The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
Presently before the Court in this personal injury diversity
suit by Nancy Perlman are two motions for summary judgment filed
by Sparta Surgical Corporation ("Sparta Surgical") and Sparta
Olsen Electrosurgical, Inc. and one motion for summary judgment
filed by Sparta Surgical, individually. Because the motions
center on the same core facts, the Court will address all three
motions in this one Opinion. To avoid confusion, the Court, when
discussing Sparta Olsen and Sparta Surgical together, will refer
to the two companies as "the Sparta Group." Otherwise, the Court
will refer to the companies individually as Sparta Olsen and
Sparta Surgical, as appropriate. In sum, the Court will deny each
motion for summary judgment. I. INTRODUCTION
Recognizing that many of the following facts are in dispute,
the Court nonetheless understands the case as follows. Perlman
injured her hand while performing surgery on a patient at Virtua
Memorial Hospital Burlington County ("Virtua"). Specifically, the
electrosurgical device she was using somehow malfunctioned and
electrocuted and burned Perlman's hand. Though she completed the
surgery with other equipment, the condition of her hand grew
progressively worse and it became apparent that she would suffer
permanent injury. One possible cause of the malfunction is that
the insulation on the cord attached to the surgical device itself
the 6-B Olsen cord, manufactured by Olsen Electrosurgical,
which later became Sparta Olsen was so deteriorated that it
left Perlman exposed to a live current of electricity. Hence,
Perlman has brought product liability claims against Sparta Olsen
and its parent, Sparta Surgical.
The motions by Sparta Surgical and Sparta Olsen pertain mostly
to the warnings, if any, that accompanied the 6-B cord. The
Sparta Group claims it included two warnings with the 6-B cord.
In support, the Sparta Group points to the testimony of Susan
Dubois, who worked at Olsen and then Sparta Olsen. Dubois deposed
that she included two warnings with every 6-B cord that she
packaged. One warning read as follows:
WARNING FOR PATIENT SAFETY & SURGEON SAFETY
TAKE ALL PROPER PRECAUTIONS AS ELECTROSURGERY MAY BE
DANGEROUS Inspect all electrosurgical instruments and
accessories prior to their use in order to assure the
integrity of the insulation. Double-checking each
device can prevent avoidable patient/surgeon "burns".
Inspect any plugs and wire connections for any
cuts, breaks, shorts or loose wires.
Do not use a device if you observe any chips,
cuts or holes in the insulation material
Avoid unnecessary or prolonged activation. Activate
only when touching or immediately next to the point
Protect against avoidable injury by establishing a
protocol for device examination and maintenance.
DO NOT USE A DAMAGED INSTRUMENT OR CABLE!
The other warning testified to by Dubois was in the form of a
rectangular package label that read "OEI. Olsen Electrosurgical
Inc. Reusable/Non-Sterile/Autoclaveable. Up to 20 Uses. 6-B."
Contrary to the testimony of Dubois are the testimonies of Glee
Baker and Donna Forrest. Both were employees of Virtua at the
time of Perlman's injury and both had responsibilities for
ordering and tracking surgical equipment such as the 6-B cord.
Baker, who received the 6-B cord in its bag but out of the
shipping box, deposed that the label on the bag itself did not
have any care or sterilization information on it. Baker further
deposed that there were not any inserts with the 6-B cord when
she received the bag. Forrest, who generally received the 6-B
cord in her department before sending it on to Baker, testified
that although Virtua followed the sterilization procedures
suggested by Sparta Olsen or Olsen, she never saw the warnings
Sparta claims were included and never saw any information
regarding the maximum number of uses for each cord. Forrest was
not with Virtua at the time the 6-B cord that malfunctioned was delivered to Virtua. Rather, Forrest started
for Virtua in the year 2000 and was familiar with the care
necessary for the operating equipment that Virtua ordered.
When presented with a warning at her deposition that referred
to a minimum number of uses for the 6-B cord, Forrest explained
that had she seen such a warning she would have tracked the use
of the cord and also would have called Olsen to get
clarification. Specifically, Forrest explained that a maximum,
not a minimum, is the most important number and that she would
need clarification of such a warning so that she could understand
how to safely track the cord.*fn1 Forrest did testify,
however, that she was aware of the importance of inspecting and
sterilizing cables such as the 6-B cord.
Regarding actual failure of the 6-B cord, Sparta Olsen was
aware of at least one occurrence. In particular, an FDA, "Adverse
Event Report" described an incident that occurred about November
4, 1999 as follows: "Insulation on the cautery cord split and the
drape on the left side of the [patient] caught on fire. Assist
surgeon patted down flames. Water was also poured on site. Doctor
burned both hands." There is no evidence that Sparta Olsen
changed its warnings or product instructions after this report.
