437 F.2d 1295 (5th Cir. 1971), 29085, Alman Bros. Farms & Feed Mill, Inc. v. Diamond Laboratories, Inc.

Docket Nº:29085.
Citation:437 F.2d 1295
Party Name:ALMAN BROTHERS FARMS & FEED MILL, INC., Plaintiff-Appellee, v. DIAMOND LABORATORIES, INC., and Southwestern Laboratories, Inc., Defendants-Appellants.
Case Date:January 28, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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437 F.2d 1295 (5th Cir. 1971)



DIAMOND LABORATORIES, INC., and Southwestern Laboratories, Inc., Defendants-Appellants.

No. 29085.

United States Court of Appeals, Fifth Circuit.

January 28, 1971

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Joe H. Daniel and William Larry Latham, Daniel, Coke, Horton & Bell, Jackson, Miss., for defendants-appellants.

Alfred G. Nichols, Jr., Crisler, Crisler & Nicols, Jackson, Miss., John C. McLaurin, Brandon, Miss., for plaintiff-appellee.

Before TUTTLE, THORNBERRY and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

This products liability suit was originally instituted in the Circuit Court of Rankin County, Mississippi, against appellants Diamond Laboratories, Inc. and its subsidiary, Southwestern Laboratories, Inc. (hereinafter referred to as defendants), for damages sustained by Alman Brothers Farms & Feed Mill, Inc. (plaintiff), and alleged to be the result of the use of defendants' product, an animal vaccine known as 'Tissucine'. The action was removed to the United States District Court for the Southern District of Mississippi pursuant to 28 U.S.C. § 1441 et seq., and jurisdiction was based on diversity of citizenship.

Defendants' first three specifications of error all relate to the question of sufficiency of the evidence for submission of plaintiff's case to the jury, 1 and thus we shall begin with the recitation of the facts as we have derived them from the record as a whole.

Max and Buck Alman operated a farm acquired in 1966, and were engaged in the business of raising hogs. In November and December of 1966, there was an outbreak of hog cholera involving about eleven of the Alman brothers' hogs. One of the expert witnesses at the trial, Dr. Bedell, testified that he visited the farm on May 24, 1967, and found 'some sick pigs,' but nothing to cause him to suspect hog cholera. On June 24, 1967, plaintiff had on hand several hundred hogs which had been vaccinated with Franklin serum, and on that day, and over the next few weeks, purchased and kept in separate pens 494 hogs which were vaccinated with a shipment of defendants' vaccine. These 494 hogs, as well as the original group, appeared to be healthy. Defendants' vaccine was administered immediately and according to directions to the new hogs as they were brought in. Beginning on July 7, 1967, part of the new group of 494 hogs became ill and eventually 476 of the 494 succumbed. These hogs would begin to show the symptoms of disease within 12 to 16 days after they had been vaccinated with Tissucine. According to plaintiff, none of the other hogs previously on hand and vaccinated with the Franklin serum became ill or died. The disease was diagnosed primarily to be hog cholera. Plaintiff's expert, Dr. Chadwick, testified that the hog cholera was probably caused by defendants' modified live hog cholera vaccine.

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Defendants' motions for directed verdict and for judgment notwithstanding a verdict challenged the sufficiency of evidence that 'Tissucine' was the proximate cause of the death of plaintiff's hogs. In general, a motion for directed verdict should be granted in two situations: 'First, where there is a complete absence of pleading or proof on an issue or issues material to the cause of action or defense. * * * Second, where there are no controverted issues of fact upon which reasonable men could differ.' 5 Moore, Federal Practice, P5002(1) (2d Ed. 1969). These situations were not present in the instant case. Surely defendants would acknowledge that when their motion for directed verdict was made, reasonable men might have reached different conclusions from the evidence. The standard of review for motions for directed verdict and for judgment notwithstanding a verdict are the same for a trial court and an appellate court. 2B Barron & Holtzoff, Federal Practice and Procedure, § 1074, at p. 375 (Wright Ed. 1961). The evidence and all inferences therefrom must be viewed in the light most favorable to the party against whom the motions are made. Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969); 2B Barron & Holtzoff, supra, 1075, p. 378. Thus, 'the court may not substitute its judgment on a question of fact for that of the jury, nor direct a verdict because the evidence decidedly preponderates for the moving party.' 2B Barron & Holtzoff, supra, § 1075, at pp. 375-376. See Butte Cooper & Zinc Company v. Amerman, 157 F.2d 457 (9th Cir. 1946).

