The opinion of the court was delivered by: SIFTON
Plaintiff, Nancy C. Lindsay, brought this action against defendant, Ortho Pharmaceutical Corp. ("Ortho"),
manufacturer of the Ortho-Novum 2 mg. oral contraceptive, asserting that the defendant drug manufacturer was liable for injuries she suffered in January 1971 when she had a cerebrovascular accident ("CVA") or stroke allegedly as the result of her ingestion of defendant's oral contraceptive pills. Plaintiff, Bruce H. Lindsay, Nancy's now-estranged husband, also asserted liability against defendant Ortho for loss of his wife's support and services. After a trial, lasting over two weeks, a jury returned a verdict for both plaintiffs, in the amount of $ 750,000 for Nancy Lindsay and $ 75,000 for Bruce Lindsay. This court entered judgment reflecting the jury's verdict. Defendant now moves, pursuant to Fed.R.Civ.P. 50(b), for judgment notwithstanding the verdict, or in the alternative, pursuant to Fed.R.Civ.P. 59, for a new trial.
On this motion defendant advances many of the same arguments which were advanced during the course of the trial, both to the court and to the jury. To the extent that the court has previously, during the course of the trial, addressed the legal arguments which defendant now asserts, this memorandum will not repeat at length the explanations for rulings already part of the record. To the extent defendant on this motion makes arguments based on the evidence introduced at trial, which either were or could have been made to the jury, the court is guided by the well-established principles that, on a motion for judgment notwithstanding the verdict, the court must view the evidence, including any inferences which may be drawn therefrom, in the light most favorable to the party who secured the jury verdict, See, e. g., Pritchett v. Rosoff, 546 F.2d 463, 466 (2d Cir. 1976); Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970); Oresman v. G. D. Searle & Co., 388 F. Supp. 1175 (D.R.I.1975), and that a motion for judgment notwithstanding the verdict may be granted only when, without weighing credibility, there can be but one reasonable conclusion as to the proper judgment. See, e. g., Simblest v. Maynard, supra; Zavala v. Citicorp Services, Inc., 426 F. Supp. 241 (S.D.N.Y.1976); Oresman v. G. D. Searle & Co., supra. Further, the court does not propose to set forth in detail the underlying law or the facts developed at trial, except as they pertain directly to defendant's motion.
The arguments advanced by defendant will be considered in the order in which they appear in defendant's Memorandum in support of its motion.
Defendant's first point is that it is entitled to judgment in its favor because the evidence at trial established that, in defendant's words, "the prescribing physicians, Harris and Van Son, were fully apprised of the dangers reported to be associated with the use of the drug." Implicitly or explicitly suggested during the course of this first point (and others) is a variety of additional propositions which deserve explicit examination, such as that plaintiff
rather than defendant bears the burden of establishing that the doctors she came in contact with were ignorant of the matters not disclosed in the defendant's warnings and, thus, "relied" on the inadequate warnings; that only the state of knowledge of the prescribing physicians, Harris and Van Son, need be examined and not the state of knowledge of the other doctors plaintiff came in contact with, in particular, the doctors to whom she was referred for numbness and tingling sensations which developed after she commenced taking the pill; and that Doctor Van Son was the doctor at the office of Planned Parenthood, to which plaintiff resorted to obtain a renewal of her prescription, whose state of knowledge or ignorance of the dangers associated with use of the drug was relevant to the issues on trial.
Initially, it bears noting that, as defendant accurately states at one point, the question of the physician's knowledge of the dangers associated with the drug is relevant to the issue of proximate causation, an issue on which plaintiff bore the burden of proof as the jury was advised. The jury was not instructed, and the court was not asked to instruct the jury, that there was an element of reliance separate and apart from causation on which plaintiff also bore the burden of proof. It is further clear from the case law and it is reasonable, given the nature of this type of action, that the element of causation may be established prima facie by proof that in the light of what a licensed physician could reasonably be expected to know given his education and training, the relevant warnings were inadequate to apprise the medical profession in general of the dangers associated with use of the drug. See Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1281 (5th Cir.), Cert. denied, 419 U.S. 1096, 95 S. Ct. 687, 42 L. Ed. 2d 688 (1974); McEwen v. Ortho Pharmaceutical Corp., 270 Or. 375, 528 P.2d 522, 538-39 (1974). In other words, where there is evidence that the physicians who, it reasonably can be forseen, may have occasion either to prescribe or otherwise to come in contact with use of the drug have not been adequately warned, the courts have understandably shifted to the defendant the burden of coming forward with some evidence that despite the inadequacy of the warnings, the particular physicians involved had information from sources other than the drug company of the undisclosed risks involved in use of the drug. Once the defendant comes forward with such evidence, then the burden of persuasion is again on the plaintiff to establish that the doctors claiming full knowledge did not, in fact, possess it or did not bring it to bear or were nevertheless led by the inadequate warnings to take steps which caused injury to the plaintiff.
