## Facts

- Henry Anderson underwent a laminectomy at St. James Hospital performed by neurosurgeon Dr. Harold Somberg.
- During surgery, the tip (“cup”) of an angulated pituitary rongeur broke off inside Anderson’s spinal canal.
- The surgeon could not retrieve the fragment and terminated the operation; the retained metal caused serious complications, additional surgery, and permanent injury.
- Anderson sued: (1) Dr. Somberg for negligent use of the instrument, (2) the hospital for negligently supplying a defective instrument, (3) the distributor on warranty grounds, and (4) the manufacturer on strict products liability for a defective rongeur.
- Expert testimony conflicted on whether the break resulted from negligent handling (e.g., twisting/excess force) or a defect in the instrument.
- The first jury returned a verdict for all defendants (“no cause of action”); the Appellate Division reversed as a miscarriage of justice and ordered a new trial.

## Issues

1. When an unconscious, faultless surgical patient is injured by a broken instrument and all potentially responsible defendants are before the court, may the jury exonerate all defendants.
2. Whether, under these circumstances, the burden shifts to each defendant to prove non-culpability to avoid liability.

## Decision

- The New Jersey Supreme Court affirmed the order for a new trial and required specific jury instructions for retrial.
- The court held it was impermissible, on these facts, for a jury to absolve all defendants; the jury must find at least one defendant liable unless all defendants prove their own non-culpability.
- The court directed a res ipsa loquitur–type approach adjusted for multiple defendants: the occurrence itself supports an inference that negligence or defect attributable to at least one defendant caused the injury.
- Certiorari was denied by the U.S. Supreme Court.

## Legal Principles

- Where an unconscious, faultless patient suffers an injury during surgery from an occurrence that ordinarily does not happen absent negligence or a product defect, an inference of wrongdoing arises.
- When all parties who could reasonably have caused the harm (e.g., surgeon, hospital, manufacturer, distributor) are joined, the risk of nonpersuasion on causation and fault allocation shifts from plaintiff to defendants.
- Each defendant must come forward with proof of its own non-culpability; any defendant that fails to exculpate itself may be found liable.
- A “no liability for all defendants” verdict is improper when the evidence supports that at least one joined defendant must be responsible.

## Conclusion

The court required a retrial with instructions that the surgical mishap permitted an inference of negligence or defect and that defendants, not the faultless patient, must bear the burden of separating themselves from responsibility; if that showing is not made by all, at least one defendant must be held liable.


Anderson v. Somberg, 338 A.2d 1 (N.J. 1975), cert. denied, 423 U.S. 929 (1975)