Lindsay v. Ortho Pharmaceutical Corp.

• Decision Date: 10 September 1979
• Docket Number: No. 72 C 1283.,72 C 1283.
• Citation: 481 F. Supp. 314
• Parties: Nancy C. LINDSAY and Bruce H. Lindsay, Plaintiffs, v. ORTHO PHARMACEUTICAL CORP., Defendant.
• Court: U.S. District Court — Eastern District of New York

481 F. Supp. 314

Nancy C. LINDSAY and Bruce H. Lindsay, Plaintiffs, v. ORTHO PHARMACEUTICAL CORP., Defendant.

No. 72 C 1283.

United States District Court, E. D. New York.

September 10, 1979.

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Barry McTiernan & Moore by Roger T. McTiernan, Bridget A. Lundy, New York City, for plaintiffs.

Patterson, Belknap, Webb & Tyler by David F. Dobbins, Karl E. Seib, Jr., Theodore B. Van Itallie, Jr., New York City, for defendant.

MEMORANDUM AND ORDER

SIFTON, District Judge.

Plaintiff, Nancy C. Lindsay, brought this action against defendant, Ortho Pharmaceutical Corp. ("Ortho"),¹ 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.

I

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 plaintiff² 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.³

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.⁴ 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...