This post is solely by the non-Reed Smith side of the Blog.
There are lots of great pairings. Bud Abbott and Lou Costello. Paul Simon and Art Garfunkel. Michael Jordan and Scottie Pippen. Michael Scott and Dwight Schrute. Rum and coke. Chocolate and peanut butter. Chocolate and pretzels. Chocolate and strawberries. Chocolate and wine. We think you get the point. But for every great duo, there is a great don’t. Oil and water. Texting and driving. Water and electricity. Toothpaste and orange juice. These are things to stay away from. Now Andrusis v. Microvention, Inc., 2019 Pa. Super. Unpub. LEXIS 4759 (Pa. Super. Dec. 26, 2019), tells plaintiffs not to mix malfunction theory strict liability with medical malpractice negligence.
Plaintiffs’ decedent underwent surgery to repair an aneurysm. Decedent’s surgeon used a microcatheter with defendant’s product. But the product was larger than what was recommended for use with that particular microcatheter. The relevant Instructions for Use contain strict time frames for repositioning once the product is introduced and recommends removal if they cannot be positioned properly within the time period. Because the doctor was using a two devices that were not intended to be used together, he selected his own targeted time period for repositioning. Ultimately, the surgeon could not complete the surgery successfully. Complications occurred and decedent died a day later. Id. at *2-4.
While plaintiffs filed suit against the surgeon, hospital, and the product manufacturer, the only claim actually pursued against the manufacturer at trial was a cross-claim filed by the hospital. Id. at *5. At the conclusion of plaintiffs’ case-in-chief, defendants informed the court they had reached a settlement and would not be providing evidence against the manufacturer, which left the plaintiff with no case as to that defendant. The manufacturer moved for a compulsory nonsuit since plaintiffs presented no evidence of a product defect. It was denied but renewed at the close of defendants’ case at which time it was granted. After a jury verdict in favor of the surgeon and hospital, plaintiffs appealed. Id. at *23-24.
Plaintiffs argued that the jury should have been given the strict liability claim because there was sufficient evidence to support a malfunction theory strict liability claim. The malfunction theory allows a plaintiff to prove a product defect with both evidence of a malfunction and “evidence eliminating abnormal use or reasonable, secondary causes for the malfunction.” Id. at *26. It is a case built on circumstantial evidence and that is why it requires both evidence to show that a malfunction occurred and evidence of no other reasonable causes. Only then will a court allow a jury to infer that a defect caused the injury. Id.
The appellate court presumed that plaintiffs had provided sufficient evidence that a malfunction occurred. Note that the trial court did not so conclude because the claimed product failure was a “rare, but foreseeable risk” and a known possibility could not be evidence of a malfunction. Id. at *28 n.10.
The appellate court focused on the second element of a malfunction theory – other causes. The court held that for plaintiff to pursue a malfunction theory, plaintiff “must present a case free of abnormal use and secondary causes.” Id. at *30 (citation and quotation marks omitted).
[I]f the plaintiff’s theory included facts that the plaintiff was using the product in violation of its directions . . . no reasonable jury could infer that an unspecified defect caused a malfunction when either (1) the more likely explanation is the abnormal use or (2) the facts presented by the plaintiff suggest a cause for the malfunction unrelated to the alleged, unspecified defect.
Id. at *30-31.
In this case, plaintiffs’ entire theory of the case was that the product did not malfunction, but rather it was the surgeon’s negligence, including his failure to follow the product’s directions, that caused decedent’s death. Plaintiffs wanted to rely on the medical malpractice defendants’ defense. Of course the surgeon argued there was no misuse. Plaintiffs argued that if the jury accepted that defense argument, it would have eliminated the alternative cause and therefore they should be allowed to proceed on a malfunction theory. But, Pennsylvania law requires plaintiff’s case be “free of abnormal use and secondary causes” to “establish a prima facie malfunction theory case sufficient to proceed to the jury.” Id. at *31-32. Not true here.
Plaintiffs also argued that pursuing a medical malpractice theory did not preclude them from pursuing the alternative malfunction theory. In principle, they are correct. In application to the facts, not as much. The case plaintiffs rely on is Rogers v. Johnson & Johnson, 565 A.2d 751 (Pa. 1989), in which at trial plaintiff presented evidence that eliminated medical malpractice as the cause of his injury and he proceeded with a malfunction theory case against the manufacturer of a plaster splint. Defendant manufacturer’s expert evidence supported that it was malpractice that caused the injury. The question was whether the malfunction theory should not have been submitted to the jury based on the defense evidence. The Pennsylvania Supreme Court said no: “[W]e believe that so long as the plaintiffs presented a case-in-chief free of secondary causes which justified the inference of a defect in the product, the jury was free to accept their scenario.” Rogers, 565 A.2d at 755.
But Rogers was the exact opposite of plaintiffs in Andrusis, who attempted to “back-door” a malfunction theory claim through defendants’ evidence that failed to materialize because of the settlement. Because a malfunction-based claim is a form of circumstantial evidence of a defect, it is defeated where plaintiff’s own case, as here, contains evidence of a reasonable secondary cause of the malfunction – such as a surgeon’s abnormal use of the product. Plaintiffs attempted to turn their medical malpractice case into a products liability case by relying on a co-defendant doctor to make out the case against the manufacturer. Fortunately, the court saw the ploy for what it was and held plaintiffs to their case-in-chief. So, if you see medical malpractice and malfunction theory together, remember it’s not Bogie and Bacall. Think more Schwarzenegger and DeVito.