Viewed in the light of these general principles, it is clear that the jury in this case had before it sufficient evidence from which to conclude that plaintiff had sustained her burden of proving that the inadequate warnings accompanying the pill proximately caused plaintiff's CVA, despite evidence from two of her doctors, Doctors Harris and Van Son, concerning what they knew about the risks of oral contraceptives. With respect to Doctor Harris, the doctor who initially prescribed the pill for plaintiff and thereafter permitted her to resume taking the pill after she had displayed what other witnesses identified were the signs of susceptibility to the kind of injury by the drug which led to her stroke, perhaps the first thing which needs be said is that his testimony presented issues of credibility for the jury to resolve. At the time Doctor Harris testified in his deposition, which was read into evidence, he was a defendant in the suit and had some interest in establishing that he was not ignorant of information available to him concerning the risks associated with oral contraceptives.
Moreover, enough of Doctor Harris' deposition was read into evidence to permit the jury to apply in a meaningful way to Doctor Harris' fencing with plaintiff's attorney the court's instructions not objected to concerning the manner of evaluating the credibility of witnesses whose testimony is presented by deposition. Most prominently before the jury as a question of credibility was why, if the doctor in fact knew, as the defendant now argues he did, of the association between oral contraceptives and thromboembolic disorders caused by an increased tendency towards blood clotting, he persisted in prescribing the pill for Mrs. Lindsay after she displayed signs of thromboembolic disorder while under his care.
However, of equal importance in assessing Doctor Harris' testimony is the recognition that the doctor did not testify that he had "full information" concerning the risks associated with the pill. Instead, he testified rather cryptically (1) that he was aware (as he believed the package inserts said) that "thromboembolic disorders were under investigation but . . . there was no evidence to support this at the time", and (2) that he had advised Mrs. Lindsay (and therefore presumably himself believed) that "they (the pills) have been said to cause blood clotting . . . (but) that the evidence for this is extremely debatable."
With respect to this testimony, there was ample basis for the jury to infer, first, that the "thromboembolic disorders" concerning which Doctor Harris testified were no more than the reported instances of the more common and less serious thrombophlebitis, the existence of which was acknowledged by the drug company in its package inserts, even if in what may be characterized as an understated and even misleading manner in view of the broader implications of those reports, See, infra, and second, that Doctor Harris was not aware of the number of more serious CVA's of the type suffered by plaintiff which had been reported to the drug company prior to the doctor's prescription of the drug for Mrs. Lindsay. With regard to the second aspect of Doctor Harris' state of knowledge, as indicated by the above-quoted testimony, the jury could easily have decided on the evidence before it that Doctor Harris' conclusion that the causal relation between the pill and blood clotting was "extremely debatable" itself evidenced the effectiveness of the drug company's literature in watering down and downplaying the effect of reported studies concerning thrombophlebitis and the implications of those studies, as well as other information in the drug company's possession, with regard to the relationship of the pill to thromboembolic phenomena in general.
In other words, the jury could reasonably have concluded that, even if Doctor Harris did have some independent knowledge concerning the risks associated with the pill, the effect of that independent knowledge had been negated by defendant's warnings themselves, specifically by the manner in which those warnings "watered down" or unduly minimized the significance of the information of which the doctor had independent knowledge. In that connection it should be noted that the assertion that defendant had "watered down" or unduly minimized what was known about the risks associated with the pill was one, if not the primary theory presented by plaintiff at trial in support of her claim of inadequate warnings.
As previously indicated, it is also of significance in assessing the question whether plaintiff sustained her burden of proving causation with respect to Doctor Harris to note that, while Doctor Harris did refer plaintiff to another physician, Doctor Vastola, at the time in February 1966 when she reported the symptoms of a thromboembolic phenomenon having the same underlying mechanism, although evidenced to a much lesser degree as that which resulted in her CVA, Doctor Harris did not discontinue Mrs. Lindsay's use of the pill as a result of her report of tingling and numbness sensations. Indeed, Doctor Harris did not discontinue Mrs. Lindsay's use of the pill until March 1967, when he did so for what proved to be only a short period of time, and not because of the tingling and numbness sensations which she had experienced, but because of the fact that she was exhibiting brown facial blotches, a side effect identified in the package insert as associated with the use of the pill.
A defendant drug manufacturer should not, of course, be held responsible for what simply may have been negligent conduct on the part of the prescribing physician. However, the evidence in this case, particularly the evidence indicating that Doctor Harris did go so far as to send Mrs. Lindsay to another doctor for consultation as to the origins of her tingling and numbness sensations and the evidence indicating that Doctor Harris did advise Mrs. Lindsay to discontinue her use of the pill after he had identified her complaint of brown facial blotches as a side effect of the pill, would reasonably support a finding that Doctor Harris' failure to take Mrs. Lindsay off the pill as a result of her experiences of tingling and numbness sensations, and his allowing Mrs. Lindsay to resume use of the pill in September 1967 was not due to any negligence on the doctor's part but rather was due to a lack of full and important information as to the possible side effects of oral contraceptives.
