Rogers v. Johnson & Johnson Products, Inc.
| Decision Date | 06 November 1987 |
| Docket Number | No. 01037,01037 |
| Citation | 368 Pa.Super. 109,533 A.2d 739 |
| Court | Pennsylvania Superior Court |
| Parties | , Prod.Liab.Rep. (CCH) P 11,616 Price L. ROGERS and Elaine Rogers, H/W v. JOHNSON & JOHNSON PRODUCTS, INCORPORATED and Lankenau Hospital and Thomas Jefferson University Hospital. Appeal of JOHNSON & JOHNSON PRODUCTS, INCORPORATED. Phila. 1986. |
Alan K. Cotler, Philadelphia, for appellant.
Jim Beasley, Philadelphia, for appellees.
Before CIRILLO, President Judge * and BECK and HESTER, JJ.
This case presents a difficult question regarding the parameters and application of the "malfunction theory" in a strict product liability action.
The malfunction theory has been part of the law of strict liability in Pennsylvania since 1969 when this Court decided MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1969), allocatur denied. In MacDougall, the Court held "... that the occurrence of a malfunction of machinery in the absence of abnormal use and reasonable secondary causes is evidence of a 'defective condition' within the meaning of § 402A...." Id. at 391, 257 A.2d at 680. Thus, the malfunction theory relieves a Section 402A plaintiff from the burden of proving a specific defect in the product. The theory permits a plaintiff to establish a prima facie case as to the first element of strict liability, existence of a defect, through circumstantial evidence of a defect consisting merely in the fact of the malfunction of the product and the absence of abnormal use or reasonable secondary causes. Id.; Thompson v. Anthony Crane Rental, Inc., 325 Pa.Super 386, 395-96, 473 A.2d 120, 125 (1984), allocatur denied.
The primary argument of defendant-appellant Johnson & Johnson, Products, Incorporated (J & J) on appeal is that the trial court erred in submitting plaintiffs-appellees' strict liability claim, insofar as it was based on the malfunction theory, to the jury. 1 J & J asserts that appellees failed to demonstrate the absence of reasonable secondary causes as to the malfunction and urges this court to direct the entry of judgment n.o.v. in J & J's favor. Thus, the instant case calls upon us to divine precisely what the malfunction theory requires of a plaintiff who seeks to establish the absence of reasonable secondary causes.
The facts giving rise to this action can be briefly summarized. The action arose out of injuries sustained by appellee Price Rogers on May 1, 1977. 2 On that date, Mr. Rogers went to Lankenau Hospital ("Lankenau") seeking medical treatment for a broken leg. The treating physicians were Dr. John J. Dowling, Chief of Orthopedic Surgery at Lankenau, and Dr. Lawrence Naame, a third-year resident at Thomas Jefferson University Hospital ("Jefferson"). Dr. Naame was on rotation to Lankenau at the time. As part of the treatment of Mr. Rogers, Dr. Dowling instructed Dr. Naame to prepare a plaster of Paris splint to support Mr. Rogers' leg until the next day when Dr. Dowling intended to operate. The plaster of Paris product Dr. Naame used, technically called Johnson & Johnson Specialist fast-setting plaster of Paris (the "plaster of Paris"), was manufactured by appellant J & J.
After Dr. Naame prepared the splint, he applied it to Mr. Rogers' leg and left the treatment room. Dr. Dowling continued Mr. Rogers' treatment for a short while. Mr. Rogers complained to Dr. Dowling of a feeling of heat being generated by the splint but Dr. Dowling assured him everything was fine and left to secure Mr. Rogers a hospital bed for the night. Shortly thereafter, Mr. Rogers began to complain again about a burning sensation under the splint. Mrs. Rogers called Dr. Dowling back to the room and it would appear that he made some further efforts to cool the splint. However, when the splint was removed the next day, second and third degree burns were discovered on the back of Mr. Rogers' leg.
In August 1978, appellees instituted this action against J & J, Jefferson and Lankenau. Neither doctor was a defendant. Appellees' complaint alternatively alleged that the J & J plaster of Paris product was defective and/or negligently designed or manufactured and that the hospital defendants were liable under a theory of respondeat superior for the negligence of the treating physicians in preparing and applying the plaster of Paris. Prior to trial, counsel for appellees summarized their basic position, demonstrating that counsel relied both on strict liability and negligence:
I have evidence in this case that cuts two ways.... [A] 402A result for the plaintiff against Johnson & Johnson.... I have a burned man, Your Honor. The evidence can also show overwrapping and pillowing and dip water being too hot [evidence of medical malpractice in preparing and applying the splint], if [the jury] believe all of that, they can come back against.... Jefferson by their agent, Dr. Naame.
