Roland C. Mracek v. Bryn Mawr Hospital

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2042
ROLAND C. MRACEK,
Appellant
v.
BRYN MAWR HOSPITAL;
INTUITIVE SURGICAL, INC.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 08-cv-00296)
District Judge: Honorable Robert F. Kelly
Submitted Under Third Circuit LAR 34.1(a)
January 15, 2010
Before: SCIRICA, Chief Judge, BARRY and SMITH, Circuit Judges
(Opinion Filed: January 28, 2010)
OPINION
BARRY, Circuit Judge.
Roland Mracek appeals from the District Court’s grant of summary judgment
against him in this product liability case. We will affirm.

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I.
On June 9, 2005, Mracek underwent a prostatectomy after he was diagnosed with
prostate cancer. His surgeon intended to use the “da Vinci robot,” which Mracek claimed
was designed, manufactured, and sold by Appellee Intuitive Surgical, Inc. Mracek
alleged that the robot malfunctioned during the surgery and displayed “error” messages.
The surgical team attempted to make the robot operational, but was unable to do so. A da
Vinci representative came to the operating room to assist but could not make the robot
functional. Mracek’s surgeon used laparoscopic equipment instead of the robot for the
remainder of the surgery. One week later, Mracek suffered a gross hematuria and was
hospitalized. He now has erectile dysfunction, which he had not suffered from prior to
the surgery, and has severe groin pain.
Mracek filed a complaint in state court against Bryn Mawr Hospital and Intuitive
Surgical, stating claims of strict product liability, strict malfunction liability, negligence,
and breach of warranty. Bryn Mawr Hospital was voluntarily dismissed, and Intuitive
Surgical removed the case to the District Court. On March 11, 2009, the District Court
granted Intuitive Surgical’s motion for summary judgment. Mracek timely appealed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332, and we have
jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order granting summary
judgment is plenary. Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211

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(3d Cir. 2009); see Fed. R. Civ. P. 56(c).
III.
Mracek argues that the District Court improperly granted summary judgment on
his strict malfunction liability claim. Mracek does not contest the Court’s rulings on his
other three claims. See Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 535 n.11
(3d Cir. 2007) (issues not briefed are deemed waived).
Generally, to establish a claim for strict liability, “a plaintiff must demonstrate,
inter alia, that the product was defective, that the defect caused the plaintiff’s injury, and
the defect existed at the time the product left the manufacturer’s control.” Barnish v. KWI
Bldg. Co., 980 A.2d 535, 541 (Pa. 2009); see Restatement (Second) of Torts § 402A.
When a plaintiff is unable to adduce direct proof of a defect, the malfunction theory of
liability permits him or her to prove defect with circumstantial evidence. Barnish, 980
A.2d at 541. To do so, a plaintiff must produce “evidence of the occurrence of a
malfunction and . . . evidence eliminating abnormal use or reasonable, secondary causes
for the malfunction.” Id. (internal quotations and citation omitted). “[B]y presenting a
case free of ‘abnormal uses’ by the plaintiff and free of ‘other reasonable secondary
causes,’ a plaintiff can establish through inference from circumstantial evidence the
second and third elements of a 402A case, that the alleged defect caused the injury (as
opposed to another cause) and that the defect existed when it left the manufacturer’s
control (as opposed to developing after the product left the manufacturer’s control).” Id.

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at 542.
Importantly, the malfunction theory does not relieve a plaintiff of his or her burden
to present evidence creating a genuine dispute of material fact on each element in order to
survive summary judgment. Rather, the malfunction theory simply permits a plaintiff to
demonstrate these elements through circumstantial, instead of direct, evidence. Id. at
546-47.
The District Court held that Mracek did not offer any evidence to eliminate
reasonable, secondary causes for the malfunction of the robot or to demonstrate that the
malfunction caused his injury. Mracek contends that the Court erred in so holding
because he would offer his own testimony and testimony from two treating physicians,
including the surgeon who performed the procedure and his urologist who would testify
about his pre- and post-operative condition. Although he did not submit any expert
reports, Mracek argues that it was unnecessary to do so because his treating physicians
were not retained in anticipation of litigation, see Fed. R. Civ. P. 26(a)(2)(B), and because
the alleged defect is obvious and easily understood by a jury given that the robot
displayed “error” messages and was unable to complete the surgery, see Padillas v. Stork-
Gamco, Inc., 186 F.3d 412, 415-16 (3d Cir. 1999) (expert evidence may be unnecessary
where “testimony and pictures may enable the jury to clearly see the construction of the
machine and the manner of its use”).
However, separate and apart from whether summary judgment was proper because

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The “Operative Report” describes the “malfunction” of the da Vinci robot, but does1
not discuss any cause of the malfunction. (App. at 81-83.) The medical records note
Mracek’s erectile dysfunction, but his urologist did not opine on the cause of that
condition. See, e.g., id. at 92 (“[Mracek] had very successful laparoscopic radical
prostatectomy several months ago. . . . His only problem at this time is erectile
dysfunction.”).
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Mracek failed to produce any expert reports, it surely was proper because he failed to
demonstrate a genuine dispute of material fact. Most importantly, there is no record
evidence that would permit a jury to infer Mracek’s erectile dysfunction and groin pain
were caused by the robot’s alleged malfunction. See Barnish, 980 A.2d at 542 (“The1
courts have noted that while the plaintiff need not demonstrate the actual product defect,
the plaintiff ‘cannot depend upon conjecture or guesswork.’”) (quoting Dansak v.
Cameron Coca-Cola Bottling Co., 703 A.2d 489, 496 (Pa. Super. Ct. 1997)).
Accordingly, because Mracek did not “introduce evidence from which a rational finder of
fact could find in [his] favor,” Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d
Cir. 2005), the District Court properly granted summary judgment against him.
IV.
We will affirm the judgment of the District Court.

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