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decided: October 20, 1989.


Appeal from the November 6, 1987, Judgment of the Superior Court of Pennsylvania, No. 01037 Philadelphia, 1986, reversing the April 2, 1986, Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 3846, February, 1981. Nix, C.j.,*fn* and Larsen, Flaherty, Zappala, Papadakos and Stout, JJ. Flaherty, J., files a dissenting opinion in which Zappala, J., joins. McDermott, J., did not participate in the consideration or decision of this case. Stout, former Justice, did not participate in the decision of this case.

Author: Nix

[ 523 Pa. Page 178]


The issue in this case is whether a plaintiff proceeding on the strict liability theory of product malfunction will be precluded from having a jury decide the case if the manufacturer of the product introduces evidence of the negligence of another party as the cause of the malfunction. Contrary to the Superior Court, we conclude not.

The facts are that on May 1, 1977, Price Rogers entered Lankenau Hospital for the treatment of a broken leg. Dr. John J. Dowling, Lankenau's Chief of Orthopedic Surgery, and Dr. Lawrence Naame, a third year resident on rotation from Thomas Jefferson University Hospital, treated Mr. Rogers. Dr. Dowling recommended surgery which was scheduled for the following day. Dr. Dowling ordered the application of a plaster splint pending the surgery. Unlike a cast, a splint covers only part of an injured limb. Its application immobilizes the injured limb so as to prevent complications from, for example, the broken bone interfering with circulation.

Dr. Naame left the holding room to prepare the splint for application. This required arranging several layers of cotton insulation to be placed under a plaster wrapping product which itself required dipping in tepid or lukewarm water

[ 523 Pa. Page 179]

    and arranging or "reversing" in several layers. When dipped in water, the product reacted exothermically, as it should have.

After preparing the splint in this fashion, Dr. Naame returned to the holding room. There Dr. Dowling held up the injured leg while both physicians applied the insulation and the plaster wrap so as to form a splint on its underside. Mr. Rogers complained of a sensation of warmth. Dr. Dowling assured him this was to be expected. When the splint began to harden, Dr. Dowling lowered the leg and left the room to arrange for Mr. Rogers' admission into the hospital. Mr. Rogers complained to his wife, who was in the holding room, of a burning sensation. She applied ice to the uppermost part of the splint, at the top of her husband's thigh, and left the room to locate Dr. Dowling. She found him, informed him of her husband's complaints, and accompanied him back to the room. At that point, Mr. Rogers simply requested anesthesia should future painful procedures be required.

Prior to surgery the next morning, Dr. Dowling removed the splint. He discovered second and third degree burns on the back of the leg. Although able to undergo the open reduction surgery, Mr. Rogers experienced a longer, more painful recuperative period, requiring a skin graft, therapy, and home nursing for several months.

Mr. and Mrs. Rogers filed a complaint in trespass against Johnson & Johnson, manufacturer of the plaster splint, Lankenau Hospital and Thomas Jefferson University Hospital. The complaint alleged negligence and strict liability against Johnson & Johnson and Lankenau Hospital. It alleged negligence against Thomas Jefferson University Hospital. Johnson & Johnson answered by denying liability and cross-claimed against the hospitals.

At trial, the Rogers' case against Johnson & Johnson consisted of evidence of malfunction, failure to warn, and

[ 523 Pa. Page 180]

    negligence.*fn1 They also presented expert testimony eliminating medical malpractice as the cause of burns.*fn2

Thomas Jefferson University Hospital likewise adduced evidence eliminating medical malpractice as the cause of the plaster's having burned Mr. Rogers. On the other hand, Johnson & Johnson introduced expert testimony indicating that the medical malpractice of the doctors had caused the splint to overheat and to burn Mr. Rogers. The trial court denied all motions for nonsuits and for directed ...

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