Rogers v. Johnson & Johnson Products, Inc.

585 A.2d 1004, 401 Pa. Super. 430, 1990 Pa. Super. LEXIS 3374

• Court: Superior Court of Pennsylvania
• Decided: December 4, 1990
• Docket: 1037
• Status: Published

Opinions

HESTER, Judge:

Johnson & Johnson Products, Inc., appeals from the April 2, 1986 judgment entered by the Court of Common Pleas of Philadelphia County following a jury trial. The jury awarded appellees, Elaine and Price Rogers, damages in the amount of $225,000, to which the court added Pa.R.C.P. 238 delay damages. Appellees instituted this suit to recover for injuries sustained by Price Rogers when a plaster of paris splint manufactured by appellant allegedly malfunctioned and caused a severe burn. We previously filed an opinion reversing this judgment, Rogers v. Johnson & Johnson Products, Inc., 368 Pa.Super. 109, 533 A.2d 739 (1987), holding that a product malfunction theory and a negligence theory were mutually exclusive and that both theories could not be argued to the jury. The supreme court reversed our decision in Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 565 A.2d 751 (1989). Accordingly, we now address the issues remaining in this appeal following remand by our supreme court. We affirm in part, reverse in part, and remand.

Our careful review of the record reveals the following. On Sunday, May 1, 1977, appellee Price Rogers twisted and fractured his leg. His wife, Elaine Rogers, telephoned Dr. John Dowling, M.D., the chief orthopedic surgeon at Lankenau Hospital in the Germantown section of suburban Philadelphia. Dr. Dowling referred them to the Lankenau Hospital emergency room where a third-year resident, Dr. Lawrence Naame, was on duty. Dr. Naame concluded the fracture was severe, and consulted with Dr. Dowling by telephone. Dr. Dowling arrived shortly thereafter and recommended temporarily setting the fractured leg with a splint until he could perform an open reduction the following morning. The fracture was near an artery, requiring the doctors to avoid any risk of puncture. Dr. Dowling administered a pain killing drug and directed Dr. Naame to prepare a plaster of paris cast for the splint. Dr. Naame prepared the cast out of sight in a room adjoining the emergency room that had a sink, and then he and Dr. Dowling placed the splint on the leg. Dr. Naame then left the emergency room while Dr. Dowling held the splint to allow the plaster of paris to cool and set. Dr. Dowling then allowed the splint to rest on the bed while he proceeded to the hospital administration office to admit Mr. Rogers for surgery the following day.

Before Dr. Dowling left the emergency room, Mr. Rogers complained to him about heat from the splint. Dr. Dowling responded that this was normal. Later, after Dr. Dowling left, appellee Price Rogers complained to his wife that the splint was burning him and causing great pain. She left to locate Dr. Dowling and accompanied him back to the emergency room. Dr. Dowling did not remove the splint since he did not consider the situation abnormal and because removing the splint might endanger the leg artery. The following day during the operation, Dr. Dowling discovered second and third degree burns on Price Rogers’ 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.

Appellees filed suit against Johnson and Johnson alleging that its fast-setting plaster of paris (“the product”) malfunctioned thereby causing the burns, or alternatively, that appellant was negligent in not testing the product sufficiently, not monitoring complaints, and failing to give adequate warning that the product could cause severe burns. Appellees also filed suit against Lankenau Hospital and Thomas Jefferson University Hospital, with whom Dr. Naame was in a residency program and on rotation to Lankenau Hospital, alleging that either or both hospitals were negligent in supervising the physicians’ performance. Appellees did not file suit against Dr. Naame or Dr. Dowling. Instead, they attempted to establish that the physicians were not negligent in order to eliminate secondary causes as part of their malfunction theory in their case-in-chief against appellant. Appellant thus was compelled to contest appellees’ evidence eliminating the existence of secondary causes for the burn in order to refute the malfunction theory when, at the same time, the co-defendant hospitals also denied physician negligence. Appellant attempted to join the physicians as third party defendants long after the complaint was filed, but joinder was denied on the basis that appellees would be prejudiced in preparing their case for trial by the additional delay, especially since extensive discovery had been completed.

At trial, Johnson and Johnson contended that it was impermissible to plead both a malfunction theory and a negligence theory in the alternative as a factual matter in the same case. The trial court determined that a party is not required to negate secondary causes prior to arguing a malfunction theory to the jury. Instead, the court concluded it is necessary only to produce evidence which if believed by the jury would negate secondary causes.