The only other documented incident of cord failure is, of course,
the one at issue in this case. II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." FED. R. CIV. P. 56(c). In deciding
whether there is a disputed issue of material fact, a court must
view the facts and all reasonable inferences in a light most
favorable to the nonmoving party. Id. at 250; Anderson v.
Consol. Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002).
The moving party always "bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of the `pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party
bears the burden of persuasion at trial, however, "the burden on
the moving party may be discharged by `showing' that is,
pointing out to the district court that there is an absence of
evidence to support the nonmoving party's case." Id. at 325.
The non-moving party "may not rest upon the mere allegations or
denials of" its pleadings and must present more than just "bare
assertions, conclusory allegations or suspicions" to establish
the existence of a genuine issue of material of fact. FED. R.
CIV. P. 56(e); Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir.
1989) (citation omitted). "A party's failure to make a showing that is `sufficient to
establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial' mandates the entry of summary judgment." Watson v.
Eastman Kodak Co., 235 F.3d 851, 857 (3d Cir. 2000) (quoting
Celotex, 477 U.S. at 322).
The Court will deny each of the three motions for summary
judgment filed by Sparta Surgical and Sparta Olsen. The Court's
reasoning will be set forth as follows. First, the Court will
discuss the Sparta Group's argument that its warnings were
adequate as a matter of law. Simply put, such issues are normally
for the trier of fact to decide and this case does not prevent an
opportunity for exception. Second, the Court will address the
arguments the Sparta Group has put forward in support of its
position that any failure to warn on its part was not the
proximate cause of Perlman's injury. The overarching reason for
the Court's rejecting them is that whether a particular act,
omission, or circumstance was the proximate cause of an injury is
a question for the jury. Additionally, the arguments set forth by
the Sparta Group are unsupported by New Jersey law.
Third, the Court will discuss the Sparta Group's two arguments
that it had no duty to warn of the dangers associated with the
6-B cord. The Court is not persuaded by either of Sparta Group's
arguments on this point. Fourth, the Court will discuss the Sparta Group's contention that the record cannot support an award
of punitive damages. Whether punitive damages are appropriate is
typically a jury question and a jury could find, based on the
present record, that punitive damages are appropriate. Finally,
the Court will dispense with two related arguments from Sparta
Surgical: (1) that it is not liable for the acts of its
subsidiary, Sparta Olsen, and is thus entitled to summary
judgment on all claims against it, and (2) that the Complaint
does not allege a product liability claim against it. Sparta
Surgical has failed to meet its initial burden on summary
judgment with respect to the first argument and the allegations
set forth in the Complaint clearly allege product liability
claims against Sparta Surgical.
As it pertains to the current motions, Perlman's case against
the Sparta Group is that it failed to adequately warn of the
dangers associated with the 6-B cord. Perlman's product claims
are brought pursuant to New Jersey's Product Liability Act, N.J.
Stat. Ann. § 2A:58C-2 ("PLA"). Her burden of proof is not
significantly different than any other tort plaintiff. The PLA
imposes liability on a manufacturer or a seller for failing to
provide adequate warning or instructions with a product that
caused a plaintiff's harm. Id.. A failure to provide adequate
warnings is often likened to a defect in a product's design.
See Butler v. PPG Indus., Inc., 493 A.2d 619, 621 n. 2 (N.J.
Super. App. Div. 1985) (citing Feldman v. Lederle Labs.,
479 A.2d 374, 385 (N.J. 1984)). To prevail on a claim for failing to
adequately warn, a plaintiff must establish that (1) the product
did not contain an adequate warning; (2) the inadequacy in the
warning existed when the product left the defendant's control; (3) the inadequate
warning caused injury to the plaintiff; and (4) the plaintiff was
a reasonably foreseeable user of the product. Cf. Zaza v.
Marquess & Nell, Inc., 675 A.2d 620, 629 (N.J. 1996).
A. Adequacy of the Warnings with the 6-B Cord
The Sparta Group argues that it is entitled to summary judgment
on Perlman's failure to warn claim because the warnings
accompanying the 6-B cord were adequate as a matter of law. The
Court rejects this argument because it is disputed whether there
was a warning that reached Virtua in the first place and whether
the warning was adequate. The standard by which the adequacy of a
warning is to be assessed is governed by the PLA as follows:
An adequate product warning or instruction is one
that a reasonably prudent person in the same or
similar circumstances would have provided with
respect to the danger and that communicates adequate
information on the dangers and safe use of the
product, taking ...