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THOMAS v. AMERICAN CYSTOSCOPE MAKERS

May 5, 1976

SAMUEL DWANE THOMAS, M.D.
v.
AMERICAN CYSTOSCOPE MAKERS, INC. et al.



The opinion of the court was delivered by: DAVIS

 On May 26, 1971, the plaintiff, Doctor Samuel Dwane Thomas, then a urology resident at Episcopal Hospital, was performing a transurethral prostatectomy using a surgical instrument known as a resectoscope. Suddenly, in the midst of the operation, the instrument malfunctioned, and Dr. Thomas suffered an electrical burn of the cornea of his right eye. He brought suit against the manufacturer, American Cystoscope Makers, Inc. (ACMI) and various other defendants, *fn1" basically asserting that the resectoscope was defectively designed and had caused his injury. Following a series of last minute events shortly before and at the outset of trial, the case ultimately was tried against ACMI alone on a theory of strict liability in tort under § 402A of the Restatement of Torts (Second). The jury found in favor of the plaintiff and returned a verdict awarding $475,000 compensatory and $200,000 punitive damages.

 We have before us the motion of defendant ACMI for judgment n.o.v. and in the alternative, for a new trial. Before we consider the whole host of arguments that have been raised, it is appropriate that we recite briefly the factual background of the case.

 The crux of the action, of course, is the product itself. The device in question here is an instrument commonly used in urological surgery. It is part of a complex and highly sophisticated electro-surgical unit and is comprised of several component parts. Chief among them, and relevant for our consideration, is an optical telescope (a cystoscope) which permits so called closed surgery by insertion of the instrument directly into the patient's body. The surgeon is able to see and to operate internally by viewing through a monocular eyepiece affixed to the end of the telescope shaft. When incorporated with other component parts, including a resectoscope working element, cutting loop, and sheath, and connected to a light source and electrical power supply known as a Bovie machine, the instrument is complete. In its integrated configuration, the resectoscope is hand-held and measures approximately 15 inches in length. The surgical function is accomplished by means of high frequency electrical energy supplied by the Bovie machine to the resectoscope cutting loop.

 ACMI manufactured and sold two basic types of eyepieces: a standard eyepiece and what was termed a photographic eyepiece, which permitted a camera or other attachments to be used with the instrument for purposes other than direct viewing. Dr. Thomas, however, at the time of his injury, was using a resectoscope equipped with a photographic eyepiece with his naked eye.

 On the day of the incident, Dr. Thomas was performing surgery under the supervision of Dr. Morton Bogash, who was then the head of the hospital's Urology Department. According to their testimony, as the operation progressed, the instrument began to get warm. At times, they also experienced a tingling sensation or minor shocks to their hands which apparently were relatively common occurrences in the use of resectoscopes. The warming effect, however, was something that neither surgeon had felt or heard of before. Twice during the procedure, the resectoscope and its various connections were inspected and parts changed, but on each occasion, the operation proceeded. In fact, Dr. Thomas testified that he still felt that the instrument was heating up until the moment of his injury. Then as he described, "I felt almost like a blow in my right eye as though I had been hit with a fist and it knocked me backwards and I had no discomfort for maybe up to a minute, it felt like there was a lash or something in my eye and the pain became very intense. . . ." *fn2"

 The essence of plaintiff's liability theory was that the photographic eyepiece was not fully insulated and that this constituted a design defect which rendered the product unreasonably dangerous to its users or at least required ACMI to warn physicians against foreseeable hazards. *fn3" There was substantial dispute as to exactly how plaintiff's injury occurred. Whether or not the assigned defect was a proximate cause of plaintiff's injury also produced conflicting evidence as did other contentions ACMI raised in defense. But while these matters were at issue, the fact that in some manner electrical current was caused to pass from the eyepiece at the ocular end of the instrument into plaintiff's eye cannot be seriously contested.

 Plaintiff suffered a corneal burn which resulted in significantly impaired vision for several months. Subsequently, there was some improvement, but according to the testimony, Dr. Thomas still had a permanent residual impairment. Although he had, even up until the time shortly before trial, been able to engage in the full range of activities in his practice as a urologist, albeit with difficulty, there was substantial evidence that plaintiff has been, and will continue to be limited in the future in his professional activities, and otherwise, particularly with regard to his ability to perform endoscopic surgery by virtue of the injury to his eye. *fn4"

 The post-trial motions of ACMI raise the following main contentions:

 We will consider these points seriatim, and of course, in doing so, we must view all of the testimony and inferences therefrom in the light most favorable to the plaintiff, who was the verdict-winner. 5A Moore's Federal Practice § 50.07[2].