In addition to and independently of the question of Doctor Harris' knowledge of the risks associated with the pill, the jury might reasonably have found that evidence of a causal relationship between the inadequate warnings and plaintiff's eventual stroke existed because of her efforts to obtain medical advice from Doctor Vastola (a neurologist to whom she was sent by Doctor Harris on account of her reported tingling and numbness sensations, Doctor Weingarten (her general physician whom she also consulted about her symptoms) and Doctor Ryan (a neurologist called in by Doctor Weingarten). Prima facie the jury could have found (and did according to a special interrogatory submitted to them on this issue) that evidence of the inadequacy of the warnings established causation in the absence of rebuttal testimony concerning what these doctors knew about the connection between the pill plaintiff had been taking and the symptoms of thromboembolic disorder concerning which she consulted them. No rebuttal testimony with regard to the level of information of these doctors was offered and defendant's claim that it was plaintiff's obligation to call those doctors on her case is contrary to sound reason and the case law cited above, with which defendant was familiar through its own involvement in the litigation which gave rise to it. See McEwen v. Ortho Pharmaceutical Corp., supra, 528 P.2d at 538; Reyes v. Wyeth Laboratories, supra at 1281. Clearly, the jury was entitled to find on the evidence that, had these doctors been advised through the Physicians Desk Reference ("PDR") volumes or other source of information emanating from the drug company of, Inter alia, the reports which the drug company had received of CVA's suffered by users of the pill, the "treating" doctors would have recognized the significance of plaintiff's past use of the pill and the dangers of her continued use in time to prevent the CVA which gave rise to this lawsuit. See the discussion in Section II, Infra.
Finally, the court rejects defendant's argument that the evidence establishes that Doctor Van Son, the doctor at Planned Parenthood who actually saw Mrs. Lindsay and gave her a new prescription for Ortho Novum 2 mg., had full knowledge of the risks associated with oral contraceptives and that, accordingly, the jury could not properly have based a finding of liability on any inadequacy in defendant's warnings at the time Mrs. Lindsay went to Planned Parenthood. To the contrary, the court finds that there was sufficient evidence before the jury to support a determination that had the appropriate physicians at Planned Parenthood been given adequate warnings about the pill, they would have established procedures and a routine line of inquiry which would have elicited from Mrs. Lindsay her pertinent prior medical history, would have flagged her earlier symptoms, and would have resulted in action which would have avoided Mrs. Lindsay's continued use of the pill after her initial visit to the Planned Parenthood clinic.
Although defendant in its argument on this phase of the causation issue focuses solely on Doctor Van Son and what he knew about those risks associated with oral contraceptives which might not have been adequately reflected in the package inserts at the time Mrs. Lindsay went to Planned Parenthood, the testimony both of Mrs. Lindsay and of Doctor Van Son himself indicated that the Planned Parenthood clinic operated under a bifurcated system in which clerical personnel who were not physicians took the patient's medical and social history and the physician, such as Doctor Van Son, simply conducted a physical examination of the patient. Mrs. Lindsay testified that to the best of her recollection Doctor Van Son did not ask her any questions about her past medical history, testimony which was not contradicted by Doctor Van Son. But it was precisely in that part of Mrs. Lindsay's visit to Planned Parenthood in which she was asked questions about her past medical history and experiences, and not in the course of the actual physical examination that important information such as her past episodes of tingling and numbness might have been elicited. Further, the evidence does not indicate that Doctor Van Son ever discussed the possible dangers of the pill with Mrs. Lindsay. Again, the evidence suggests that such a discussion may not have been part of the physician's responsibility under the bifurcated system in existence at Planned Parenthood. Thus, it is not the knowledge of Doctor Van Son which is most relevant to the instant case, but rather the knowledge of those physicians in charge of the Planned Parenthood operation, particularly those who devised the operating procedures pursuant to which plaintiff was interviewed, and there is nothing in the record regarding those physicians' knowledge of the dangers of the pill.
However, even apart from the above consideration, based on the organization of the Planned Parenthood office, it is not accurate to state that the jury could have reached no reasonable conclusion on the basis of the evidence introduced at trial other than that Doctor Van Son had full and complete independent knowledge of the dangers associated with the pill and that that independent knowledge negated the element of causation with regard to any inadequacy in defendant's warnings as of the time Mrs. Lindsay went to Planned Parenthood. Doctor Van Son's testimony, just as the deposition testimony of Doctor Harris, presented a genuine issue of credibility for the jury to consider. Again, as it had to do in evaluating the evidence of Doctor Harris' independent knowledge, the jury might reasonably have considered the extent to which the inadequacy of defendant's warnings may have counteracted whatever independent knowledge concerning the risks associated with oral contraceptives Doctor Van Son might have had. In that connection, the jury might reasonably have concluded, based on the evidence introduced and in the absence of any evidence to the contrary, that Doctor Van Son had affirmatively discounted and disregarded defendant's warnings, that the relevant warnings "watered down" and unduly minimized the pill-associated risks suggested by precisely that information of which defendant asserts that Doctor Van Son had independent knowledge in such a fashion as to have negated the effect as a separate factor in this case of any independent knowledge on the part of Doctor Van Son.
