Calabrese v. Trenton State College

Decision Date15 September 1978
Citation392 A.2d 600,162 N.J.Super. 145
PartiesCarmine CALABRESE, Plaintiff-Appellant,VS v. TRENTON STATE COLLEGE, Defendant-Respondent. Carmine CALABRESE, Plaintiff-Appellant, v. Dr. William EAMES, Dr. Alexander Farina and Trenton State College, Defendants-Respondents. Carmine CALABRESE, Plaintiff-Appellant, v. Dr. William EAMES, Dr. Alexander Farina, Trenton State College, Eli Lilly and Company, Ketchum Distributors and Robbins Pharmacy, jointly or severally, Defendants-Respondents.
CourtNew Jersey Superior Court — Appellate Division

Mark S. Harrison, Jersey City, for defendant-appellant (Krivitzky & Springer, Jersey City, attorneys).

Thomas M. Curry, Deputy Atty. Gen., for respondent Trenton State College (John J. Degnan, Atty. Gen., attorney; William F. Hyland, former Atty. Gen., Erminie L. Conley, Deputy Atty. Gen., of counsel).

Mary B. Rogers, Jersey City, for respondent Eames (Lamb, Hutchinson, Chappell, Ryan & Hartung, Jersey City, attorneys; Maurice J. Gallipoli, Jersey City, of counsel).

John L. McGoldrick, Newark, for respondents Eli Lilly, Ketchum Distributors and Robbins Pharmacy (McCarter & English, Newark, attorneys; Richard D. Quay, Newark, on the brief).

Douglas R. Kleinfeld, Newark, for respondent Farina (Conway, Reiseman, Michals, Wahl, Baumgardner & Hurley, Newark, attorneys).

Before Judges MATTHEWS, CRANE and MORGAN.

PER CURIAM.

In this medical malpractice case primarily involving evidential problems associated with the issue of informed consent and, secondarily, the alleged obligation of drug companies to advise physicians, and others, of matters beyond that of the hazards inherent in the drug's use, plaintiff appeals a trial court order granting defendants' motion for summary judgment. The facts which figured in the challenged order, drawn from the procedural aspects of the case and from the disclosures, and deficits therein, encountered during pretrial discovery, are without substantial dispute.

On November 23, 1971 plaintiff Carmine Calabrese then a student at defendant Trenton State College, was bitten by a dog while on the campus of the college. The dog was not found and could not, therefore, be tested for rabies. Consequently, plaintiff received a series of injections of an anti-rabies vaccine, the first group of which was administered by defendant Dr. William Eames, at the College infirmary, and completed by defendant Dr. Alexander Farina, plaintiff's family physician, from vaccine received by plaintiff from Dr. Eames. According to plaintiff, neither doctor provided him with any information concerning possible adverse side effects associated with administration of the vaccine.

After the 13th or 14th injection plaintiff began experiencing some of the neurological side effects from the vaccine, which later progressed in severity to the degree that now forms the basis of his complaint. It started with confusion and an inability to concentrate. Later, the simplest of tasks became major projects. He was forced to leave college, and a job requiring administrative skills which he attempted later proved too much for him. He was demoted to a job with lesser demands. Ultimately he left that employment. He has been declared totally disabled for Federal Social Security purposes.

His treating doctors diagnose is condition variously as encephalomyelitis secondary to rabies vaccine, chronic severe organic brain damage secondary to rabies vaccine, acute depressive reaction associated with and resulting from rabies vaccination. Presently, plaintiff is unable to concentrate, think clearly, read or retain information, complete college or even hold a job. He suffers from frequent headaches, undergoes episodes of bizarre behavior and personality changes, and is otherwise unable to lead a normal life.

On July 8, 1974 plaintiff commenced suit against Doctors Eames and Farina, and Trenton State College as the employer of Dr. Eames, alleging negligence on the part of the doctors in the administration of the vaccine and their failure to warn him of its hazards, and against the College as vicariously responsible for the defaults of Dr. Eames. This complaint was amended on June 3, 1975, almost a year later, to join Eli Lilly and Company (manufacturer of the vaccine), Ketchum Distributors (its distributor), and Robbins Pharmacy (the store which sold the vaccine to the College).

