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Malawy v. Richards Manufacturing Co.

OPINION FILED DECEMBER 9, 1986.

RICHARD MALAWY, PLAINTIFF-APPELLEE,

v.

RICHARDS MANUFACTURING COMPANY, DEFENDANT AND CROSS-DEFENDANT-APPELLANT (ST. ELIZABETH'S HOSPITAL OF THE HOSPITAL SISTERS OF THE THIRD ORDER OF ST. FRANCIS, DEFENDANT AND CROSS-PLAINTIFF-APPELLANT).



Appeal from the Circuit Court of St. Clair County; the Hon. Richard Goldenhersh, Judge, presiding.

JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Defendant/cross-defendant, Richards Manufacturing Company, appeals from a judgment of the circuit court of St. Clair County which (1) found it and defendant/cross-plaintiff, St. Elizabeth's Hospital, liable for breach of implied warranties of merchantability and fitness for a particular purpose, and (2) entered summary judgment in favor of defendant/cross-plaintiff, St. Elizabeth's Hospital, on the issue of implied indemnity. Defendant/cross-plaintiff, St. Elizabeth's Hospital, appeals from the judgment finding it liable to plaintiff, Richard Malawy, for breach of implied warranties of merchantability and fitness for a particular purpose.

The facts are as follows. On July 4, 1976, the plaintiff, a 32-year-old autobody mechanic, suffered fractures to his right hip through the base of the neck of the femur and to the shaft of the right femur. The femur-shaft fracture was unstable because it was compound and comminuted. Due to the severity of plaintiff's injuries, he was transferred from a hospital in Breese to St. Elizabeth's Hospital in Belleville.

Dr. Killian Fritsch, an orthopedic surgeon, became plaintiff's treating physician at St. Elizabeth's Hospital. Prior to treating plaintiff, Dr. Fritsch examined X rays of plaintiff's right leg. After doing so, Dr. Fritsch was of the opinion that the most critical problem facing plaintiff was that the hip fracture would develop into a nonunion.

On July 9, 1976, Dr. Fritsch performed surgery on plaintiff's right leg, using the open reduction technique to join both the hip and the femur-shaft fracture. Dr. Fritsch installed bone plates on each fracture. A Richards-Hirschorn heavy-duty compression plate was installed on the femur-shaft fracture. The bone plates used in surgery were supplied by St. Elizabeth's Hospital, and plaintiff's hospital bill included the cost of these bone plates.

Plaintiff developed a low-grade infection while in the hospital. Although he was discharged from the hospital on July 25, 1976, he was readmitted three days later due to this infection. He was discharged again on August 20, 1976.

Plaintiff was walking on crutches and taking antibiotics when Dr. Fritsch saw him on September 20 and November 1, 1976. The X rays taken on November 1 showed that the hip fracture had almost completely healed and that the femur-shaft fracture was healing. Dr. Fritsch therefore permitted plaintiff to begin walking on one crutch. Bearing weight on a fracture facilitates healing by pressing the bone ends together. When X rays taken on December 13, 1976, showed that the femur-shaft fracture had apparently healed, Dr. Fritsch instructed plaintiff to begin using a cane. The prescription for antibiotics was also discontinued at this time.

On or about January 24, 1977, plaintiff informed Dr. Fritsch that he was experiencing pain in the joints of his hip, knee, and ankle. On January 25, 1977, Dr. Fritsch took X rays and discovered that the Richards plate was bent to a 10-degree angle. Plaintiff was instructed to resume using two crutches.

On February 19, 1977, plaintiff was once again admitted to the hospital due to pain in his right leg. Upon discovering that the Richards plate had broken, surgery was performed on the right leg to remove the plate and to reunite the fracture. The fracture was reunited by driving a Zickle nail across the fracture site, with a bone graft from the condyles of the femur being placed between the bone ends. Dr. Fritsch also removed fibrous union from the fracture site. Fibrous union occurs prior to bony union. Although there was bone formation at the fracture site when surgery was performed, complete bony union had not taken place. The pieces of the Richards plate were taken into custody by St. Elizabeth's Hospital for analysis.

