- The manufacturer-defendant had testimony and a “packing list” for the device kit (consisting of several components) to establish it had shipped the kit with all of the necessary pieces. 2012 WL 1071464, at *13
- The hospital-defendant admittedly never inventoried the device kit after it arrived, in violation of its own policies. Id. at *1.
- This wasn't the first time something like this had happened at the defendant-hospital. Id. at *13.
- The defendant-surgeon, who had a very checkered professional history, commenced plaintiff’s surgery knowing there had been no inventory. Id. at *1, 3.
- When, in the middle of surgery, nobody could find essential components (two spinal rods), the manufacturer-defendant offered to have one flown there on an emergency basis in 90 minutes. Id. at *2.
- Rather than wait, the defendant-surgeon went ahead, using a cut up a screwdriver as an improvised spinal rod. Id.
- “The screwdriver shaft was not intended or approved for human implantation.” Id. (no kidding).
- “Following the surgery, [nobody] inform[ed] [plaintiff] that a screwdriver shaft had been implanted in his spine.” Id.
- Instead, plaintiff is instructed to “commence physical therapy” as if nothing unusual had happened. Id.
- The very next day, the screwdriver, not designed to serve as a spinal rod, shatters. Id.
- Over the objections of a nurse (who turned whistle-blower), the medical defendants don't come clean about what happened. Id.
Here, there is no question that at least part of the “product” was substantially changed or modified, particularly from a lay person's point of view. [The surgeon] cut up a screwdriver . . . and inserted it in [plaintiff’s] back. . . . However, that fact alone should not have dictated a finding that the Kit was not defective, without regard to the jury’s finding on whether the Kit was shipped with or without the titanium rods . If the jury determined that the Kit was shipped without the titanium rods, that determination alone could have supported a finding that the product was defective, notwithstanding [the surgeon’s] actions. Accordingly, the Circuit Court erred in giving this instruction.
2012 WL 1071464, at *14.
Erroneous jury instructions are presumptively harmful, [defendant] makes no argument overcoming the presumption of harm, and we cannot conclude that the Circuit Court's error in giving this instruction was harmless error.
2012 WL 1071464, at *14 (citation omitted).
Only if the malpractice defendants for some reason can’t pay (bankruptcy? caps?) would the plaintiff need to retry. Perhaps, after satisfying the judgment, those defendants might bring a contribution action – but on these facts, we question whether that would be a prudent thing to do.