APPEAL from the Circuit Court of Cook County; the Hon. DAVID
CERDA, Judge, presiding.
MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 28, 1980.
This appeal arises from a suit by Elaine and Wayne Rubright for injuries suffered by Elaine on April 14, 1971. She was injured when a surgical instrument broke and a fragment of the instrument became imbedded in her back during a laminectomy operation. The Rubrights' multicount second amended complaint based in negligence, including res ipsa loquitur, enterprise liability, and strict products liability sought damages from: Rockford Memorial Hospital (hereinafter Rockford), the hospital where the operation occurred; Codman & Shurtleff (hereinafter Codman), the distributor of the instrument; Dr. Dennis F. Fancsali, the operating surgeon; and Rockford Clinic, Ltd., a professional corporation of which Dr. Fancsali was an agent and employee. The case proceeded against Rockford on the theory of res ipsa loquitur and against Codman on that theory as well as a strict liability theory. *fn1 The res ipsa loquitur counts alleged inter alia that the plaintiffs' injuries would not have occurred had Rockford, "exercised the degree of care required in examining the rongeur prior to its use in surgery; and/or had there not existed while the rongeur was within the control of the defendant, Codman, a condition or conditions which made the rongeur unsafe for its reasonably forseeable use considering the nature and function of the rongeur." Strict liability was alleged against Codman on the basis of certain specified design defects, failure to warn, and on the basis that "[t]he rongeur was, in other respects, unsafe for its reasonably forseeable uses."
Rockford filed a third-party indemnity action against Codman and The Lawton Company, the manufacturer of the instrument, and its successors and assigns, Alcon Laboratories, Inc., and the Lawton Company, a division of Seamless Hospital Products Company, a division of Dart Industries (hereinafter these will be collectively referred to as Lawton and individually as Alcon, Dart, and The Lawton Company). Codman also filed a third-party complaint seeking indemnification against Lawton.
The jury returned a verdict against all the defendants in the plaintiffs' original action. Verdicts were also returned in favor of Lawton as to the third-party complaints filed by Codman and Rockford and in favor of Codman in Rockford's third-party action against it. Codman and Rockford have appealed solely from the judgments in favor of Lawton and against Codman and Rockford and the denial of their post-trial motions. Each alleges error in the trial court's failure to enter a directed verdict in its favor or a judgment notwithstanding the verdict and additionally contends that certain evidentiary rulings of the trial court require a new trial on their third-party indemnity action.
The joint trial of the plaintiffs' action and the third-party actions took place over a six-week period and amassed a record of nearly 4,000 pages. Therefore, for the sake of brevity, only testimony relevant to the parties' contentions will be reviewed. Mrs. Rubright consulted Dr. Fancsali for back pain. After examining her, he diagnosed her condition as an acute herniated intervertebral disc. As this condition allowed a portion of the inner material of the disc to bulge up into her spinal canal and press on her nerve, surgery was suggested. The object of the surgery was to remove the soft center of the disc which was causing the bulge. In order to remove the disc center, a tool, known as a seven-inch straight pituitary rongeur, was used. In this type of procedure, the rongeur is inserted into the disc in a closed position and then opened to grasp the soft inner material of the disc in order to either cut it or pull it out with a plier-type action. This particular rongeur was selected for the surgery because a small instrument was needed due to the severely limited space within which to work in Mrs. Rubright's case. Dr. Fancsali testified that he felt the rongeur break during the surgery after he started to close the jaws of the rongeur in order to grasp some of the soft center of the disc. Upon removing the rongeur and examining it, Dr. Fancsali discovered that the superior jaw or blade of the rongeur was missing. After extensive efforts to retrieve the broken fragment, Dr. Fancsali determined that the fragment was imbedded in the hard outer part of the disc and would not migrate. Consequently, he decided to leave the fragment in Mrs. Rubright, as he felt that repeated probing might cause a greater risk of harm. The fragment was subsequently removed by another physician. Dr. Fancsali testified that he examined the rongeur visually and operationally prior to surgery and it appeared in good working condition. Furthermore, he stated that he was familiar with the instrument from long usage and knew that it was not to be utilized on bone. He did not bend or twist the instrument during the operation nor misuse it in any way. He also testified that the hospital owned only two pituitary rongeurs like the subject rongeur.
Martha Parlapiano, whose duty it was to insure that surgical instruments at Rockford were properly handled, stored, cleaned, cared for, and maintained, testified that surgical instruments were inspected and examined at numerous points in the hospital: when cleaned, when selected for a case, in surgery, and before and after surgery. The inspection of a rongeur, she testified, involves a visual examination for misalignment of the jaws or anything unusual about the instrument and an operational examination to insure that it opens and closes properly. Instruments which do not pass one of the aforesaid inspections are sent to the manufacturer for repair by the head nurse or Parlapiano. Parlapiano testified, however, that in the case of the subject type of rongeur, any repairs would be made by Codman, the distributor. She further testified that the hospital records revealed at least a half dozen instances in which pituitary rongeurs, which fit the description of the subject rongeur, were repaired. She could not tell whether the subject rongeur had been repaired or how old it was. Nor did she know how many seven-inch straight pituitary rongeurs were owned by the hospital.
