Westphal v. E.I. Du Pont De Nemours & Co.

531 N.W.2d 386, 192 Wis. 2d 347, 1995 Wisc. App. LEXIS 286
CourtCourt of Appeals of Wisconsin
DecidedMarch 2, 1995
Docket93-2493
StatusPublished
Cited by38 cases

This text of 531 N.W.2d 386 (Westphal v. E.I. Du Pont De Nemours & Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Westphal v. E.I. Du Pont De Nemours & Co., 531 N.W.2d 386, 192 Wis. 2d 347, 1995 Wisc. App. LEXIS 286 (Wis. Ct. App. 1995).

Opinions

DYKMAN, J.

Denise Westphal appeals from judgments granting summary judgment motions by E.I. du Pont de Nemours & Company, Inc., and Dr. Joseph Litow, dismissing her complaint. Westphal argues the trial court erred in concluding, as a matter of law, that du Pont was not responsible for her injuries under theories of strict liability and negligence. West-phal alleges she was injured by Teflon1 supplied by du Pont and contained in a temporomandibular joint (TMJ) implant manufactured by Vitek, Inc., which was surgically placed in her jaw. Westphal also contends the trial court erred when it dismissed her claim against Dr. Litow because the statute of limitations had run. We conclude that because the Teflon was substantially altered by Vitek and Westphal failed to show that du Pont knew or should have known that Teflon was dangerous as used in the TMJ implant, du Pont is not responsible, as a matter of law, under either a strict liability or negligence theory. We also conclude that [356]*356Westphal's negligence action against Dr. Litow was untimely commenced. Consequently, we affirm.

BACKGROUND

1. Development of the Temporomandibular Joint Interpositional Implant

In the late 1960's, Dr. Charles Homsy, a former employee of du Pont, became interested in creating medical implants after his daughter was born with a congenital hip defect. He developed a material called Proplast, which he believed would greatly improve the attachment of implants to the body. Proplast consists of several substances, including Teflon. Teflon is manufactured exclusively by du Pont and has a wide variety of commercial and industrial uses. Proplast is a spongy material which is made by combining Teflon with other materials, including carbon fibers and sodium chloride, and subjecting them to an eight-step manufacturing process. The process changes Teflon's physical properties. While Teflon is hard, slippery, nonabsorbent and solid, Proplast is semisoft, absorbent, spongy, and highly porous. Dr. Homsy obtained a patent for Proplast in 1976.

Du Pont knew that Dr. Homsy intended to use Teflon for medical uses. When Dr. Homsy sought to purchase Teflon in 1967, du Pont informed him that Teflon is an industrial grade product not manufactured for medical use. Du Pont stated that while it conducted tests to protect the ordinary users of its product, it did not perform the studies necessary to determine if Teflon was appropriate for medical and surgical uses. Du Pont stated that it was reluctant to sell Teflon to Dr. Homsy, noting the mixed results obtained in earlier attempts to use Teflon in medical implants. Du Pont [357]*357agreed to sell Teflon to Dr. Homsy if he would study the appropriateness and safety of Teflon in medical implants. Dr. Homsy agreed.

Dr. Homsy founded Vitek, Inc., in 1969 to design, manufacture and sell medical devices. Vitek performed studies and determined that Teflon was a useful implant material. Du Pont again contacted Vitek in 1977 and reiterated its concerns about using Teflon in implants. Du Pont never approved the use of Teflon in medical implants.

In 1983, the United States Food and Drug Administration (FDA) authorized the sale of Vitek's TMJ Interpositional Implant. The TMJ implant was made with Proplast and fluorinated ethylene propylene (FEP). Over the years, du Pont made several sales of Teflon to Vitek in bulk form, supplied in containers of fifty pounds or more. Du Pont had no other relationship with Vitek and was not involved in the design, manufacture or sale of Vitek's products.

2. Westphal's Medical History

Westphal alleges that in November 1982, Dr. Joseph Litow, an oral and maxillofacial surgeon, negligently performed a surgery to repair her left TMJ. In October 1983 and March 1984, Dr. Litow inserted Silastic implants in her left and right TMJ's. West-phal's last visit with Dr. Litow was in October 1984.

The Silastic implants were removed in December 1984 by Dr. Eugene Messer and replaced with Proplast implants manufactured by Vitek. In January 1986, Dr. Steven Sewall, who took over Dr. Messer's practice, removed the Proplast implants because they were fragmenting and replaced them with temporary Silastic implants. These Silastic implants were removed in [358]*358July 1986 by Dr. Sewall. He performed two further operations in June 1987.

Westphal commenced suit to recover damages for injuries she claims resulted from medical malpractice on the part of her physicians and on theories of strict liability and negligence on the part of the TMJ implant manufacturers. Westphal claims, among other things, that the bones around her jaw have eroded and an opening has developed exposing her brain. The trial court dismissed Westphal's claims against du Pont and Dr. Litow on summary judgment motions. This appeal followed.

STANDARD OF REVIEW

We review a grant of summary judgment de novo by applying the same standards as employed by the trial court. Brownelli v. McCaughtry, 182 Wis. 2d 367, 372, 514 N.W.2d 48, 49 (Ct. App. 1994). We first examine the complaint to determine whether it states a claim, and then the answer to determine whether it presents a material issue of fact. Id. If they do, we then examine the evidence offered by the moving party to determine whether that party has established a prima facie case for summary judgment. Id. If the moving party has, we then look to the opposing party's evidence to determine whether there are any material facts in dispute which entitle the opposing party to a trial. Id. at 372-73, 514 N.W.2d at 49-50.

DU PONT'S LIABILITY

1. Strict Liability

Westphal contends the trial court erred when it ruled, as a matter of law, that du Pont was not respon[359]*359sible under a theory of strict liability. According to Westphal, her experts' opinions have raised factual issues as to whether the Teflon was defective or unreasonably dangerous and whether the Teflon was substantially changed by Vitek. We disagree.

Westphal's complaint states a claim for liability under theories of strict liability and negligence. Du Pont's answer presents a material issue of fact in that it denies any responsibility for her injuries. We next examine the evidence offered by du Pont in support of its motion to determine whether it has made a prima facie case for summary judgment. If so, we examine Westphal's evidence to see if any disputed facts remain entitling her to a trial.

Wisconsin adopted Restatement (Second) of Torts 402A (1965), imposing strict liability on sellers or manufacturers of products, in Dippel v. Sciano, 37 Wis. 2d 443, 459, 155 N.W.2d 55, 63 (1967). Section 402A provides,

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

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Bluebook (online)
531 N.W.2d 386, 192 Wis. 2d 347, 1995 Wisc. App. LEXIS 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westphal-v-ei-du-pont-de-nemours-co-wisctapp-1995.