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ROGINSKY v. RICHARDSON-MERRELL

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 ...

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