Robert Engler, a vice-president of Codman, testified that the subject rongeur was distributed by Codman but manufactured by Lawton. The Lawton rongeur was made of American 420 steel. He further testified that, at the time that an instrument was received from Lawton, it would be visually and operationally inspected. At this time the Lawton name was buffed off and Codman's name placed on the instrument. The rongeur was then packaged in plastic and stored. It was conceded that because of its practice of removing Lawton's name from the rongeur and because its purchase and sales records were destroyed, there was no way to document that the rongeur was purchased from Lawton. Codman repaired instruments which it distributed according to Engler. Repairs on rongeurs included work on rongeurs which needed to be straightened or sharpened, which were sticky and did not slide, or which were cracked and broken. Codman would replace broken jaws in some instances, Engler testified, although often if a jaw were broken it wouldn't be repaired. The decision whether a particular instrument would be repaired rested solely within Codman's discretion.
Hans Jakobi testified for Lawton. He stated that Lawton did not manufacture a rongeur like the subject rongeur but rather bought them from several small, family run, "cottage industry" firms. These firms, Jakobi testified, receive German 4021 stainless steel in the rough shape of the finished product and milled them into the various component parts of the rongeur. These parts are then heat processed to produce certain specified characteristics: hardness, corrosion resistance, flexibility, and cutting ability. Lawton requires a Rockwell-C of between 42 and 46 in the stainless steel used in the manufacturing of rongeurs in order to insure the proper amount of hardness (tensile strength) and toughness or elasticity (ductile strength). Stainless steel with a Rockwell-C which exceeds 46, Jakobi testified, would be brittle and consequently would produce a rongeur which would be more apt to crack during use. Jakobi also testified that a percentage of its instruments are subjected to tests for hardness, flexibility, and dimension subsequent to the hardening process. Jakobi stated that the neck size on the blade or jaw of the 2 x 10 millimeter subject rongeur should be between .7 to 1.0 millimeters. He also concluded that the subject rongeur was manufactured prior to 1961 because it has a mirror finish and this finish was discontinued prior to 1961.
Five metallurgical experts testified with respect to the metallurgical properties of stainless steel generally and of the stainless steel used in the subject rongeur. Each had examined the rongeur and some had conducted tests on the subject rongeur or on similar rongeurs. Certain uncontested facts emerged from their testimony. First, it was agreed that the metal used in the subject rongeur was clean steel, not metallurgically defective in any way. The composition of stainless steel, according to the experts, allows a particular piece of steel to be tailored to bring out certain desired qualities by altering the heat treatment process. In the case of a seven-inch straight pituitary rongeur, the experts agreed that corrosion resistance, hardness and elasticity were necessary qualities in order to insure a good cutting edge and the ability of the instrument to plastically deform (bend) without breaking. Certain tests performed by the experts revealed that the broken blade of the subject rongeur had a Rockwell-C hardness measurement of 42 1/2 while the mating blade was 45. According to the experts, the hardness of stainless steel is measured by the Rockwell-C test. Hardness is directly proportional to the steel's tensile strength which indicates its ability to resist breaking by a pulling force, while its ductile strength, the ease of deformation or bending, is reversely proportional to the steel's hardness. The experts also agreed from their examination of the fracture surface that the broken blade displayed a ductile overload fracture. A ductile fracture results from a distortion or deformation of the metal.
To clarify the nature of the ductile break, the experts conducted various examinations of the subject rongeur and a variety of tests on similar rongeurs. All agreed that the break was preceded by at least one bend and that a ductile break can be produced from one to 10 or more excursions. *fn2 Dr. Levinson, testifying for Codman, noted that he observed only one bend in the rongeur at the fracture site but also noted that the presence of a single gross bend resulting in the fracture would probably have eliminated evidence of any other kind of break. Drs. Taussig, Rostoker and Gordon conducted further examinations and tests to determine the cause of the break. Taussig testified that upon his initial examination of the rongeur's fractured surface, he could not tell whether there had been more than one excursion. Therefore, he made a replica of the fracture so that he could examine the fracture site under the scanning electron microscope. The rongeur was too large to otherwise be placed under the microscope. From this examination he concluded that the rongeur had to have been bent and restraightened prior to the break.
Rostoker also concluded that the rongeur had to have been bent and restraightened prior to the break although on a completely different basis. Rostoker conducted operational tests on four sample rongeurs of the same type and dimension as the subject rongeur. From these tests, he found that a rongeur could not be broken by a physician performing a laminectomy on soft tissue but that it would be predisposed to failure as a result of a prior bending and straightening. Moreover, he concluded that a series of prior bendings and restraightenings could predispose a rongeur to failure under a normal operational use. Based on these tests, Rostoker concluded that the final force involved in the break was not necessarily a bend and consequently the bend evident in the subject rongeur could have been residual from a prior-existing bending and straightening operation.
Dr. Gordon conducted torque tests on three rongeurs. In his test, two rongeurs bent and one broke. The one that broke had a Rockwell-C hardness of 48 and Gordon admitted this was part of the reason it broke. Gordon also noted that a rongeur could be restraightened after a bend so that no one could detect the bend in the blade.
The ultimate interpretation of the undisputed facts and test results varied. Dr. Gordon, the plaintiffs' expert concluded that two defects existed in the stainless steel of the subject rongeur which contributed to the fracture of the rongeur: (1) insufficient hardness of the metal; and (2) insufficient thickness of the metal near the point of the break. Gordon testified that the steel in the rongeur was identified by an independent laboratory as American 420 stainless steel. *fn3 After examining the metallurgical composition of the steel in the subject rongeur, Gordon concluded that the temperature used in heat processing that steel was below that recommended by the American Society for Metals Handbook for American 420 stainless steel. Due to this fact, the Rockwell-C range of 48-53 ...