Nature of the Case
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Facts
P was undergoing a laminectomy performed by Dr. Somberg (D). During the course of the procedure, the tip or cup of an angulated pituitary rongeur, a forceps-like instrument, broke off while the tool was being manipulated in P's spinal canal. D attempted to retrieve the metal but was unable to do so. After repeated failures in that attempt, he terminated the operation. The imbedded fragment caused medical complications and further surgical interventions were required. P has suffered significant and permanent physical injury proximately caused by the rongeur fragment which lodged in his spine. D sued: (1) D for medical malpractice, alleging that the doctor's negligent action caused the rongeur to break: (2) St. James Hospital, alleging that it negligently furnished D with a defective surgical instrument; (3) Reinhold-Schumann, Inc. (Reinhold), the medical supply distributor which furnished the defective rongeur to the hospital, on a warranty theory, and (4) Lawton Instrument Company (Lawton), the manufacturer of the rongeur, on a strict liability in tort claim, alleging that the rongeur was a defective product. At trial, when all the evidence had been presented, no theory for the cause of the rongeur's breaking was within reasonable contemplation save for the possible negligence of D in using the instrument, or the possibility that the surgeon had been given a defective instrument, which defect would be attributable to a dereliction of duty by the manufacturer, the distributor, the hospital or all of them. The jury returned a finding of no cause as to each defendant. The Appellate panel ordered a new trial. A majority held that the verdict represented a miscarriage of justice and that on the facts of this case it was clear that one of the parties was liable and the jury should have been told that it had to return a verdict against at least one of the defendants. Ds appealed.
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