 I. MOTION FOR JUDGMENT N.O.V. LIABILITY

 ACMI's most serious contention on liability is that plaintiff failed to establish that the specific defect in the resectoscope in fact caused his injury. The narrow argument which is advanced focuses on what is claimed to be a fatal inconsistency in plaintiff's proof.

 The central factual allegation postulated by plaintiff was that his eye was burned when an electrical current passed from the instrument's eyepiece by a phenomenon commonly called "arcing", since admittedly there was at least some distance between his eye and the eyepiece at the critical moment of the incident. Indeed, at trial, there was considerable testimony from no less than five expert witnesses as to how, if at all, and under what circumstances, this "arcing" might occur. But, as defendant readily points out, no one, including Dr. Thomas, could positively identify the source or the cause of this unexplained, erratic current.

 Defendant argues from his own assessment of the evidence that all of the engineering experts agreed that, absent some abnormal or extraordinary occurrence in the functioning of the surgical unit which might cause "arcing" to occur, the plaintiff would not have sustained an electrical shock without virtually direct contact with the uninsulated eyepiece. It follows, according to defendant's syllogism, that since Dr. Thomas emphatically testified that there was no such contact, that "the jury . . . could only find causation by ignoring the evidence and grounding its verdict on shearest (sic) of speculation" (Defendant's Reply Brief at p. 7). Thus, ACMI concludes that plaintiff succeeded only in proving that he was not injured as he theorized.

 The attention which ACMI draws to this apparent contradiction in plaintiff's case is misplaced. As the Court sees it, the real thrust of its argument, although not clearly stated, is not the conflict itself, but rather that there was no valid basis on which the jury could have resolved that conflict in plaintiff's favor. Factually, this calls into question whether or not there was sufficient evidence for the conclusion that Dr. Thomas was injured without actual contact with the eyepiece of the resectoscope or, in other words, that an "arcing" effect actually occurred. Tested against the legal standards on the quantum of evidence necessary to establish a jury question on the issue of causation, we think that there clearly was.

 No one would dispute that the uninsulated eyepiece itself did not cause plaintiff's injury; it was after all only a passive condition. Necessarily, to have caused an electrical shock, some other operative force or forces must have acted upon it. As noted earlier, however, none of the expert witnesses who testified at trial presumed to unequivocally describe the physical mechanism that actually resulted in the conduction of current to the eyepiece. Possible explanations were offered by the various witnesses including the malfunctioning of the Bovie power supply, an unexplained surge in current, or other malfunction of the resectoscope itself, in particular, the apparently common occurrence of the highly charged cutting loop inadvertently coming into contact with the telescope shaft.

 In determining the sufficiency of the evidence for submission to the jury, we must be guided by the Pennsylvania courts and the concise statement of the law in Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, 138, 153 A.2d 477 (1959):

 
"We have said many times that the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but that there must be evidence upon which logically its conclusion may be based. . . . (citations omitted). Clearly this does not mean that the jury may not draw inferences based upon all the evidence and the jurors' own knowledge or experiences, for that is, of course, the very heart of the jury's function. It means only that the evidence presented must be such that by reasoning from it, without resort to prejudice or guess, a jury can reach the conclusions sought by plaintiff, and not that that conclusion must be the only one which logically can be reached. . . .
 
It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability. . . ."

 The test on the issue of factual causation is simply whether or not the jury could reasonably find that but for the existence of a defect in the product, the plaintiff would not have been injured. *fn6"

 We have no doubt in this case that there was a sufficient evidentiary foundation on which the jury could have concluded, as a matter of reasonable inference, that Dr. Thomas was injured by the "arcing" of electrical current from the uninsulated eyepiece of defendant's product. *fn7" The fact that plaintiff could not prove such an occurrence directly is of no import. The circumstantial evidence alone was enough. Smith v. Bell Telephone Co. of Pa., supra. Indeed, this concept finds support in the specific context of products liability cases where it is often impossible to establish by direct evidence the causal connection between an injury and a specific defect in the manufacture or design of the product. It is well recognized nonetheless, that circumstantial proof alone presents a sufficient basis for submission of the question of liability to the jury. Cf. MacDougall v. Ford Motor Co., 214 Pa. Super. 384, 257 A.2d 676 (1969); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974); and see, Kridler v. Ford Motor Co., 422 F.2d 1182 (3d. Cir. 1970).

 The remaining two contentions which defendant raises regarding liability can be disposed of more briefly.

 First, ACMI argues that we should reverse the jury's verdict because plaintiff misused its product on the occasion of the accident by using it with a photographic eyepiece rather than the standard eyepiece with which it was supplied. *fn9" It is contended that the ...


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