Thus, this court finds no merit to the arguments made in defendant's first point as a basis for granting defendant's post-trial motion.
Defendant's second argument is that the court improperly "injected into the case the issue of the adequacy of defendant's warnings to Mrs. Lindsay's "treating physicians' " and that for that reason the jury's verdict must be set aside.
However, as the court noted when defendant's counsel raised this objection following the court's instructions to the jury on the subject, the disputed issue was not of the court's making. To the contrary, evidence with regard to the so-called "treating physicians' " examination and care of Mrs. Lindsay following her display of the symptoms of thromboembolic disorder emerged during the course of the trial was already before the jury, and as a matter of common sense, presented an issue as to whether plaintiff's injury might not have been avoided had those physicians been more fully advised concerning the side effects of and contraindications for the pill.
Specifically, the evidence before the jury, as already briefly highlighted in Section I, Supra, was that Mrs. Lindsay consulted three physicians in addition to those who prescribed Ortho-Novum 2 mg. for her use. Two of those other physicians, Doctors Vastola and Ryan, specialized in neurology; the third, Doctor Weingarten, was Mrs. Lindsay's family physician whom she consulted periodically from sometime in 1966 throughout the period she remained on the pill and thereafter until she suffered her stroke.
According to Doctor Harris' testimony, he referred Mrs. Lindsay to Doctor Vastola for examination because of the tingling and numbness sensations she reported to him at her February 15, 1966 checkup. Doctor Harris further testified that he received a written report from Doctor Vastola concerning the latter's examination of Mrs. Lindsay. Doctor Vastola's report, which was received in evidence, indicates that at the time he wrote the report and presumably at the time he examined Mrs. Lindsay, Doctor Vastola was aware that Mrs. Lindsay was taking birth control pills. The evidence further indicates that Doctor Vastola made no connection between Mrs. Lindsay's tingling and numbness sensations and her use of the pill, and that he did not himself advise or suggest to Doctor Harris that the latter consider advising Mrs. Lindsay to discontinue her use of the pill.
Mrs. Lindsay testified that Doctor Weingarten sent her to see Doctor Ryan because she had been upset by the report which Doctor Vastola had sent to Doctor Harris. Defendant asserts that the evidence indicates that when Mrs. Lindsay went to see Doctor Ryan in June 1967 she was not taking the pill, having temporarily discontinued its use several months earlier because of brown facial blotches. Mrs. Lindsay, however, testified that throughout the approximately five-year period she was taking oral contraceptives she never stopped taking them for longer than one month at most. But regardless of how the jury chose to resolve this disputed factual issue, the evidence, by indicating a direct relationship between Doctor Vastola's earlier report and Mrs. Lindsay's examination by Doctor Ryan, also indicates that the reason for Mrs. Lindsay's examination by Doctor Ryan was causally related to the tingling and numbness sensations which she had previously experienced while on the pill and which, Doctor Ryan's written report to Doctor Weingarten indicates, were the subject of inquiry in the course of his examination of Mrs. Lindsay. Again, the evidence indicates that Doctor Ryan made no connection between the tingling and numbness sensations which Mrs. Lindsay had experienced and her use of the pill.
The foregoing evidence indicates that each of the three treating physicians was in a position to have taken some action to cause Mrs. Lindsay to discontinue her use of the pill well in advance of the date in October 1970 when she actually stopped using the pill, but that none of the three doctors took any such action because none connected Mrs. Lindsay's tingling and numbness sensations with her oral contraceptive use. As discussed below in connection with the statute of limitations defense raised by the defendant, it is a permissible inference from the evidence that had Mrs. Lindsay discontinued her use of the pill at such an earlier point in time, she never would have sustained the injury which gave rise to this action. Further, it was a permissible inference based on the foregoing that had the defendant given adequate warnings to the treating physicians of the risks associated with the pill, one of them would have made a connection between the pill and the tingling and numbness sensations which Mrs. Lindsay experienced. Thus, the evidence presented at trial placed squarely in issue the role of the treating physicians and the adequacy of the warnings to those physicians concerning the risk of CVA's associated with the pill.
