On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Bischoff, Milmed and Francis. Bischoff, P.J.A.D.
In this negligence/products liability action plaintiffs M. and wife allege that a contraceptive device (condom) marketed under the trade name of "Fourex Natural Skins" was defective and caused the wife to become pregnant and give birth to normal, healthy twin daughters.
Plaintiffs' action was instituted against Schmid Laboratories, the manufacturer of the device, and the retailer, Bruce Pharmacy, alleging breach of warranties, negligence and strict liability. Defendant Bruce Pharmacy, in addition to denying liability, filed a counterclaim against the plaintiff M. alleging negligence in the use of the condom and demanding contribution. Plaintiff filed a motion for summary judgment to dismiss the counterclaim, contending that the husband could not be liable to the wife in negligence because of the doctrine of interspousal immunity and therefore defendant's counterclaim for contribution could not stand. The motion was denied.
At the same time defendant Schmid moved for a summary judgment limiting plaintiffs' claims, discovery and damages to
the alleged wrongful birth excluding all damages for wrongful life, citing Berman v. Allan , 80 N.J. 421 (1979). That motion was granted. Plaintiffs, by leave granted, appeal from both determinations.
The record before us, containing interrogatories and excerpts from depositions, discloses facts from which negligence on the part of M. in the use of the contraceptive device could reasonably be inferred.*fn1 Plaintiff does not contend that this is not so, but argues that since he was having intercourse with his wife in the privacy of the bedroom when the product defect caused the impregnation and resultant damages, his actions are cloaked with interspousal immunity and cannot be the basis for a claim for contribution based upon his alleged negligence. We disagree. In Merenoff v. Merenoff , 76 N.J. 535, the court said:
We do not view this counterclaim as falling within one of the situations where the doctrine continues to have viability. See Tevis v. Tevis , 79 N.J. 422, 426-427 (1979). While some matters or proceedings between a husband and wife within the privacy of the bedroom may remain within the protection of interspousal immunity, it is clear plaintiffs have lifted the veil of secrecy here and place squarely in issue all the facts surrounding their use or misuse of the alleged defective product. The asserted tortious behavior of the husband does not trench upon the
privileged or consensual aspects of married life, Merenoff v. Merenoff, supra 76 N.J. at 558, but disclosure is the unavoidable result of plaintiffs' lawsuit. In a products liability action the details concerning the use or misuse of the product are both relevant and material and may constitute a defense to a claim for damages resulting from harm caused by a defective product. Cartel Capital Corp. v. Fireco of New Jersey , 81 N.J. 548, 562-563 (1980); Cepeda v. Cumberland Engineering Co., ...