X rays taken on April 4, 1977, showed "a lot of new bone formation." Since the fracture line was still visible in the May 2, 1977, X rays, Dr. Fritsch told plaintiff to begin bearing weight on the right leg in an attempt to get the bones to grow together. X rays taken on August 13 and September 17, 1977, showed progressively stronger bony union. On September 17, plaintiff was instructed to begin using a cane. Although the fracture appeared to be solid on later X rays, plaintiff continued experiencing pain related to the fracture. When Dr. Fritsch ceased treating plaintiff in December 1978, plaintiff had yet to achieve complete bony union of the femur-shaft fracture. The femur-shaft fracture did eventually heal after four surgeries.

Plaintiff commenced the instant action against both defendants on June 3, 1980. His complaint alleged that the failure of the Richards plate that was installed on his femur-shaft fracture caused him undue suffering. After subsequent amendments, plaintiff set forth the following theories of liability against both defendants: (1) strict liability in tort for allowing an unreasonably dangerous bone plate to be installed on plaintiff's right femur, and (2) breach of the implied warranty of merchantability for allowing a bone plate which was unfit for ordinary purposes to be attached to plaintiff's right femur, and (3) breach of the implied warranty of fitness for a particular purpose for allowing a bone plate which was unfit for the particular purpose of uniting a compound, comminuted femur-shaft fracture to be attached to plaintiff's right femur.

The following expert testimony was admitted at trial. Although Dr. Fritsch refused to express an opinion as to the integrity of the instant bone plate, he believed that the primary reason for the nonunion of plaintiff's femur-shaft fracture prior to the plate's breaking was the infection plaintiff had while in the hospital. Dr. Fritsch explained that even a low-grade infection, such as the one plaintiff had during convalescence, can contribute to nonunion because it changes the chemistry at the situs of the fracture.

Dr. William Simmons, who was treating plaintiff at the time of trial, testified that he had reviewed plaintiff's medical records and X rays concerning the femur-shaft fracture prior to testifying. In Dr. Simmons' opinion, union of plaintiff's femur-shaft fracture was progressing normally until the January 25, 1977, X rays, which showed the 10-degree bend in the bone plate. In response to a hypothetical question which assumed (1) that it takes an orthopedist one year from the date of a compound, comminuted femur-shaft fracture to determine whether or not union is going to take place, (2) that union of plaintiff's femur-shaft fracture appeared to be progressing normally prior to the bone-plate break, and (3) that plaintiff began partial weight bearing upon the fracture on November 1, 1976, Dr. Simmons stated that he was extremely suspicious of the instant bone plate's integrity. Dr. Simmons further testified that it was not possible to install the instant bone plate without it coming into contact with surgical instruments.

Dr. Simmons admitted that he was not an expert on the properties of metals and also admitted that there was no guarantee that the femur-shaft fracture would have achieved union if the bone plate had not broken. However, Dr. Simmons testified that he believed that the four surgeries performed after the bone plate broke would not have been necessary if the plate had not broken and that plaintiff's current physical impairment would not have been as severe.

Dr. John Patrick Crotty, a radiologist experienced in taking and interpreting X rays of bones and metallic objects, testified that the femur-shaft fracture was apparently healing normally up until the time the bone plate broke. In an oblique X ray taken on July 28, 1976, Dr. Crotty noted a comma-shaped dot darker than the areas of the screw holes. Although he did not see this dot in any of the other X rays taken prior to the breaking of the bone plate, Dr. Crotty interpreted this dot as a flaw in the bone plate.

Prior to trial, Dr. Crotty examined the instant bone plate and X-rayed it with a cobalt teletherapy unit and a standard X ray unit. Although this was the first time he had done so to detect a flaw in a bone plate, he had on previous occasions interpreted X rays of gun barrels, metal boiler rods, and live ammunition for this purpose. After doing so, he noticed a small zone of increased density in the lower margin of the bone-plate break. Dr. Crotty believed this lower margin of the bone plate had been compressed into the stainless steel surrounding it when it was manufactured. Dr. Crotty stated that this should not be present in a bone plate. In Dr. Crotty's opinion, these X-ray findings, combined with the fact that the bone plate broke where the comma-shaped dot appeared in the July 28, 1976, X rays, established a metallurgical flaw in the bone plate. As further support for this conclusion, Dr. Crotty was of the opinion that if the bone-plate break was caused by the femur-shaft fracture rather than a defective bone plate, the bone-plate break would have been symmetrical and smooth rather than asymmetrical and rough. Dr. Crotty also believed that if the bone plate had broken due to stress from the femur-shaft fracture, it would not have broken above the fracture line as did the instant bone plate. In Dr. Crotty's opinion, the bone plate would never have broken above the fracture line absent a defect in the integrity of the plate. Based upon his findings and the representations of Richards concerning the instant bone plate, Dr. Crotty believed that the instant bone plate was unfit for its intended purpose.