Under these circumstances, if defendant wished to have the jury directed not to consider the treating physicians' role and not to consider the adequacy of the warnings to those physicians, it was its obligation to seek such a limiting instruction. However, the requested instructions defendant now points to as designed to restrict the jury's deliberations to the role of the prescribing physicians Harris and Van Son were hardly adequate to advise the court much less the jury that the jury was not to consider the causal role of the treating physicians. The ostensible subject of the requested instructions now referred to by defendant was "proximate cause." Moreover, the factual portion of the requested charge mentioned only Doctor Van Son ostensibly because of defendant's oft-expressed theory, explicitly rejected by the court before the charge, that only the actions of Doctor Van Son could be reviewed by the jury under the applicable statute of limitations. For defendant now to say that those instructions were sought in order to convey to the jury that it should not consider in its deliberations whether the treating physicians were adequately warned or, further, that defendant itself was somehow misled by the court's ruling on that requested charge because it deemed that ruling to have limited the case to the warnings given to the prescribing physicians is disingenuous. The record, moreover, indicates that, following this court's ruling that it would give the requested "proximate cause" charge "in substance," and despite the fact that the requested charge referred solely to Doctor Van Son, defendant was under no misapprehension as to the fact that the issue of the adequacy of defendant's warnings to Doctor Harris was still very much in the case. Thus, defendant must have understood that the court's ruling, that it would charge "in substance" as requested by defendant on the issue of proximate causation, was a ruling that the legal principles stated in the requested charge were accurately presented and would be so charged, not that the court agreed with and would limit itself in its instructions to the particular factual circumstances and premises of the application of those legal principles as expressed in defendant's request.
Defendant also asserts that it was improper to submit the issue of the adequacy of warnings to the treating physicians to the jury because none of the three treating physicians took the stand and testified that he actually had read any of the defendant's labelling concerning Ortho-Novum 2 mg. However, as indicated by the discussion of the issue of proximate causation in Section I, Supra, of this opinion, the case law does not support defendant's argument that a prima facie case of inadequacy of warnings with respect to a particular physician cannot be established unless plaintiff calls the physician to the stand to testify that he read warnings provided by the defendant drug manufacturer. Indeed, the cases indicate that in many, if not most, actions of this nature the plaintiff does not call the physician as a witness on her behalf. See Chambers v. G. D. Searle & Co., supra, 441 F. Supp. at 382, 385.
The evidence in the present case supports an inference that the treating physician must have seen and read defendant's warnings regarding the pill. First, the evidence at trial showed that the drug companies did not, in fact, limit their communications with the medical profession to obstetricians and gynecologists who might be expected to prescribe the pill by strict use of the "package insert" to reach only that segment of the medical community. Rather, the evidence showed that whether through the PDR, which contained the language of the package insert verbatim, advertisements in medical journals of general circulation, which were required by law, See 21 U.S.C. § 352 (1970), to contain the pertinent labelling, or "Dear Doctor" letters, the defendant drug company during the period relevant to this action undertook to speak to the medical profession at large and not simply to the prescribing physician about oral contraceptives and their use. Indeed, as discussed below, the jury could reasonably have found that it was part of the drug company's duty, given the risks presented by the pill, to communicate not only with those physicians who might be expected to prescribe the pill, but also with that portion of the medical profession which might be called upon to treat the patient for pill-associated side effects. Further, the evidence reasonably permits the inference that the particular treating physicians here involved, confronted as they were with a medical history involving the use of defendant's pill, would have consulted the generally available warnings concerning that drug. That inference, as well as an inference of reliance on those warnings, is particularly strong with respect to the two specialists because the specific symptoms for which they were consulted, as well as the symptoms indicated in defendant's listings of side effects and contraindications, involved matters within their particular field of expertise and thus matters to which they would be expected to be attuned and whose significance and implications they might be expected to seek to track down.
In the face of this evidence, no rebuttal testimony was introduced to establish that the treating physicians had not read or relied upon defendant's warnings. Moreover, if defendant believed that in the circumstances of this case the customary rule with respect to proximate causation, see discussion in Section I, Supra, did not apply and prima facie proof of inadequacy of the relevant warnings should not have been taken as prima facie proof of causation, it should have presented the issue at trial by a motion to strike the evidence regarding the treating physicians' involvement as not "connected up" or by a request for a limiting instruction. Neither course was followed.
Even if the evidence did not permit an inference, as it does, that the treating physicians read and relied upon defendant's actual warnings, that would not preclude a finding of the inadequacy of defendant's warnings with respect to the treating physicians. A finding of inadequate warnings may be based not only on the contents of the warnings and other materials which the defendant did provide to the medical community, but also on the failure of the defendant to take reasonable measures to provide the medical community through vehicles other than the standard labelling with information about risks which it was reasonably foreseeable the medical community would need to know to enable it to properly treat patients using the defendant's drug. The evidence in this case supports a finding that it was reasonably foreseeable that physicians other than those actually prescribing the pill would need information about the risks associated with defendant's drug because patients exhibiting symptoms the origins of which they themselves did not know would typically consult a treating, and not the prescribing physician. The jury might reasonably have found based on the evidence in this case that the defendant failed to take reasonable measures to alert treating physicians of risks associated with the pill in such a manner that symptoms possibly associated with use of the pill could be recognized as such and so that treating physicians might ask appropriate questions of their patients concerning their medical history and current health-related practices.
