MEMORANDUM AND ORDER
HERBERT J. HUTTON, UNITED STATES DISTRICT JUDGE.
Before this Court is defendants' motion for partial summary judgment against plaintiffs on counts II and III of plaintiffs' complaint. After due consideration, defendants' motion is granted as to both count II and count III.
On or about April 30, 1986, William Flynn underwent a cervical laminectomy at the Hospital of the University of Pennsylvania. During surgery, a freeze-dried xenograft, graft of tissue, was inserted on the dural lining of Mr. Flynn's spinal cord to repair a small pseudomeningocele or tear. Plaintiff alleges that subsequent to the cervical laminectomy and insertion of the graft he contracted staphylococcus meningitis. Plaintiff filed a complaint against the above-named defendants alleging negligence, res ipsa loquitur and strict liability. Defendants move to dismiss counts II and III of plaintiffs' complaint.
In making its ruling on a summary judgment motion, the court must view all inferences in a light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3rd Cir. 1982). The court must resolve all doubts against the moving party. Gans v. Mundy, 762 F.2d 338, 341 (3rd Cir. 1985), cert. denied, 474 U.S. 1010, 106 S. Ct. 537, 88 L. Ed. 2d 467 (1985). We must take as true all allegations of the non-moving party that conflict with those of the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
Defendants' move to dismiss plaintiffs' claim of res ipsa loquitur. In Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1981), ". . . the Court held that the doctrine of res ipsa loquitur may be applied in medical malpractice cases . . ." Gallegor v. Felder, M.D., 329 Pa. Super. 204, 478 A.2d 34 (1984). However, res ipsa loquitur is not a cause of action. In Jones, the court clearly stated that "res ipsa loquitur is neither a rule of procedure nor one of substantive tort law. We stressed that it was only a short-hand expression for circumstantial proof of negligence -- a rule of evidence." Jones v. Harrisburg, 437 A.2d at 1137. Therefore, count II of plaintiffs' complaint is dismissed.
Defendants contend that a strict liability action against a hospital is not a recognized claim under Pennsylvania law. Plaintiffs' complaint alleges a strict liability action under Restatement (Second) of Torts § 402A.
Defendants contend that statutory and case law preclude a strict liability claim against a hospital in Pennsylvania. Firstly, defendants cite 42 Pa. C.S.A. § 8333, which states in pertinent part:
(a) General Rule. -- No person shall be held liable for death, disease or injury resulting from the lawful transfusion of blood, blood components or plasma derivatives, or from the lawful transplantation or insertion of tissue, bone or organs, except upon a showing of negligence on the part of such person. Specifically excluded hereunder is any liability by reason of any rule of strict liability or implied warranty or any warranty not expressly undertaken by the party to be charged.
There is no case law interpretation of this statute regarding hospital defendants. The historical note indicates that 42 Pa. C.S.A. § 8333 was substantially a reenactment of "The Medical Transfusions and Transplants Act," 35 P.S. § 10021. That Act states in pertinent part:
Notwithstanding any other law, no hospital, blood bank or other entity or person shall be held liable for death or injury, resulting from the lawful transplantation or insertion of tissue, bone or organs, except upon a showing of negligence on the part of such hospital, blood bank, entity or person. For purposes of this act negligence shall include but not be limited to any failure to observe accepted standards in the collection, testing, processing, handling, storage, transportation, classification, labelling, transfusion, injection, transplantation, or preparation or use of any such blood, blood components, plasma derivatives, tissue, bone or organs. Specifically excluded hereunder is any liability by reason of implied warranty or any other warranty not expressly undertaken by the party to be charged.