Dr. Imogene Baswell, a biomedical metallurgist for defendant Richards, testified that she examined the instant bone plate under a microscope and found fatigue striations. Fatigue striations result when a load or stress, such as that resulting from the femur-shaft fracture, is applied, removed, and reapplied. This phenomenon is referred to as cyclic loading. Apparently, in her opinion, the bone-plate break originated in a screw hole located above the femur-shaft fracture line. Although Dr. Baswell found no inclusions (i.e., foreign material) in the plate which could result in a weakening of the metal, she did observe a scratch on the plate which intersected the bone-plate break. She believed that this scratch, in combination with the fatigue striations, could have contributed to the bone-plate break. Dr. Baswell disagreed with Dr. Crotty's earlier statement that one of the possible reasons for the alleged defect being present in the July 28, 1976, X rays but not in subsequent X rays prior to the bone-plate break was a loss of volume in the metal after the July 28 X rays. Dr. Baswell stated that her opinion was based on the fact that the contact between the plate and the screw at the break was not sufficient to cause such loss of volume.

Dr. David Felbeck, a mechanical engineer whose professional specialty is the analysis of metallurgical failures, testified that the bone plate broke due to fatigue caused by cyclic loading. He explained that cyclic loading caused gradual propagation of a crack in the bone plate which apparently originated from two locations around a screw hole located immediately above the femur-shaft fracture line. During his examination of the plate, Dr. Felbeck noted three visible scratches which pre-existed the bone-plate break. He believed that these scratches would have a profound effect upon the bone plate's fatigue strength. According to Dr. Felbeck's calculations, the comma-shaped dot which Dr. Crotty saw in the July 28, 1976, X rays was actually the edge of the screw hole where the fatigue striations originated. Dr. Felbeck believed that this dot was nothing more than a drill hole. Dr. Felbeck found no voids or inclusions in the metal. He explained that X rays of the bone plate were unnecessary because there would be no voids in a forged-metal bone plate. In Dr. Felbeck's opinion, the bone plate was not defective and was entirely fit for its intended purpose.

Dr. William G. Allen, an orthopedic surgeon who had installed about 2,000 bone plates in his career, testified that the purpose of a bone plate is to hold the bones together while they heal. He stated that a bone plate is not meant to take the place of bone in terms of weight bearing. During his years of practice he had seen several broken bone plates. It was his opinion that the nonunion of the femur-shaft fracture and plaintiff's weight bearing on his right leg placed the bone plate under stress sufficient to cause fatigue and breakage. In Dr. Allen's opinion, the instant bone plate was fit for its intended purpose and performed in the manner that was expected and intended.

Dr. Sherwyn Wayne, an orthopedic surgeon who examined plaintiff at defendant Richards' request, testified that plaintiff's femur-shaft fracture had healed with good result and that he believed plaintiff could perform any type of gainful employment which he could have performed prior to the injury. Dr. Wayne believed that the surgeries plaintiff underwent after the bone-plate break would have been necessary without the bone-plate break.

Plaintiff testified that due to his injuries he could no longer perform the automobile body work he previously performed because the conditions of his knees will not allow him to squat or kneel. Plaintiff also testified that he scrupulously followed Dr. Fritch's instructions as to weight bearing on his right leg prior to the bone-plate break. Plaintiff further claimed that he did not know he had a right to sue defendant Richards for the malfunctioning of the bone plate until September 1978.

At trial special interrogatory number one was submitted to the jury. It solicited the jury's answer to the following interrogatory:

"Do you, the Jury, find that the bone plate in question was unreasonably dangerous at the time it left the control of the Defendants and that the condition was a proximate cause of the Plaintiff's injuries?"

In response to this interrogatory, the jury found that the instant bone plate was not unreasonably dangerous when it left the manufacturer. In addition, the jury returned a verdict in favor of plaintiff and against defendants, awarding damages in the amount of $606,910.06. Pursuant to the jury's response to special interrogatory number one, the trial court dismissed the strict liability counts against each defendant but allowed the award to stand on the warranty theories.