In all events and even assuming that the issue of the adequacy of defendant's warnings to the treating physicians should not have been submitted to the jury, in the face of the jury's response to Special Interrogatory IV accompanying the general verdict, which was drafted with the assistance of defendant's counsel, it borders on the frivolous to now seek a new trial on the basis of the court's alleged "injection" of the "treating physicians" issue into the case. The jury's answer to Special Interrogatory IV clearly indicated that there was a separate and independent basis for the jury's finding that defendant's warnings were inadequate and for the jury's verdict namely, the finding that the defendant gave inadequate warnings to the prescribing physicians.
Special Interrogatory IV was drafted specifically in response to defendant's objection to the court's submission to the jury of the issue of the adequacy of defendant's warnings to the treating physicians and with the specific purpose, made known to counsel for both sides, of avoiding just the type of argument defendant now advances and of preventing the need for a retrial by eliciting a clear statement from the jury as to the bases of their finding of inadequate warnings. Further, it was the intention of this court, and the record reflects, the understanding at that time of counsel for both sides as well that in submitting Special Interrogatory IV to the jury, the court was presenting the jury with two alternative bases for liability either one or both of which considered independently the jury might find had been established by the evidence. Defendant did not object to the submission of Special Interrogatory IV to the jury nor did it object to the language of that Special Interrogatory in its final form.
Indeed, as noted above, the final language of Special Interrogatory IV reflected suggestions from and was altered specifically to accommodate the views of the respective counsel and particularly counsel for the defendant.
Now, however, defendant appears to have decided that the language of Special Interrogatory IV leaves open the argument that the jury might have found the defendant liable for inadequate warnings only because of the combination of its separate findings that inadequate warnings were given to the prescribing and treating physicians respectively. Assuming that the language of Special Interrogatory IV does, without a tortured construction, lend itself to the interpretation suggested by the defendant, an assumption which this court by no means accepts, the possibility of a combined, inter-related basis for the jury's finding of inadequate warnings and consequent liability such as defendant now suggests was never contemplated by this court at the time of the drafting of Special Interrogatory IV and was never noted by counsel for either party contemporaneously with the drafting and submission to the jury of that special interrogatory. Even more to the point, that possibility finds no support in the evidence, in any theory presented to the jury during trial or in the court's instructions to the jury which, as the excerpts quoted by defendant in its moving Memorandum on this motion clearly show, presented the theories of inadequate warnings to the prescribing and treating physicians respectively as two alternative, independent bases for finding liability against the defendant. Indeed, it is difficult, if not impossible to imagine under what rationale the jury might have concluded that a combination of inadequate warnings to both prescribing and treating physicians was necessary to establish the defendant's liability once the jury identified the inadequacy of each group of warnings as being causally related to plaintiff's injury inasmuch as, accepting all additional findings implicit in the jury's verdict, Mrs. Lindsay's injuries could have been avoided had Either the prescribing physicians not prescribed or taken Mrs. Lindsay off the pill, Or had the treating physicians advised Mrs. Lindsay to discontinue her use of the pill.
Defendant in this connection relies on Morrissey v. National Maritime Union of America, 544 F.2d 19 (2d Cir. 1976). Morrissey was an action by a union member against the union and union officials in which the union member asserted two claims under the Landrum-Griffin Act. The Second Circuit found that one of the Landrum-Griffin Act claims, that under 29 U.S.C. § 411(a)(2) involving the right to meet and assemble freely and to freedom of speech, had been properly submitted to the jury, but that the trial court had committed error in submitting to the jury the other Landrum-Griffin Act claims, that under 29 U.S.C. § 411(a)(5) involving improper disciplinary action. The Court of Appeals further found that, under the circumstances presented, the improper submission to the jury of the one Landrum-Griffin Act claim under 29 U.S.C. § 411(a)(5) required that the general verdict in plaintiff's favor be set aside.
The Court cited the general rule that "when one of the two claims that have been submitted to the jury should not have been submitted, a general verdict . . . cannot stand." 544 F.2d at 26. With specific regard to the case before it, the Court stated that it could
"find no sufficient basis for confidence that the verdict on the (Landrum-Griffin Act) count would have been rendered, and particularly that the same verdict would have been rendered, if the complaint under (29 U.S.C. § 411(a) (5)) had not been submitted."
The instant case involves, however, more than a simple general verdict. Here, the general verdict was accompanied by answers to special interrogatories indicating the bases for the jury's finding of liability on plaintiff's products liability claim. That was not the case in Morrissey, supra.
Further, in keeping with the analysis indicated in Morrissey, supra, this court finds every basis for confidence that the verdict in this case on plaintiff's products liability claim would have been rendered, and particularly that the same verdict would have been rendered if the issue of the adequacy of the warnings to the treating physicians had not been submitted to the jury.
