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Paradise this one isn’t.


The way we look at it the defendant got jobbed. It was a ridiculous case (at least as a product liability matter) to start with. The jury agreed and found no product defect.  Then, on appeal, it turns out that the trial judge made an “error” in a jury instruction on a point that the jury never reached. So the plaintiff gets a new trial due to an instructional “error” that, to a reasonable degree of litigation certainty, had nothing to do with the verdict.


That, in a nutshell, is Dolan v. Hilo Medical Center, ___ P.3d ___ 2012 WL 1071464 (Haw. App. March 30, 2012).  It’s a ridiculous product liability case because:

  • The manufacturer-defendant had testimony and a “packing list” for the device kit (consisting of several components) to establish it had shipped the kit with all of the necessary pieces. 2012 WL 1071464, at *13
  • The hospital-defendant admittedly never inventoried the device kit after it arrived, in violation of its own policies.  Id. at *1.
  • This wasn’t the first time something like this had happened at the defendant-hospital.  Id. at *13.
  • The defendant-surgeon, who had a very checkered professional history, commenced plaintiff’s surgery knowing there had been no inventory.  Id. at *1, 3.
  • When, in the middle of surgery, nobody could find essential components (two spinal rods), the manufacturer-defendant offered to have one flown there on an emergency basis in 90 minutes.  Id. at *2.
  • Rather than wait, the defendant-surgeon went ahead, using a cut up a screwdriver as an improvised spinal rod.  Id.
  • “The screwdriver shaft was not intended or approved for human implantation.”  Id. (no kidding).
  • “Following the surgery, [nobody] inform[ed] [plaintiff] that a screwdriver shaft had been implanted in his spine.”  Id.
  • Instead, plaintiff is instructed to “commence physical therapy” as if nothing unusual had happened.  Id.
  • The very next day, the screwdriver, not designed to serve as a spinal rod, shatters.  Id.
  • Over the objections of a nurse (who turned whistle-blower), the medical defendants don’t come clean about what happened.  Id.


The jury gets that case and it hits the surgeon and hospital with a mid-seven figure verdict, including punitive damages against the surgeon.  2012 WL 1071464, at *3.  The jury finds in favor of the manufacturer-defendant, deciding that the device kit wasn’t defective.  Id.  Well, duh.  Obviously, they resolved the disputed question of fact about whether all the pieces of the kit had been shipped in favor of the manufacturer – which had all the evidence.


On appeal, however, it turned out that the judge had made a boo-boo. The trial court gave an out-of-date instruction on “substantial change” – that is, using a screwdriver as a spinal rod:

Here, there is no question that at least part of the “product” was substantially changed or modified, particularly from a lay person’s point of view.  [The surgeon] cut up a screwdriver . . . and inserted it in [plaintiff’s] back. . . .  However, that fact alone should not have dictated a finding that the Kit was not defective, without regard to the jury’s finding on whether the Kit was shipped with or without the titanium rods . If the jury determined that the Kit was shipped without the titanium rods, that determination alone could have supported a finding that the product was defective, notwithstanding [the surgeon’s] actions.  Accordingly, the Circuit Court erred in giving this instruction.

2012 WL 1071464, at *14.


Well, we think that’s a load of … well, let’s say rotten pineapples.  The opinion had just finished explaining that substantial change was an affirmative defense, on which the defendant bore the burden of production.  Id. at 13 (discussing Stender v. Vincent, 992 P.2d 50 (Haw. 2000)).  Nonetheless, under Hawaiian law, “the plaintiff maintains the ultimate burden of proof that the product was dangerously defective when it left the hands of the defendant.”  Dolan, 2012 WL 1071464, at *12 (emphasis added – keep that point in mind).


Why wouldn’t the jury have used its common sense in finding the product not defective?  The “substantial change” point that the court alluded to – using a screwdriver as a spinal implant – wasn’t disputed.  Rather the dispute centered on whether the original shipment was complete.  That issue never involved “substantial change” at all.  If the manufacturer shipped the kit without essential parts, then it simply would have been defective when it “left the hands” of the defendant; forget about substantial change.  The only change after “leaving the hands” of the defendant would be if persons unknown cannibalized the kit.  That was the defense view of the facts.  Thus, for substantial change (that is, something happening after the kit was shipped) ever to become relevant, the plaintiff must have already lost the issue of improper shipment.


Nor was the screwdriver incident – however bizarre it might be from a standard of care perspective – a significant disputed issue of fact.  Only the state of the kit when shipped was in controverted, and as to that, the manufacturer had documentary and testimonial evidence, while the plaintiff had less than nothing, since the hospital admitted never conducting the inventory that was required by its own procedures.


All of this leads us to conclude to a litigation certainty that the jury’s no-defect verdict was based upon its resolution in favor of the defendant of the primary disputed issue – having nothing to do with substantial change – of what was (or wasn’t, but the jury found “was”) originally shipped in the kit.  If the jury had erroneously found substantial change having to do with the screwdriver (as Dolan speculated) it would have first found the product defective (due to missing parts), and then would have held that the defect was non-causal due to substantial change caused by intervening medical malpractice.  But that purported error was belied by how the jury in fact completed the verdict form.


Given how the jury actually rendered its verdict, the purported “substantial change” instructional error was at worst harmless error, involving an issue that the jury could not have reached.  What did Dolan say about harmless error?  Not much, all of one sentence:

Erroneous jury instructions are presumptively harmful, [defendant] makes no argument overcoming the presumption of harm, and we cannot conclude that the Circuit Court’s error in giving this instruction was harmless error.

2012 WL 1071464, at *14 (citation omitted).


Okay … if you say so – but we also find it hard to believe that defense counsel wouldn’t have pointed out that the jury’s “no defect” verdict implies its rejection of the plaintiff’s shipping error theory, without “substantial change” (and thus the erroneous instruction) playing any part in their deliberations.  Once again, a product shipped without necessary components (assuming that happened), would have simply been defective when it left the defendant’s hands, and no amount of substantial change would have changed that.


So we think that the defendant got jobbed in Dolan – deprived of an eminently factually sustainable verdict on the basis of an irrelevant instructional error.  Most states tend to presume jury verdicts are valid and give them the benefit of all doubt.  Maybe Hawaii doesn’t do this.


So what happens next?  Well, we hope that the defendant perfects a further appeal and wins, but if Dolan were remanded in its current form, we’d have to say “probably not much.”  The plaintiff’s substantial verdict against the malpractice defendants was affirmed in all respects, so the plaintiff can collect his entire judgment against them.  A plaintiff only gets one full recovery for the same injury.

Only if the malpractice defendants for some reason can’t pay (bankruptcy? caps?) would the plaintiff need to retry.  Perhaps, after satisfying the judgment, those defendants might bring a contribution action – but on these facts, we question whether that would be a prudent thing to do.