## Facts

- Ira Royer underwent a total knee replacement at a hospital, during which the hospital supplied and implanted a prosthetic knee.
- Royer later experienced increased pain; physicians determined the prosthesis was defective.
- In a subsequent surgery, the defective prosthesis was removed and replaced.
- The Royers initially sued the manufacturers; after bankruptcy proceedings affected that litigation, they filed suit against the hospital.
- The Royers alleged the hospital was strictly liable for providing a defectively designed prosthesis in an unreasonably dangerous condition, and Rachel Royer sought loss of consortium.
- The Royers relied on the hospital’s separate billing and alleged profit on the prosthesis to argue the hospital functioned as a seller in the stream of commerce.

## Issues

1. Whether a hospital that supplies and implants a prosthetic device as part of surgery, and bills for the device, is “engaged in the business of selling” the device and therefore subject to strict products liability under Restatement (Second) of Torts § 402A.
2. Whether a loss-of-consortium claim may proceed when the underlying strict-liability claim is dismissed.

## Decision

- The New Hampshire Supreme Court affirmed dismissal for failure to state a claim.
- The court held the hospital was not “engaged in the business of selling” prosthetic devices when furnishing an implant incidental to medical treatment.
- Because the strict-liability claim failed, the derivative loss-of-consortium claim also failed.

## Legal Principles

- Strict products liability under § 402A applies only to a seller “engaged in the business of selling such a product.”
- In mixed transactions involving services and goods, strict products liability does not apply where the essence of the transaction is the provision of professional services and any product supplied is incidental to those services.
- A hospital’s separate billing for, and revenue from, a medical device used in treatment does not by itself transform the hospital into a commercial seller for § 402A purposes.
- Expansion of strict liability beyond established common-law categories is generally for the legislature or for situations already recognized by state common law.
- Loss-of-consortium claims are derivative and cannot survive absent an actionable underlying tort.

## Conclusion

The court treated the hospital–patient relationship as primarily one for professional medical services, with the implant supplied only as part of that treatment, and therefore refused to impose strict products liability on the hospital as a seller; dismissal of the strict-liability claim required dismissal of the derivative consortium claim.


Royer v. Catholic Med. Ctr., 144 N.H. 330, 741 A.2d 74 (N.H. 1999)