Witthauer v. Burkhart Roentgen, Inc., 900219

CourtUnited States State Supreme Court of North Dakota
Citation467 N.W.2d 439
Decision Date19 March 1991
Docket NumberNo. 900219,900219
PartiesProd.Liab.Rep.(CCH)P 12,778 Paul and Lynnette WITTHAUER, individually, and as next friends of Lindsey Witthauer, a minor, Plaintiffs and Appellees, v. BURKHART ROENTGEN, INC., Defendant and Appellant. and FARGO CLINIC, LTD., a.k.a., MeritCare, Defendant, Third Party Plaintiff and Appellee, v. BURKHART ROENTGEN, INC., Third Party Defendant, Fourth Party Plaintiff and Appellant, v. DR. MACH GmbH & CO., Fourth Party Defendant. Civ.

Robert Vogel Law Office, P.C., Grand Forks, for plaintiffs and appellees; argued by Alvin O. Boucher.

Bruce L. Madlom, Fargo, and Moench Law Firm, Bismarck, for defendant, third-party defendant, fourth-party plaintiff and appellant Burkhart Roentgen, Inc.; argued by Bruce L. Madlom, Fargo. Appearance by Dale W. Moench, Bismarck.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for defendant, third-party plaintiff and appellee Fargo Clinic, Ltd.; argued by Jane C. Voglewede.


Burkhart Roentgen, Inc. [Burkhart], appealed from a judgment entered on a jury verdict finding Burkhart 40 percent liable for $163,291.98 in damages awarded to Paul, Lynnette, and Lindsey Witthauer. Burkhart also appealed the denial of its post-trial motions. We affirm.

In March 1986, Lindsey Witthauer, the three and one-half month-old daughter of Paul and Lynnette Witthauer, was hospitalized at St. Luke's Hospital in Fargo for congestive heart failure and respiratory infection. Dr. Gerald Atwood, a pediatric cardiologist at Fargo Clinic, recommended that Lindsey undergo a cardiac catheterization procedure in which a small wire is inserted into a vein in the groin area and passed into the heart to search for defects.

Dr. Atwood performed the catheterization on the morning of April 4, 1986. The doctor was unable to insert the catheter through the skin, so he performed a "cutdown," a surgical procedure where an incision was made in the groin down to the vein to allow correct placement of the catheter. The "cutdown" procedure required use of a surgical lamp.

The lamp used for the procedure was a Mach-Soloflex, which was manufactured by Dr. Mach GmbH & Co., a German company, and distributed in this country by Burkhart. The Mach-Soloflex is a high-intensity surgical lamp which focuses light to illuminate a small area. The lamp was purchased by Fargo Clinic in 1984 and was permanently installed as part of the technical equipment owned and maintained by Fargo Clinic in the hospital room.

Before Dr. Atwood used the lamp, he was informed by a technician that the lamp had been broken during an emergency procedure the previous evening. The lamp was damaged when it was bumped by another piece of catheterization equipment which was being moved by a Fargo Clinic employee. The bump caused the lower housing of the lamp to fall to the floor. Unknown to the doctor, the lower housing contained a blue-tinted glass which served as a heat-protection filter.

Dr. Atwood decided to use the lamp after a technician turned it on and illumination occurred. The lamp was placed three feet above Lindsey and was used for approximately 15 minutes. After the catheterization procedure was completed, Dr. Atwood noticed redness and blistering in Lindsey's groin area and inner thigh where the lamp had been shining. Lindsey had received second and third degree burns to those areas. She subsequently underwent plastic surgery and now has three permanent scars caused by the burns.

Tests later conducted on the lamp revealed that, with the heat-protection filter in place, the temperature at the focus of the lamp reached 83.4 degrees Fahrenheit after seven minutes and stabilized at that temperature even though the lamp was on for a greater period of time. Without the heat filter in place, the temperature at the focus of the lamp reached 169 degrees Fahrenheit after one minute, 217 degrees Fahrenheit after seven minutes, 224 degrees Fahrenheit after 10 minutes, and stabilized at 222 degrees Fahrenheit after 15 minutes. The lamp contained no warning label when Fargo Clinic purchased it. After Lindsey was burned, Fargo Clinic placed a warning label on the lamp which said "Do Not Operate This Light Without Filter." Fargo Clinic staff also discovered that the lower part of the housing was secured to the upper housing of the lamp with only a pin and thumb screw and added a reinforcing nut to the housing to make the lamp more secure.