At trial, appellant asserted that physician negligence was the cause of the burns. Appellant contended that many external factors, such as the temperature of the water and the thickness of the material used, readily could cause excessive exothermic (heat) build-up in plaster of paris and that all those factors were under the exclusive control of the physicians. The jury rejected all allegations of physician negligence and awarded damages against Johnson and Johnson. Judgment was entered and Johnson & Johnson appealed. On appeal we reversed and held that secondary causes must be excluded as a legal cause prior to the jury considering a malfunction theory. Rogers v. Johnson & Johnson, 368 Pa.Super. 109, 533 A.2d 739 (1987). As noted, supra, the supreme court reversed our holding on this issue and remanded for consideration of the remaining issues in the appeal. Rogers v. Johnson & Johnson, 523 Pa. 176, 565 A.2d 751 (1989).

Appellant now asserts that other instances of trial court error entitle it to a new trial. First, it argues that the trial court erred in admitting into evidence reports of other burn incidents involving a similar, but different, Johnson & Johnson product. Second, appellant argues that appellees improperly were permitted to cross-examine its medical expert regarding competitors’ products because this was outside the scope of his direct testimony when, at the same time, the trial court precluded appellant from offering related evidence from its own expert in rebuttal. Third, appellant asserts that the trial court’s charge was erroneous, contradictory, and confusing. Finally, appellant contends the trial court erred in awarding and calculating Pa.R.C.P. 238 delay damages.

Appellant first argues that the court erred in admitting the report which concerned a dissimilar product that caused injuries which never were established to have occurred under the same or similar circumstances to those circumstances surrounding appellee’s injury. In support, it cites Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 537 A.2d 334 (1988) (en banc). Appellant further contends that appellee repeatedly referred to the report to support an inference regarding the ultimate issue in this case to the effect that the fast-setting plaster of paris malfunctioned thereby causing appellee’s second and third degree burns. Appellant argues that it was prejudiced by the admission of the report and the repeated references to it by appellee for other purposes. Thus, appellant concludes that the relevancy of this report was doubtful, and its prejudicial effect far outweighed its usefulness. See Whitman v. Riddell, 324 Pa.Super. 177, 471 A.2d 521 (1984) (admission of evidence is reversible where admission is erroneous and harmful or prejudicial).

It has long been clear that questions regarding the admissibility or exclusion of evidence are within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. An abuse of discretion requires prejudice, partiality, bias, ill-will, or misapplication of law. Meyers v. Nicholas Homeshield, 384 Pa.Super. 1, 557 A.2d 743 (1989); Kepple v. Fairman Drilling Co., 380 Pa.Super. 52, 551 A.2d 226 (1988). Instantly, ample support exists in the record for the trial court’s decision to admit this report for the limited purpose of demonstrating notice. The report which concerned the Johnson & Johnson extra fast-setting plaster of paris that caused the burns in Texas (“the Texas report”), and the Johnson & Johnson fast-setting plaster of paris which allegedly caused injury to appellee, established that both products were packaged and/or shipped on the same day from the same factory.

While testimony revealed that the products were not from the same production batch and the circumstances surrounding the Texas injuries may not have been identical to those concerning appellee, we find that the trial court reasonably could conclude that the similarities outweighed the differences for the purpose of establishing whether Johnson & Johnson had notice of malfunctions. The production batches were made sequentially and included many of the same raw materials. Further, we note that the trial court excluded numerous other reports of burns that did not involve cold water or share the same package/shipping number. In our view, the trial court’s decision is strictly a matter of judgment. Accordingly, we do not find an abuse of discretion or reversible error by the trial court in admitting the report.

Appellant next contends that appellees and the hospital co-defendants, whose interests were opposed to appellant’s interests, used the Texas report not only for establishing notice but as substantive evidence in their closing arguments. Initially, we note that the trial court gave the standard jury instruction that arguments by attorneys do not constitute evidence. Furthermore, appellant failed to object during or after the final arguments at trial; consequently, this argument is waived.

Next, appellant argues that the trial court not only permitted appellees to exceed the scope of appellant’s direct examination of its expert but also denied appellant the opportunity to offer corresponding evidence in rebuttal from its expert. Appellant argues that as a result, the jury learned only that a competitor’s product, “OCL,” existed and had a greater thickness than the splint applied to appellee, without learning that “OCL” also had an insulating layer as a safety feature to prevent exothermic heat build-up that Johnson & Johnson’s product did not possess. Appellant now claims that the combined result of these rulings prejudiced it. In support, appellant relies on cases in which cross-examination exceeded direct examination, yet rebuttal testimony was not allowed. Woodland v. Philadelphia Transportation Co., 428 Pa. 379, 238 A.2d 593 (1968); Leaphart v. Whiting Corp., 387 Pa.Super. 253, 564 A.2d 165 (1989); Mapp v. Dube, 330 Pa.Super. 284, 479 A.2d 553 (1984).