At first blush, this would appear to be less than extraordinary. Appellees had simply pleaded and were pursuing alternate theories of relief. However, in this case the situation was rendered somewhat more complex because of the precise nature of appellees' strict liability claim against J & J. Appellees conceded that they were unable to prove any specific defect in the manufacture or design of the plaster of Paris that would result in it overheating. Given this lack of direct evidence of defect, appellees based their strict liability claim against J & J on circumstantial evidence of a defect under the malfunction theory. 3 Appellees' reliance on the malfunction theory to support their strict liability claim coupled with their continued desire to preserve their negligence claim against the hospitals forced appellees to adopt a novel trial strategy. Appellees were apparently aware that it was potentially problematical for them to attempt both to sustain their burden of demonstrating the absence of reasonable secondary causes of the malfunction, and thus present a prima facie case of strict liability under the malfunction theory, while also presenting compelling evidence of a possible secondary cause, namely, the medical malpractice of the doctors. Appellees apparently also knew that J & J intended to attempt to prove that the product was not defective by showing that the product had acted as it did, i.e. had overheated, solely because of the negligence of the doctors in preparing and applying the splint. 4 Faced with this dilemma, appellees decided to marshal of their evidence in favor of the malfunction theory and to leave the proof of the alleged medical malpractice to J & J. In this manner, appellees sought to have their cake (the malfunction theory) and eat it too (the negligence theory). As we will indicate in greater detail below, this appellee could not do.
At trial, appellees called Dr. Dowling himself to testify to the occurrence of a malfunction in the plaster of Paris. Dr. Dowling testified that there had been no negligence on the part of either himself or Dr. Naame and that the burning of Mr. Rogers' leg could, therefore, only be explained by a malfunction of the product caused by some defect therein. Appellant, on the other hand, produced its own expert to testify to the negligence of Drs. Dowling and Naame, both in preparing the splint and in treating Mr. Rogers thereafter.
The case proceeded to the jury on all of appellees' theories, the trial court having denied all of the defendants' motions for compulsory nonsuit and/or directed verdict. 5 The jury was sent out with a detailed Verdict Form which, coupled with the trial court's charge, gave the jury very specific guidance as to how its deliberations should proceed. Because of the importance of the Verdict Form to our disposition of this case, we reproduce it here:
(R. 2669-70).
The jury was instructed that if it found for appellees on the strict liability theory, it should not consider any of the appellees' remaining theories and should proceed directly to a determination of damages. Moreover, although the trial court never expressly instructed the jury that if it found that the plaster of Paris was defective under the malfunction theory, it need not determine whether the product was also defective under the failure to warn theory, this was the clear implication of the Court's charge. 6
On February 7, 1984, the jury returned a verdict for appellees and against Johnson & Johnson only on the malfunction theory. The jury answered "Yes" to Question Nos. 1 and 3 and did not answer Question No. 2 or Question Nos. 4 through 8. In response to Question Nos. 9 and 10, the jury awarded $175,000 to Mr. Rogers and $50,000 to Mrs. Rogers on her loss of consortium claim.
The specificity of the Verdict Form coupled with the trial court's instructions provide us with a reliable guide to interpreting the jury's verdict. First, it is clear that the jury found for appellees on the malfunction theory only and did not even consider appellees' failure to warn theory. In delivering the verdict, the jury foreman specifically stated that the jury had not discussed Question No. 2 relating to failure to warn. This apparently resulted from the clear implication in the court's charge that a finding of a defect could be premised on either the malfunction theory or the failure to warn theory. Second, the jury did not specifically consider the negligence of J & J since it was instructed not to do so if it found J & J strictly liable.
On the other hand, despite the fact that the jury did not specifically answer those questions relating to Dr. Naame's negligence or the responsibility of the hospitals for such negligence, the jury's verdict might also be construed as a verdict not only against J & J but also in favor of the hospital defendants. The trial court announced this to be its understanding of the verdict shortly after the verdict was returned.
J & J filed a timely post-trial motion on February 16, 1984 and asserted therein numerous grounds for the...
To continue reading
Request your trial
-
Rogers v. Johnson & Johnson Products, Inc.
...malfunctioned and caused a severe burn. We previously filed an opinion reversing this judgment, Rogers v. Johnson & Johnson Products, Inc., 368 Pa.Super. 109, 533 A.2d 739 (1987), holding that a product malfunction theory and a negligence theory were mutually exclusive and that both theorie......
-
Gordner v. Dynetics Corp.
...in neither the Supreme Court opinion in Rogers, nor in the Superior Court opinion which was overturned, Rogers v. Johnson & Johnson Products, Inc., 368 Pa.Super. 109, 533 A.2d 739 (1987), is there any mention of whether the plaster of Paris splint at issue was available for examination. It ......
-
Schlier v. Milwaukee Elec. Tool Corp.
...however, as the Martin decision was based in part upon the Pennsylvania Superior Court's decision in Rogers v. Johnson & Johnson Products, Inc., 368 Pa.Super. 109, 533 A.2d 739 (1987), which subsequently was reversed by the Pennsylvania Supreme Court in the decision discussed in this 4 See ......
-
Rogers v. Johnson & Johnson Products, Inc.
...failed to present a jury question as to the existence of a defect which is an essential element of his cause of action. 368 Pa.Super. 109 at 127, 533 A.2d 739 (1987). We are constrained to Although the Superior Court has considered the malfunction theory of strict liability, see Thompson v.......