On appeal, defendant Richards contends that: (1) the jury's finding that the bone plate was not unreasonably dangerous precludes a finding of liability based upon either warranty theory; (2) the trial court should have dismissed the warranty counts because plaintiff failed to give defendant Richards sufficient notice of his intention to file an action based upon warranty; (3) the trial court erred in excluding certain evidence and in admitting other evidence; (4) the trial court erred in giving certain jury instructions and in refusing others regarding the warranty theories; (5) the portion of the jury verdict pertaining to future medical expenses is excessive; and (6) the trial court should have allowed defendant Richards' motion for change of venue after trial. In its appeal, St. Elizabeth's Hospital urges as grounds for reversal substantially the same issues as are relied upon in issues (1) and (4) raised by defendant Richards regarding liability to plaintiff. On cross-appeal, defendant Richards contends that the trial court erred in granting the motion of defendant St. Elizabeth's Hospital for summary judgment on the issue of implied indemnity.

Defendants Richards and St. Elizabeth's Hospital contend that the jury's finding that the bone plate was not "unreasonably dangerous" precludes a finding of warranty liability. Specifically, it is urged that to sustain liability on a theory of implied warranty, a defect in a product must exist and that such a defect, according to prevailing Illinois implied-warranty law, means that the product is "unreasonably dangerous."

• 1-3 It is well settled in Illinois that in order to recover on the basis of strict liability in tort, a plaintiff must establish (1) that the injury or damage resulted from a condition of the product, (2) that the condition was an unreasonably dangerous one, and (3) that the condition existed at the time it left the manufacturer's control. (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 623, 210 N.E.2d 182, 188.) As a basis of recovery for the breach of an implied warranty of merchantability, a plaintiff must establish (1) a sale of goods, (2) that the seller of the goods is a merchant with respect to those goods, and (3) that the goods were not of merchantable quality (i.e., unfit for the ordinary purposes for which such goods are used). (Ill. Rev. Stat. 1977, ch. 26, par. 2-314; Great Container Corp. v. R.H. Bishop Co. (1982), 111 Ill. App.3d 1068, 1073, 445 N.E.2d 19, 23; see also Polelle and Ottley, Illinois Tort Law at 550-52 (1985).) To prove breach of an implied warranty of fitness for a particular purpose, a plaintiff must show (1) a sale of goods, (2) that the seller had reason to know of any particular purpose for which the goods are required, (3) that plaintiff, as buyer of the goods, was relying upon seller's skill or judgment to select suitable goods, and (4) that the goods were not fit for the particular purpose for which they were used. Ill. Rev. Stat. 1977, ch. 26, par. 2-315; Crest Container Corp. v. R.H. Bishop Co. (1982), 111 Ill. App.3d 1068, 1073-74, 445 N.E.2d 19, 23; see also Polelle and Ottley, Illinois Tort Law at 550-52 (1985).

• 4 Although it has been recently stated that strict liability in tort "`is essentially the liability of implied warranty divested of the contract doctrines of privity, disclaimer, and notice,'" (Nave v. Rainbo Tire Service, Inc. (1984), 123 Ill. App.3d 585, 592-93, 462 N.E.2d 620, 625, quoting Dunham v. Vaughan & Bushnell Manufacturing Co. (1967), 86 Ill. App.2d 315, 333), the nature of the improper conduct on the part of the manufacturer which must be shown before liability is imposed is not the same under both theories. The theory of strict liability in tort imposes liability upon the manufacturer of goods only if there was a "defect" when they left the manufacturer's control. On the other hand, a manufacturer is liable for the breach of an implied warranty if the goods are either unmerchantable or are unfit for the particular purpose for which they are intended to be used when they leave the manufacturer's control. They need not be shown to contain a "defect."

The relationship between a "defect" in a product and liability for breach of an implied warranty as to such product has been described as follows:

"It is unfortunate that the warranty law has been so influenced by the tort law. With respect to negligence and strict tort, it is logical to require that there be a defect in the goods. In the case of warranty, it should be sufficient to impose liability that there has been a breach of warranty. In many cases, the breach of warranty consists of the presence of a defect that prevents the goods from being used. In other cases, the breach consists merely of failing to conform to the contract's standard. For example, when the seller delivers a red table instead of the green table required by the contract there is clearly a breach of warranty. Yet the red table was not defective in any intelligent sense of the word ...


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