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PRICE L. ROGERS AND ELAINE ROGERS v. JOHNSON & JOHNSON PRODUCTS (11/06/87)

filed: November 6, 1987.

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



Appeal from the Order entered on April 2, 1986, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 3846 February 1981.

COUNSEL

Alan K. Cotler, Philadelphia, for appellant.

Jim Beasley, Philadelphia, for appellees.

Cirillo, President Judge*fn* and Beck and Hester, JJ.

Author: Beck

[ 368 Pa. Super. Page 111]

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 ยง 402A . . . ." Id., 214 Pa. Superior Ct. 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.*fn1 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.

[ 368 Pa. Super. Page 112]

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.*fn2 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

[ 368 Pa. Super. Page 113]

    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.*fn3 Appellees' reliance

[ 368 Pa. Super. Page 114]

    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.*fn4 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

[ 368 Pa. Super. Page 115]

    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 non-suit and/or directed verdict.*fn5 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:

Question 1: Was the Johnson & Johnson plaster of Paris defective as a

     result of malfunction?

Yes No

Question 2: Was the Johnson & Johnson plaster of Paris defective as a

     result of failure to warn its users?

Yes No

Question 3: If you answer "Yes" to either Questions 1 or 2, was the

     defect a substantial factor in bringing about the plaintiff's

     harm?

Yes No

Question 4: Was defendant, Johnson & Johnson, negligent?

Yes No

Question 5: If yes, was the negligence of defendant, Johnson & Johnson,

     a substantial contributing factor in causing plaintiff's burns?

Yes No

Question 6: Was Dr. Naame ...


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