The so-called Anderson v. Somberg case typically involves multiple defendants with combined product liability and medical malpractice claims and a shift in the burden of proof so defendants have the burden of persuasion to establish nonliability. A point not examined in the reported case law, however, is how an Anderson determination impacts on the order of closing argument. Because trial attorneys continue to believe that closings and summations can affect the outcome of a trial, this can matter.
In Anderson v. Somberg , 67 N.J. 29 (1975), cert. denied, 432 U.S. 929 (1975), a patient undergoing back surgery was injured when a surgical instrument’s tip broke. Plaintiff alleged that the surgeon negligently broke the instrument by twisting it excessively, that the hospital had not inspected the instrument properly before the surgery and that the manufacturer and seller had supplied a defective instrument. From expert evidence at trial the only possible causes of the instrument’s failure were either a defect in the instrument or improper use. Nonetheless, the jury found for all defendants.
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