The Witthauers sued Fargo Clinic on August 21, 1987, alleging that its negligence caused Lindsey's burns. On December 1, 1987, Fargo Clinic brought a third-party action against Burkhart on grounds of negligence, strict liability, and breach of warranty, alleging that the lamp was defective and unreasonably dangerous and that Burkhart negligently failed to provide adequate warnings of any particular dangers in the use of the lamp. Fargo Clinic asserted that the Witthauers's injuries were caused by Burkhart's "negligence, negligent failure to warn, negligent failure to instruct, breach of warranty whether express or implied, and strict liability." On May 15, 1989, Burkhart brought a fourth-party action against Dr. Mach GmbH & Co., the manufacturer of the lamp, seeking contribution and indemnity.

Prior to trial, Burkhart was represented by two different attorneys, each of whom was allowed to withdraw as counsel when Burkhart failed to cooperate in completing discovery and failed to pay attorney fees. On July 26, 1989, before Burkhart's second attorney had withdrawn, the trial court sent a notice to Burkhart's counsel setting the trial for March 12, 1990, with a pretrial conference scheduled for March 2, 1990. In the second attorney's motion to withdraw, which was served on Burkhart, the attorney stated that trial was scheduled for March 1990.

On February 7, 1990, the trial court sent Burkhart a notice changing the date of the pretrial conference to March 6, 1990. Also on that date, the Witthauers moved to amend their complaint to allege a direct products liability action against Burkhart, asserting that Lindsey's injuries were caused, in part, by Burkhart's "negligence, negligent failure to warn, negligent failure to instruct, breach of express and/or implied warranties, and strict liability...." Burkhart did not respond to the motion, nor did it appear at the hearing on the motion on February 22, 1990. On February 26, 1990, the trial court granted the Witthauers's motion to amend the complaint and granted Burkhart 15 days to answer the amended complaint.

Burkhart did not appear at the pretrial conference on March 6, 1990. When the jury trial began on March 12, 1990, neither Burkhart nor Dr. Mach GmbH & Co. appeared and the trial court severed Burkhart's fourth-party action. On March 15, 1990, the fourth day of the six-day trial, Burkhart appeared with counsel and moved to sever itself from the action or, in the alternative, for a continuance. The trial court denied both motions.

The jury, which was instructed on both strict products-liability and negligent products-liability issues, returned a special verdict finding that the lamp was not in a defective and unreasonably dangerous condition when it left Burkhart's possession, but that both Burkhart and Fargo Clinic were negligent in causing Lindsey's burns. The jury apportioned 60 percent of the negligence to Fargo Clinic and 40 percent of the negligence to Burkhart. The jury awarded Lindsey $100,000 in damages and awarded Paul and Lynnette $25,000 in damages, plus prejudgment interest. The trial court denied Burkhart's motions for judgment notwithstanding the verdict or, in the alternative, for a new trial. Judgment was subsequently entered for $163,291.98. Burkhart is the sole appellant in this case.


Burkhart argues that the trial court's decision to allow the Witthauers to amend their complaint to assert a direct products liability action against it resulted in several reversible errors. Burkhart asserts that the trial court erred in allowing the Witthauers to amend their complaint approximately one month prior to trial and that the court further compounded the error by denying a continuance or severance when it finally appeared to defend on the fourth day of trial. Burkhart contends that, as a result, it was not provided adequate time to answer and defend the Witthauers's claims. We reject Burkhart's contentions.

Burkhart asserts that the trial court failed to provide it with the time required by Rules 4(f), 6(e) and 12(a), N.D.R.Civ.P., to answer the Witthauers's amended complaint. Assuming for purposes of this opinion that those time requirements are applicable when a plaintiff amends a complaint to assert a direct action against a third-party defendant who has been properly brought within the jurisdiction of the court by the original defendant [compare Dysart v. Marriott Corp., 103 F.R.D. 15, 18-19 (E.D.Pa.1984) ] we do not believe reversal is required in this case.

We agree with the federal courts which have held that the allowance of an incorrect time for the filing of an answer to a complaint is generally cured by the defendant either filing an answer, responding to the complaint in some manner, or appearing in the action, and that reversal is not justified absent a showing of prejudice. Sanderford v. Prudential Ins. Co. of America, 902 F.2d 897 (11th Cir.1990); United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371 (9th Cir.1984); U.S. v. National Muffler Mfg., Inc., 125 F.R.D. 453 (N.D.Ohio 1989); Fountain Valley Corp. v. Wells, 98 F.R.D. 679 (D.V.I.1983), aff'd, 728 F.2d 209 (3rd Cir.), cert. denied, 471 U.S. 1107, 105 S.Ct. 2343, 85 L.Ed.2d 858 (1985); A.C. Samford, Inc. v. United States, 226 F.Supp. 72 (M.D.Georgia 1963); 4A Wright and Miller, Federal Practice and Procedure: Civil Sec. 1088 (1987); see also, Rule 61, N.D.R.Civ.P. Although Burkhart did not formally file an answer to...

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