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ROGINSKY v. RICHARDSON-MERRELL

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


April 18, 1966

Sidney ROGINSKY, Plaintiff,
v.
RICHARDSON-MERRELL, INC., Defendant

Croake, District Judge.

The opinion of the court was delivered by: CROAKE

CROAKE, District Judge.

The present action is one of over seventy cases assigned to the undersigned involving injuries alleged to have resulted from ingestion of the prescription drug MER/29, which was developed, tested and marketed by the Wm. S. Merrell Company, a division and formerly a subsidiary of the defendant. After a four week trial in the instant case, the first to be tried in this court, the jury responded as follows to the following interrogatories:

 

" Question No. 1: Was the ingestion of the Drug MER/29 by the plaintiff the proximate cause of the injuries of which he complains? Yes

 

"You will answer that question either yes or no. If your response is no, then you are not required to consider any of the following questions. If your answer to Question No. 1 is yes, then you will consider the following.

 

" Question No. 2: Did any negligence on the part of the defendant, as the term negligence has been explained to you in this charge, serve as the proximate cause of the injuries of the plaintiff? Yes

 

"You will answer that question either yes or no, and proceed to Question No. 3.

 

" Question No. 3: Has the plaintiff established the elements of his claim that he was injured as a result of the obtainment by the defendant of the right to market MER/29 by fraud committed upon the Food & Drug Administration in the matter of submission of data? Yes

 

"You will answer that question either yes or no. If your responses to both Question Number 2 and Number 3 have been no, then you need not consider the remaining inquiries. If your response to either has been yes, then you will answer Question No. 4.

 

" Question No. 4: What is the amount of compensatory damages, as that term has been explained to you in this charge, to which you find the plaintiff to be entitled? You will answer by writing the amount. 17,500

 

"Now, if your response to Question No. 2 has been yes, you will consider Questions 5 and 6. If your response to Question No. 2 was negative, then you will proceed no further.

 

" Question No. 5: Do you find that the defendant should respond to the plaintiff in exemplary damages, as that term has been characterized for you in this charge? Yes

 

"You will answer this yes or no. If your response is no, then you need not consider Question No. 6. If your response is yes, then you will answer Question No. 6.

 

" Question No. 6: To what amount of exemplary damages do you find the plaintiff to be entitled? $100,000

 

"You will answer by writing in the amount."

 Before the court for disposition herein are the post-trial motions of the defendant. Since the conclusion of the trial, the court has had the opportunity for a reexamination *fn1" of a transcript of the proceedings. So also, the various arguments raised in the post-trial briefs have been perused. Upon consideration the requests that a verdict be directed for the defendant as to all claims, or a new trial granted, are denied. In the alternative, defendant seeks to establish that the verdict for punitive damages was excessive, apparently urging the requirement of a necessary relationship between that and the compensatory damage award, and requesting that:

 

"If our motions shall be denied, we should like leave to prepare and submit a compilation based on prior determinations showing accepted relationships between compensatory and punitive damages to serve as a guide for the Court."

 The charge of the court directly pertinent to the amount of punitive damages was as follows: *fn2"

 

"Now, assuming you find that exemplary damages should be awarded, you would then reach the question of what their amount should properly be.

 

There is no precise formula by which this question might be answered. In your deliberations you should bear in mind the conditions under which, and the purposes for which, the law permits an award of exemplary damages to be made. You may consider the potentially wide effect of the actions of the corporation and, on the other hand, you may consider the potential number of actions similar to this one to which that wide effect may render the defendant subject. Finally, you should also consider the requirement of the law that the amount of such punitive damages, when awarded, must be fixed with calm discretion and sound reason, and must never be either awarded or fixed in amount because of any sympathy or bias or prejudice with respect to any party to this case." (Minutes - p. 3045.)

 In Reynolds v. Pegler, 123 F. Supp. 36 (S.D.N.Y.1954), aff'd 223 F.2d 429 (2d Cir. 1955) cert. denied, 350 U.S. 846, 76 S. Ct. 80, 100 L. Ed. 754 (1955), Judge Weinfeld denied a post trial motion to set aside a verdict for punitive damages as excessive and spoke as follows upon the standard of review:

 

"The distinction between compensatory and punitive damages determines the legal standards by which the propriety of the amount of the award must be judged. Compensatory damages are what the term implies - an amount, though difficult to ascertain precisely, which indemnifies the plaintiff for the injury and damage suffered by him. But an award for punitive damages, by its very nature and purpose, permits of no such external or arithmetical yardstick. Once a jury has determined the existence of actual malice - or its legal equivalent, reckless or wanton indifference to the rights of others - the jury is empowered, but not required, to penalize the defendants. Given a basis on which to award punitive damages, a jury is necessarily vested with a broad discretion. In imposing the penalty of punitive damages the jury may be said to function in a quasi-judicial capacity and just what sum will vindicate the public interest and act as a deterrent upon him who has offended rests peculiarly within the discretion of the jury as the dispenser of justice. There are, of course, limits upon the jury's power; but unless the amount of the penalty is so clearly excessive as to compel the conclusion that it is the result of passion or prejudice, its award should not be disturbed. The fact that a Court may disagree with the jury's award, or had a Court been sitting as the trier of the fact, it would have awarded a lesser sum, is not the test on a motion to set aside or reduce a verdict on the ground of excessiveness. The Court may not substitute its judgment for that of a jury. In general, the authorities are in accord that it is only when the amount awarded shocks the 'judicial conscience' that the Court is warranted in interfering with the award. This is but another way of saying that before acting the Court must be satisfied that the result is not based upon a rational consideration of the evidence and the proper application of the law." 123 F. Supp. at 38-39.

 Upon most careful consideration, it cannot be said that judicial interference with the amount of the award of punitive damages is warranted and, accordingly, the motion seeking such relief and the request for leave to submit the specified compilation are denied. The latter rests upon the assumption that the ratio between the amount of compensatory and the award of exemplary damages is the determinative factor. However, it does not appear that the New York law *fn3" requires any necessary relationship between the two. *fn4"

 Counsel shall submit a judgment upon notice.


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