During the entire course of this litigation defendants encountered difficulty in securing discovery from plaintiff. With respect to his experts' reports, orders were obtained compelling their production, first on October 17, 1975 on motion of defendant Ketchum, and then on June 18, 1976 and July 12, 1976, on motion of the drug defendants and Dr. Eames, respectively. These orders required plaintiff to supply such reports by October 18, 1976 or to move before that date for a further extension of time. Plaintiff did neither. On October 22, 1976, four days after the date on which the reports were to be supplied, defendants Lilly, Ketchum, and Robbins (hereinafter "drug defendants"), moved for an order dismissing the complaint for plaintiff's failure to comply with the prior orders. It was in response to that motion that plaintiff sought a further extension of time within which to procure expert testimony in support of his case. By order dated November 3, 1976 the trial judge barred plaintiff from introducing expert testimony by any person whose name and report has not been supplied to defendants by the end of the day of October 22, 1976. Plaintiff did not appeal this interlocutory order. Nor did he seek to name experts and produce their reports at any time before defendants moved for summary judgment, heard by the trial judge on April 20, 1977. We add, parenthetically, that even by the time this appeal was argued no expert reports on the issue of "informed consent," relevant either to plaintiff's case against Doctors Eames and Farina or to the adequacy of the drug company's warnings, had been secured, and this was over three years after initiation of suit and over six years after plaintiff was bitten.

A trial court has inherent discretionary power to impose sanctions for failure to make discovery, subject only to the requirement that they be just and reasonable in the circumstances. Lang v. Morgan's Home Equipment Corp., 6 N.J. 333, 78 A.2d 705 (1951); Brown v. Mortimer, 100 N.J.Super. 395, 242 A.2d 36 (App.Div.1968); Schlosser v. Kragen, 111 N.J.Super. 337, 268 A.2d 321 (Law Div. 1970); R. 4:23-2(b). Despite plaintiff's protests, we conceive that the challenged order comports with those requirements. To this day plaintiff has not tendered the requested reports and indeed admits that, at present, expert proof is not available. Indeed, most of his contentions assert the adequacy of his case against the doctors and the drug defendants without the support of expert proof, further signalling plaintiff's intention to place the case before the jury in that posture. In these circumstances, we cannot hold that the trial judge mistakenly exercised his discretion in barring such testimony at trial.

We therefore proceed to an evaluation of plaintiff's case without the support of expert proof, as plaintiff suggests we do in most of his points of argument. Throughout much of his argument runs the recurrent theme that because of the modern rarity of rabid dogs, and the resultant slim chance of any dog bite victim being in any real danger of contracting disease, the vaccine for rabies, carrying with it well known dangers of serious side effects, from which plaintiff now suffers, should not be given except, perhaps, where the offending dog is known to have been rabid. According to plaintiff, the available statistical data on the remoteness of the danger of rabies, when considered in light of the possible adverse side effects associated with the anti-rabies vaccine, makes the prevention of rabies a greater hazard than the hazard presented by an untreated dog bite victim. Following this thought through to its conclusion, plaintiff asserts that the drug company defendants were duty bound to inform doctors and their patients of this statistical information, and their failure to include such facts in the informational data accompanying distribution of the vaccine provides the basis for plaintiff's claim against them. As to Doctors Eames and Farina, plaintiff contends that before commencing their course of injections of the vaccine, plaintiff should have been informed not only of the possible adverse side effects of the vaccine, but of the remoteness of the risk that the dog which bit plaintiff was rabid; in short, plaintiff seems to be contending that the doctors should have advised plaintiff against use of the vaccine, or at least should have made such statistical data known to him so that he could have intelligently exercised his choice in the matter. Instead, plaintiff contends, the doctors did neither; they informed him of nothing at all but simply commenced the course of injections telling him only that if he declined such treatment, he might die if the dog was, in fact, rabid.

We affirm the summary judgment in favor of Eli Lilly and Company, Ketchum Distributors and Robbins Pharmacy. We have no doubt but that the duck-embryo vaccine against rabies with which plaintiff was treated must be classified in accordance with Restatement, Torts 2d, § 402A, comment (k), as an "unavoidably unsafe" product and, hence, not unreasonably dangerous for its intended use when properly prepared and accompanied by proper directions and warnings. Comment (k) to that section absolves from strict liability in tort those sellers who undertake "to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk." For an application of § 402A in light of comment (k) see, Brody v. Overlook Hospital, 127 N.J.Super. 331, 339, 317 A.2d 392 (App.Div.1974), aff'd 66...

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