For the first time, the California Court of Appeal has addressed the issue of whether a Penrose drain should be treated like a retained sponge or clamp for purposes of a res ipsa loquitur instruction. The answer is, no. In Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, the Second Appellate District held that the trial court did not err in requiring the jury to rely on expert testimony in finding negligence. The presence of a Penrose drain requires a res ipsa loquitur instruction, but with such instruction, negligence must be established by expert testimony.

*Supreme Court denied appellants petition.

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