Cafazzo v. Central Medical Health Services, Inc. , 542 Pa. 526 ( 1995 )

CAPPY, J.,

dissenting:

I am deeply troubled by the majority’s opinion and therefore must respectfully dissent.

My first point of concern is with the primacy given by the majority to the law of our sister states. The majority’s reason for subordinating our case law to that of other jurisdictions is unclear. Relying on the decisions of other state courts is a wise course of action where we are taking an initial venture into an area of law; yet, that is not the case here. In this Commonwealth, we are fortunate to have an extensive and well-established body of law defining which defendants may be considered “sellers/suppliers” within § 402A of the Restatement (Second) of Torts. See, e.g., Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977);¹ Coyle v. Richardson-Merrell, Inc., 526 Pa. 208, 584 A.2d 1383 (1991). My objection to relying on the law of our sister states is not merely an academic one. In failing to take cognizance of the independent genesis of our case law, the majority has blithely ignored that our law is not necessarily compatible with that of our sister states.²

In addition to the unexplained deference to the law of foreign jurisdictions, the majority has also distorted our established case law. In analyzing the Francioni test, the majority has presented a muddled view of the test’s purpose and an imperfect application of the test’s prongs.

First, the majority has presented conflicting views on the purpose of the Francioni test. The majority initially states that the Francioni test is applicable only after the defendant’s status as a “seller/supplier” has been determined. Maj. op. at p. 533-534. (“The test was posited by this Court in Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977), to determine whether a particular supplier of products, whose status as supplier is already determined, is to be held liable for damages.” Maj. op. at p. 534 (emphasis supplied).) Yet, immediately following that statement, the majority acknowledges that the Francioni test is the method for determining who is a “seller/supplier.” (The Francioni Court concluded that “a lessor of hauling equipment could properly be considered a supplier after the application of a four part inquiry....” Maj. op. at p. 534 (emphasis supplied).) I am worried that these contradictory statements could lead to confusion about the proper role for Francioni.

In addition to the arguably conflicting views on the purpose of the Francioni test, the majority’s application of that test is far from faithful. The first example of the majority’s misapplication of Francioni is with its analysis of the first prong of that test. The first prong of Francioni requires this Court to examine whether the defendant is in the marketing chain of the product. Francioni, 472 Pa. at 362, 372 A.2d at 739. The majority, ostensibly applying this test, concludes that the defendants are not amenable to strict liability because “medical personnel and hospitals are already subject to liability, albeit only where the quality or quantity of the services they provide may be called into question.” Maj. op. at p. 535. This answer is a non-sequitur; the majority has sidestepped, rather than answered, the pertinent query of whether doctors and hospitals are in the marketing chain of this prosthesis. Furthermore, the majority’s new version of the first Francioni prong is no improvement on the old test. This new test will not advance our analysis as to whether a certain defendant is amenable to strict liability, but instead will thwart it. The majority’s test will exclude from strict liability those defendants which may be amenable to causes of action other than strict liability; it seems not to matter to the majority whether the plaintiff in the case before the court actually has that “other” cause of action available to it. I find this “test” perplexing for I can think of no entity which would not be excluded under the test fashioned by the majority. Thus, what purpose would this new “test” serve other than to eradicate strict liability?

Second, the majority also distorts the Francioni prong which directs the Court to ascertain whether this defendant is in a better position than the consumer to prevent the circulation of defective products. The majority commences its analysis of this point by recognizing that the focus of this inquiry is on whether there is “some ongoing relationship with the manufacturer from which some financial advantage inures to the benefit of the latter and which confers some degree of influence on the [putative seller].” Musser v. Vilsmeier Auction Company, 522 Pa. 367, 374, 562 A.2d 279, 282 (1989). The majority, however, rapidly loses sight of its objective. It deduces that since the defendants here have an extensive list of products at their disposal, as did the defendant in Musser, then the defendants here should also be held immune from strict liability as was the defendant in Musser. This distortion of Musser could have frighteningly far-reaching implications. Such reasoning would lead to the absurd result that a department store, with an inventory of tens of thousands of items, would be less likely to be held strictly liable than the local, family-run convenience store with its modest inventory. Such a “test” does not advance the goals of strict liability, but rather perverts them.

I am gravely concerned that the majority’s opinion will have an unwanted and adverse impact on our strict liability law. In an effort to reach its result in the area of medical services, the majority has failed to advance with caution. I agree with the majority that this area deserves “more examination than has yet been afforded this issue.” Maj. op. at 538. Unfortunately, such an examination has not been presented and I am, therefore, compelled to dissent.

1 . The Francioni test requires the Court first to examine whether holding a particular entity strictly liable makes a member of the marketing chain available to the injured party for redress. Second, we look to whether applying strict liability would provide an incentive to safety. Third, we ascertain whether the defendant is in a better position than the consumer to prevent the circulation of defective products. Finally, we inquire as to whether the defendant can distribute the cost of compensating for injuries resulting from the defective product by charging for it in his business. Francioni, 472 Pa. at 368-369, 372 A.2d at 739; see also Coyle, 526 Pa. at 216-217, 584 A.2d at 1387. After applying these four factors to the defendant at bar, the Court then is able to determine whether the defendant is a “seller/supplier” as a matter of law.

2 . Furthermore, the exaltation of the law of our sister states cannot be supported by the bare assertion that the test enunciated in Francioni, supra, does not speak to the peculiar considerations attendant to the medical industry. We had no difficulties employing the Francioni test to determine that a pharmacist could not be held strictly liable as a “seller/supplier” of an allegedly defective prescription drug. See Coyle, supra.