As this court understands defendant's argument, defendant reads Morrissey as standing for the principle that whenever two theories of liability, one proper and the other improper, are submitted to the jury, if it appears that the jury sustained both theories of liability, the resultant general verdict in plaintiff's favor must be set aside. As articulated by the defendant, that principle leaves no room for a contrary result even if it further appears that the proper theory standing alone would have resulted in the same verdict. In support of that principle, defendant cites the statement in the Morrissey opinion that because the court would guess that the jury had sustained both the proper and improper theories of recovery, the error in submitting the improper theory to the jury was not harmless, See 544 F.2d at 27. However, a fair reading of the Morrissey court's statement, taking into account the fact that the statement is accompanied by a reference to the large amount of punitive damages awarded by the jury, makes clear that it was not simply because the Second Circuit guessed that the jury had probably sustained both theories of recovery that the court held the error not harmless, but because the court further believed that the combination of the jury's findings sustaining both theories of recovery may have had an effect on the jury's verdict, specifically on the amount of punitive damages awarded by the jury. Thus, the Morrissey opinion suggests that a general verdict must be set aside where the jury probably or definitely sustained two theories of liability on a particular claim, one of which theories was improper, Only if the court determines that the jury's finding sustaining the improper theory may have affected the general verdict in some manner.
In this case, as previously stated, the court has no doubt that the jury's finding of liability would have been the same had only the issue of the adequacy of the warnings to the prescribing physicians been submitted to the jury. Further, this court can also state with confidence that the submission to the jury of the issue of the adequacy of the warnings to the treating physicians had no effect on the amount of damages awarded to plaintiffs those damages being strictly compensatory in nature and, therefore, not dependent in any way on an evaluation of the nature of defendant's actions.
To summarize this court's determination with regard to defendant's second argument in support of its present motion, this court finds that there was evidence presented at trial which warranted the submission to the jury of the issue of the adequacy of defendant's warnings to the treating physicians, but that even if the issue regarding the treating physicians was improperly submitted to the jury, the separate and independent alternative finding by the jury as established by the answers to Special Interrogatory IV that inadequate warnings had been given to the prescribing physicians supports the general verdict in plaintiff's favor and permits the general verdict to stand.
Defendant's third argument in support of its present motion is that the evidence establishes as a matter of law that Mrs. Lindsay was contributorily negligent and that she misused the drug. Accordingly, defendant maintains it was entitled to a directed verdict at the conclusion of the trial and is now entitled to judgment notwithstanding the verdict. Alternatively, defendant asserts that the court's instructions to the jury on the issues of contributory negligence and product misuse were erroneous and require a new trial.
After reviewing the post-trial memoranda, the court finds no basis for altering its view expressed at the conclusion of trial that the evidence presented at trial warranted a submission of the issues of contributory negligence and product misuse to the jury.
Although defendant characterizes Mrs. Lindsay's use of Ortho-Novum 2 mg. between March 1968 and February 1970 as "unauthorized" and repeatedly refers to Mrs. Lindsay as one who "self-prescribed" or "self-administered" defendant's drug, these characterizations were not undisputed factual propositions, but rather were matters of argument to the jury based on all of the relevant evidence.
Indeed, acceptance of these characterizations would not lead inexorably to the legal conclusions advanced by defendant in this part of its motion; rather, they tend to obscure rather than to advance the required analysis namely, whether under all of the circumstances and viewing the evidence, as one must on a motion of this nature, most favorably to plaintiff, the evidence permits a finding that Mrs. Lindsay exercised reasonable care for her own safety.
The evidence on which defendant bases its assertion of contributory negligence and product misuse was essentially as follows. In September 1967 after agreeing to Mrs. Lindsay's resumption of use of the pill, Doctor Harris sent plaintiff Lindsay a written prescription for Ortho-Novum 2 mg. That prescription was good for six months, or until March 1968. Doctor Harris never provided Mrs. Lindsay with another written prescription for Ortho-Novum 2 mg. after September 1967, nor did any other physician until February 1970 when Mrs. Lindsay went to the Planned Parenthood clinic and got a new written prescription from Doctor Van Son. Mrs. Lindsay testified that she was taking Ortho-Novum 2 mg. throughout this period, and specifically from March 1968 to February 1970. Mrs. Lindsay did not return to Doctor Harris for an examination between March 1968 and February 1970.
Mrs. Lindsay testified that between March 1968 and February 1970 she received her supply of Ortho-Novum 2 mg. by going to her pharmacy as and when necessary and asking for a refill of Doctor Harris' last prescription which the pharmacy had on record. Mrs. Lindsay further testified that she had no difficulty procuring the pills in this manner until February 1970 when the pharmacist told her that she needed a new prescription and after which she went to Planned Parenthood.