The record reveals that appellees impeached Dr. Ronald Greene concerning the accuracy of his knowledge regarding the thickness of three or four competing products, including “OCL,” after he admitted that he was familiar with similar competing products and named several of them. The trial court permitted this inquiry over appellant’s immediate objection that this was not relevant and exceeded direct examination, in order to test Dr. Greene’s credibility. Appellant later sought to have its product manager, John Hull, testify regarding the thickness of “OCL” in order to explore its corresponding safety feature. The trial court sustained appellees’ objection to the relevancy of Mr. Hull’s initial testimony on the thickness of “OCL” because the thickness of the product used on appellee was not at issue. Rather than explore that it did not manufacture a product with similar thickness as “OCL” for safety reasons, which the court suggested would be permitted, Johnson & Johnson concluded its direct examination of Mr. Hull after appellees’ objection on relevancy was sustained.

Appellant never argued to the trial court that it was prejudiced by its rulings. Thus, that claim is waived and we will not address it. Dilliplaine v. Lehigh Valley Trust. Co., 457 Pa. 255, 322 A.2d 114 (1974) (concept of “fundamental” trial error abandoned in favor of preservation of error through specific and timely objection.) Furthermore, admission or exclusion of rebuttal testimony is within the sound discretion of the trial court. Mapp v. Dube, supra.

Appellant next argues that the trial court’s charge to the jury was inconsistent, erroneous, and confusing. Specifically, appellant asserts that the court stated to the jury that in asserting their defense, Johnson & Johnson had the burden of proving their claim that physician negligence was the cause of appellee’s injury. Appellant correctly argues that the burden of eliminating secondary causes in establishing a malfunction without a specific defect is a burden of the injured party and not of the defendant. We note, however, that appellant did not specifically object on this basis to the court’s charge. Accordingly, this claim is waived. Pa.R.A.P. 302. Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977); Dilliplaine v. Lehigh Valley Trust Co., supra.

Appellant next contends that the award of Rule 238 delay damages with respect to Mrs. Rogers’ claim based solely on loss of consortium is improper. Appellant asserts that since she did not suffer direct “bodily injury, death or property damage” as required by the rule, and her claim purely is derivative of Price Rogers’ injuries, her claim is inappropriate for an award of delay damages.

This argument recently was rejected on the basis that loss of consortium is a separate and distinct claim to which Rule 238 delay damages attach. See Novelli v. Johns Manville, 395 Pa.Super. 144, 151-152, 576 A.2d 1085, 1089 (1990), where we stated:

In light of the derivative nature of the action for loss of consortium, we are satisfied that loss of consortium is part of the total compensable damages arising from the decedent’s bodily injuries, and we hold that loss of consortium is part of “what was owed” under Craig [v. Magee Memorial Rehab. Ctr., 512 Pa. 60, 515 A.2d 1350 (1986) ].

We find further support for this conclusion by noting that not to allow delay damages for loss of consortium awards would undermine the purpose of Rule 238. As noted above, Rule 238 is designed to encourage responsible approaches to these cases and prevent unreasonable refusals to pay what is owed for tortious injury. Here, Celotex’s refusal to settle delayed compensation to Novelli for both the decedent’s claim and her loss of consortium. We see no reason to let Celotex benefit from this delay.

In summary, we hold that, because loss of consortium is part of the total compensable damages related to the decedent’s injuries, Rule 238 delay damages may be assessed on awards for loss of consortium. Accord Hughes v. GAF Corp., 364 Pa.Super. 311 [528 A.2d 173] (1987) (delay damage award based on molded verdict which included award for loss of consortium).

Finally, appellant argues that since it consistently disputed the amount of delay damages (although not their imposition), the issue of delay damages is still pending. Accordingly, appellant contends that delay damages have yet to be determined fully. Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 443 (1989) (en banc); accord Staats v. Noll, 381 Pa.Super. 162, 553 A.2d 85 (1989) (en banc); Mathis v. United Engineers & Contractors, Inc., 381 Pa.Super. 466, 554 A.2d 96 (1989). “Because the issue of delay damages was pending before the trial court on the date revised Rule 238 was promulgated, it is clear that any such award in the instant case was properly determinable only under the revised rule.” Jistarri v. Fentress, 390 Pa.Super. 209, 212-13, 568 A.2d 618, 620 (1989) (citations omitted). We agree. A hearing clearly is mandated by the revised rule.

Judgment affirmed in part and reversed in part; case remanded for a determination and calculation of delay damages. Jurisdiction relinquished.

BECK, J., files a dissenting opinion.