It is beyond peradventure to this court that plaintiff presented sufficient evidence to go to the jury. We reject outright defendants' contention that there was a mere scintilla of evidence.

Defendants assert that plaintiff's case was based solely on the testimony of Dr. Chadwick. However, there was ample circumstantial evidence from which liability could have been inferred, and from which a prima facie case could have been established even without Dr. Chadwick's testimony. See, e.g., Grey v. Hayes-Sammons Chemical Co., 310 F.2d 291, 302 (5th Cir. 1962). Indeed, the jury was not bound by the defendants' evidence, nor forced to accept the testimony of their experts. American Cyanamid Co. v. Fields, 204 F.2d 151, 153 (4th Cir. 1953).

Appellants, however, challenged the testimony of Dr. Chadwick, who, on the basis of a detailed hypothetical, 2 testified

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that in his opinion the vaccine Tissucine was the probable cause of the hog cholera and the death of plaintiff's 476 hogs. He also testified that modified live virus vaccine had on several prior occasions been cited as the cause of hog cholera outbreaks.

Defendants assert that the hypothetical question submitted to Dr. Chadwick contained assumptions not supported by the evidence and omitted certain material facts. Generally, the form and length of hypothetical questions are within the discretion of the trial judge. Dickerson v. Shephard Warner Elevator Co., 287 F.2d 255, 260 (6th Cir. 1961). 'It is for the witness and not the court to determine whether from the facts stated he is able to express a scientific opinion. * * * A hypothetical question need not include all the facts in evidence, nor facts or theories advanced by opposing counsel.' Metropolitan Life Insurance Co. v. Armstrong, 85 F.2d 187, 190 (8th Cir. 1936); 32 C.J.S. Evidence § 551(2), at p. 527 (1964). It is normally not required that each hypothetical question should embrace every fact which it might be contended should affect the judgment of an expert witness. Dickerson v. Shephard Warner Elevator Co., supra. The question propounded to Dr. Chadwick fairly presented the plaintiff's theory of the case and was based upon assumptions which were supported by evidence.

Defendants have attempted to detract from this testimony by bringing out that Dr. Chadwick had discussed the legal connotation of the word 'probable' with plaintiff's attorney. We find no indication of prejudicial influence, especially in light of Dr. Chadwick's eminent qualifications. He was Executive Officer and Secretary of the State Board of Sanitary Health in Mississippi-- in essence, the 'State Veterinarian,' and as such he was a wholly disinterested and unpaid witness.

Defendants have also tried to establish that the cause of plaintiff's loss was a pre-exposure to a 'field virus' prior to the vaccinations. However, the record indicates that plaintiff's hogs became ill 12 to 16 days after the vaccination, and defendants' own witnesses indicated that a pre-exposure would have indicated symptoms within 8 days. Defendants' attempts to blame other disease organisms

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in this case must also fail. The jury chose not to believe their experts' testimony and there was sufficient evidence for the verdict reached.

Another ground of error asserted by defendants is that the jury was misled by the admission of testimony concerning the highly suspect nature of modified live hog cholera vaccine and the strict regulations governing its sale and usage. Defendants' own counsel actually opened the door to this proof on cross-examination by establishing that Tissucine was on the United States Department of Agriculture's approved list of vaccines. The general standing of modified live cholera vaccines in the veterinary field was admissible to establish that defendants' product could have caused the cholera outbreak. See J. Wigmore, Evidence, § 455 at p. 457 (1940).

We add that defendants are not exonerated because their product met Department of Agriculture standards. A person can be guilty of negligence while acting within the bounds of the law. Cutshall v. State, 191 Miss. 764, 4 So.2d 289 (1941). The court below thus committed no prejudicial error in admitting the evidence about which defendants complain.



In our discussion of defendants' defense in the area of products liability, we will first consider the assertion that plaintiff never established a prima facie case for failure to present proof of a defective or unreasonably dangerous product. Secondly, we will consider the question of the adequacy of the warning given by defendants.

Plaintiff's case was submitted to the jury with a charge paraphrasing 402A of the Restatement of Torts, Second, which provides:

'(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it...

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