Doctor Van Son's prescription of Ortho-Novum 2 mg. for Mrs. Lindsay was put into evidence. In his closing argument plaintiff's counsel directed the jury's attention to the left-hand corner of Doctor Van Son's prescription where there were four boxes for four refills of the prescription. Plaintiff's counsel also noted that the approximately two-year period between March 1968 and February 1970, when Mrs. Lindsay was told that she needed a new prescription, corresponded almost exactly to four six-month refills of Doctor Harris' last prescription. Plaintiff was unable to produce the pharmacy's copy of that last prescription from Doctor Harris. However, plaintiff explained her failure to produce that copy of Doctor Harris' prescription by evidence that the pharmacy did not keep records going as far back as the time here in question. In addition, one of defendant's witnesses, Doctor Fuchs, testified on cross-examination that in his experience it was common practice for a pharmacist to call a doctor on the telephone because one of the doctor's patients had gone to the pharmacy seeking a refill of a prescription and to get the doctor's permission over the phone to refill the prescription. Based on this evidence, plaintiff's counsel asked the jury to infer, and this court finds that the jury reasonably could have inferred, that between March 1968 and February 1970 Mrs. Lindsay got her supply of Ortho-Novum 2 mg. by getting refills of her original September 1967 prescription from Doctor Harris and that those refills were obtained in an appropriate manner.
Defendant notes that every package of Ortho-Novum 2 mg. bears the legend: "Caution: Federal law prohibits dispensing without prescription."
But the evidence indicated above permits the inference that even in the period between March 1968 and February 1970, Mrs. Lindsay's use of Ortho-Novum 2 mg. was pursuant to a prescription a prescription which Mrs. Lindsay simply had refilled in an appropriate and customary manner.
The evidence also indicates that, although Mrs. Lindsay did not return to Doctor Harris for an examination between March 1968 and February 1970, she did during that period of time go to see Doctor Weingarten, her family physician. Further, Mrs. Lindsay testified that Doctor Weingarten knew that she was taking birth control pills.
And there is no evidence that anyone ever told Mrs. Lindsay that while she was on the pill it was important that she return to her prescribing, as opposed to some other, physician for periodic examinations.
Moreover, with regard to the question of the reasonably foreseeable dangers of Mrs. Lindsay's actions in obtaining the pill as she did between March 1968 and February 1970 and in failing to return to her prescribing physician for an examination during that period, the jury could reasonably have considered the nature of the particular drug at issue in this case. In contrast with most other prescription drugs, birth control pills are not prescribed primarily for therapeutic purposes to combat disease.
In that connection, the impetus behind the use of the birth control pill is more often consumer demand than medical advice based upon independent, informed medical opinion. See generally, Note, Liability of Birth Control Pill Manufacturers, 23 Hastings Law Journal 1526 (May 1972). In addition, the jury could reasonably have considered the evidence of widespread publicity promoting the use of the oral contraceptives to the general public in the mid-to-late 1960's and the evidence presented at trial suggesting that in the period between March 1968 and February 1970 the public in general and pill users in particular were not fully informed of the serious health-related side effects potentially associated with use of the pill. While defendant requested and obtained an instruction to the jury in connection with the issue of the adequacy of its warnings stating that the drug company had no duty to warn users of the pill directly of the dangers associated with the drug, the lack of warning, and other evidence bearing on the users' knowledge at the relevant time of the dangers of the pill could properly be taken into account by the jury in considering plaintiff's contributory negligence.
Whether the evidence just summarized warrants the characterization that during the period from March 1968 to February 1970 Mrs. Lindsay, who testified that she simply asked the pharmacy to refill Doctor Harris' previous legitimate written prescription for Ortho-Novum 2 mg., "self-prescribed" or "self-administered" the drug as defendant asserts or whether the evidence warrants the characterization that during that same period the use of the pill by Mrs. Lindsay, who went to her family physician for examinations was "unsupervised" was for the jury to determine. More to the point, this court finds that the evidence as outlined above supports a finding by the jury that throughout the relevant period of time and considering the then-reasonably foreseeable dangers of the use of this non-therapeutic drug, Mrs. Lindsay acted with reasonable care for her own safety, obtaining her supply of Ortho-Novum 2 mg. in a manner which appeared regular to her and reporting to a doctor for periodic examinations, although not to the doctor who prescribed the pill for her.
In addition, defendant overlooks the question of whether, even assuming, contrary to this court's determination, that the only possible conclusion from the evidence was that Mrs. Lindsay did not exercise reasonable care for her own safety, that failure to exercise reasonable care could be said to have been a proximate cause of Mrs. Lindsay's injuries. The evidence indicates that Mrs. Lindsay did not experience any new symptoms related to her use of the pill in the period between March 1968 and February 1970. Further, the evidence supports the inference that there was nothing about the information being made available to the medical profession in that period which would have caused Doctor Harris to discontinue Mrs. Lindsay's use of the pill had she gone to see him. Thus, the evidence would support a finding that any failure by Mrs. Lindsay to exercise reasonable care for her own safety was not a proximate cause of her injuries.
Defendant next asserts that errors in the court's instructions to the jury on the issues of contributory negligence and product misuse require a new trial. It is defendant's view that the court's instructions effectively dictated a finding of no contributory negligence and no product misuse. However, having considered the instructions as a whole and taking into account defendant's particular objections, the court concludes that the instructions properly conveyed to the jury the ...