appeal, some discussion of the occurrence causing the injury is warranted. On April 26, 1976, Betty Racer was admitted to the hospital for an immediate D & C procedure. She was anesthetized and placed on the operating table. She was then draped with a Johnson and Johnson Lithotomy Pack II gynecological disposable surgical drape which covered her chest, abdomen, perineum, and legs, and which extended to the floor. The drape contains an opening over the vaginal area through which the surgery is performed. The area of the drape around this opening is reinforced with additional layers of material. The doctor, as an added precaution against infection, also covered Betty's legs with Converter leggings, a stocking-like covering. ¹ The purpose of the surgical drape is to provide a sterile field and to serve as a barrier to prevent bacteria from reaching the operation site. The operation was uneventful until just prior to its conclusion. At that point the surgeon was utilizing a cautery to stop bleeding in the cervix. He was simultaneously using a 4 X 8 cotton gauze as a sponge to remove blood so he could locate the bleeding spots. This was normal and usual practice in this type of operation. The hot cautery and sponge were in close proximity and the sponge began to smolder. This also is not uncommon in this type of surgery. The doctor threw the smoldering sponge at the feet of the circulating nurse for her to extinguish. It landed on, under, or very near the surgical drape. As the nurse stepped toward the sponge almost immediately after the doctor threw it, the drape began burning. The nurse threw a pan of water on the drape, but because of the water-repellant characteristics of the drape this had no effect except to possibly intensify the fire. The fire was extinguished in approximately twenty seconds by another member of the operating room team by use of a fire extinguisher obtained from outside the operating room. The doctor and nurse, in the interim, attempted to remove the drape, which had by that time ignited the leggings covering Betty Racer's left leg. Because of the presence of the leggings and the method of the draping, they were unable to fully remove the drape.

The fire, as described by the witnesses, burned at a very nearly explosive rate. Subsequent tests, outside the operating room and in the courtroom, made of the remains of the drape and a drape from the same shipment, also revealed the highly flammable nature of the drape. All of the witnesses for the plaintiff, those present in the operating room and otherwise, testified to their prior belief that the drape was fire-resistant or fire-retardant and a medical textbook (upon which Dr. Utterman relied) containing a similar conclusion was introduced into evidence.

Johnson and Johnson has raised twelve points in its brief. We have reviewed those not hereinafter discussed and conclude that they either are mooted by our conclusions on the points discussed or involve discretionary actions of the trial court in which we find no abuse of discretion. We also do not find the verdicts excessive. We will initially deal with those points relating to the sufficiency of the evidence to support the claim for actual and/or punitive damages and the propriety of the instructions submitting those issues. We will then discuss the submissibility of plaintiffs' case against Dr. Utterman and the hospital.

The Actual Damage Case Against Johnson and Johnson

Plaintiffs based their claim for actual damages upon Section 402A of the Restatement of Torts 2d, commonly referred to as strict liability in tort. It reads as follows:

"(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."

That section was adopted as the law of this state in Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362 (Mo.1969). In supporting its decision to adopt the doctrine of strict liability, the court emphasized that the purpose of the doctrine is "to insure that the costs of injuries resulting from defective products are borne by the manufacturers (and sellers) that put such products on the market rather than by the injured persons who are powerless to protect themselves." 445 S.W.2d at 364. Section 402A premises liability on the sale of a product in a defective condition unreasonably dangerous to the user or consumer. In Keener, the product, a sump pump, was clearly defective as manufactured. In Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo.banc 1977), the doctrine was applied to a product which was not defectively manufactured, but which was unreasonably dangerous because of its design. See also Cryts v. Ford Motor Co., 571 S.W.2d 683 (Mo.App.1978). Blevins recognized the existence of the "unavoidably unsafe" product which is the subject of discussion in comment k to Sec. 402A. That comment recognizes that certain useful and desirable products are, under the present state of human knowledge, incapable of being made safe for their intended and ordinary use. "Such a product, properly prepared, and accompanied by proper directions and warning, is not defective nor is it unreasonably dangerous." (Emphasis supplied except "unreasonably") Comment k, supra. Comment j to 402A provides that "(i)n order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use."

Based upon comment j, there has arisen a doctrine of strict liability for failure to warn. Comment k makes it apparent that the obligation to warn is applicable to "unavoidably unsafe" products. Although we have found no case in Missouri specifically dealing with this aspect of strict liability, MAI 25.05 (1978) recognizes the existence of a strict liability failure-to-warn cause of action.

Some courts have been troubled with the concept that a useful product manufactured properly and designed as safely as human knowledge makes possible which contains no warning of danger can meet the "defective condition" requirement of Sec. 402A. Some courts have simply eliminated the requirement of defect. Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943 (Mo.App.1970); ...