The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Roland C. Mracek ("Mracek") brought this action against Bryn Mawr Hospital and Intuitive Surgical, Inc. ("Intuitive") for damages arising out of strict product liability, strict malfunction liability, negligence, and breach of warranty in connection with a prostatectomy*fn1 performed with an operative robot called the "da Vinci" which was manufactured by Intuitive. Presently before this Court is a Motion for Summary Judgment filed by Intuitive. For the reasons set forth below, the Motion is granted with regard to all causes of action.
In October 2004, Mracek had a prostate biopsy performed which resulted in positive results for adenocarcinoma*fn2 of the prostate. Thereafter, in January 2005, Mracek met with Dr. David McGinnis of the Bryn Mawr Urology Group to discuss his options of treatment. Mracek asserts that he informed Dr. McGinnis that he did not suffer with erectile dysfunction, and was quite concerned about erectile dysfunction being a result of any treatment of his prostate cancer. Mracek met again with Dr. McGinnis on March 31, 2005, at which time, Dr. McGinnis informed him that the da Vinci surgical robot ("robot") would be used for the radical prostatectomy, so as to minimize the risk of erectile dysfunction. The surgery was scheduled for June 9, 2005. On this date, Mracek's surgery began with him being put under general anesthesia while the robot was brought in and readied. According to Mracek's Complaint, the surgical team, led by Dr. McGinnis, proceeded part way into the surgery, "taking his bladder down," and "dividing the urachus,"*fn3 when suddenly, the robot starting displaying error messages. The surgical team restarted the robot and was only able to make a small amount of progress before the machine again started displaying error messages. As a result, the surgical team was forced to "undock the robot from its trocars,"*fn4 and attempted to restart it several times. They also attempted to place a call to Intuitive's tech support. A tech representative for the robot subsequently came to the operating room, and attempted to assist the surgical team troubleshoot the problems with the robot, including "repositioning the robot's arms and multiple redocking of the robot." It, however, failed to function.
Dr. McGinnis made a final attempt to use the robot by trying to use the robotic arm to run the camera while he did the rest of the surgery laparoscopically.*fn5 This attempt, however, failed when the machine would not allow the team to manually reposition the arm. As a result of the machine's malfunction, the surgical team abandoned its attempt at a robotic prostatectomy, and brought in the laparoscopic equipment to finish the surgery. Between the time the team abandoned use of the robot and the time the laparoscopic equipment was brought in and utilized, approximately forty-five (45) minutes had elapsed.
One week after the surgery was completed laparoscopically, Mracek was readmitted to the hospital due to a gross hematuria that occurred while he was in a public restroom, which required his daughter to assist him getting to the hospital while blood was pouring out of his genitals. Mracek now contends that, as a direct result of the delay and subsequent laparoscopic procedure, he now suffers from total erectile dysfunction, and suffers daily abdominal pain which prevents him from comfortably sleeping or sitting for an extended period of time. Mracek subsequently filed suit against the Defendants*fn6 for strict products liability, negligence, breach of warranty, and strict malfunction liability in the Court of Common Pleas of Philadelphia. The matter was then removed to this Court on January 17, 2008.
Federal Rule of Civil Procedure 56(c) states that summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." See also Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991). The Court asks "whether the evidence presents a sufficient disagreement to require submission to the jury or whether . . . one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is material if it could affect the outcome of the suit after applying the substantive law. Further, a dispute over a material fact must be 'genuine,' i.e., the evidence must be such 'that a reasonable jury could return a verdict in favor of the non-moving party.'" Compton v. Nat'l League of Prof'l Baseball Clubs, 995 F. Supp. 554, 561 n.14 (E.D. Pa. 1998).
Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Once the moving party has produced evidence in support of summary judgment, the non-moving party must go beyond the allegations set forth in its pleadings and counter with evidence that presents "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Big Apple BMW, Inc. v. BMW of N. Am. Inc., 974 F.2d 1358, 1362-63 (3d Cir. 1992). "More than a mere scintilla of evidence in its favor" must be presented by the non-moving party in order to overcome a summary judgment motion. Tziatzios v. United States, 164 F.R.D. 410, 411-12 (E.D. Pa. 1996). If the court determines that there is no genuine issues of material fact, then summary judgment will be granted. Celotex, 477 U.S. at 322.
1. Strict Products Liability
Intuitive asserts that, since Mracek has failed to submit any expert report that is critical of the da Vinci robot, he cannot meet his burden of proof with respect to any of the theories of liability that he has asserted, including strict liability. We agree, and find that summary judgment should be granted for several reasons, as will be discussed infra.
In Webb v. Zern, 220 A.2d 853, 854 (Pa. 1966), the Pennsylvania Supreme Court adopted § 402A of the Restatement (Second) of Torts as the law of strict products liability in Pennsylvania.*fn7 The Court subsequently established that § 402A "imposes strict liability in tort not only for injuries caused by the defective manufacture of products, but also for injuries caused by defects in their design." Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d 590, 592 (Pa. 1987). In order to bring a products liability action in Pennsylvania, a plaintiff must demonstrate that: (1) the product was defective; (2) the defect existed while the product was in the control of the manufacturer; and (3) the defect was the proximate cause of the plaintiff's injuries. Walton v. Avco Corp., 610 A.2d 454, 458-59 (Pa. 1992).
As noted above, Intuitive argues that Mracek has failed to meet his burden of proof for strict liability because he has not submitted an expert report that is critical of the da Vinci robot. This Circuit has held that expert testimony is not required when the matter under consideration is simple and a lack of ordinary care is obvious and within the range of comprehension of the average juror. Oddi v. Ford Motor Co., 234 F.3d 136, 159 (3d Cir. 2000); Padillas v. Stork-Gamo, Inc., 186 F.3d 412 (3d Cir. 1999). Oddi held that "although expert evidence is generally required in a products liability case ...