Ortho Pharmaceutical Corp. v. Heath, 83SA293

• Decision Date: 07 July 1986
• Docket Number: No. 83SA293,83SA293
• Citation: 722 P.2d 410
• Parties: Prod.Liab.Rep. (CCH) P 11,169 ORTHO PHARMACEUTICAL CORPORATION, Defendant-Appellant, v. Jo Ellen Murphy Hyland HEATH, Plaintiff-Appellee.
• Court: Colorado Supreme Court

Page 410

722 P.2d 410

Prod.Liab.Rep. (CCH) P 11,169

ORTHO PHARMACEUTICAL CORPORATION, Defendant-Appellant, v. Jo Ellen Murphy Hyland HEATH, Plaintiff-Appellee.

No. 83SA293.

Supreme Court of Colorado En Banc.

July 7, 1986.

Bragg & Dubofsky, P.C., John T. Baker, Frank N. Dubofsky, Douglas E. Bragg, Denver, for plaintiff-appellee.

Tilly & Graves, P.C., Charles Q. Socha, Ronni M. Brammeier, Denver, Patterson, Belknap, Webb & Tyler, David F. Dobbins, New York City, for defendant-appellant.

Colorado Trial Lawyers Ass'n, James L. Gilbert and Associates, James L. Gilbert, Arvada, amicus curiae.

Colorado Defense Lawyers Ass'n, Wood, Ris & Hames, P.C., F. Michael Ludwig, Christian M. Lind, Denver, amicus curiae.

VOLLACK, Justice.

The defendant-appellant, Ortho Pharmaceutical Corporation (Ortho), a manufacturer of oral contraceptives, appeals a judgment entered upon a verdict of $975,000 and prejudgment interest in the amount of $506,542.80 in a products liability action for personal injuries suffered by plaintiff-appellee, Jo Ellen Murphy Hyland Heath (Heath). Heath attributed her acute kidney failure in November, 1974 to her use of Ortho-Novum, a brand of oral contraceptive made by Ortho. The trial court denied Ortho's motion for judgment N.O.V. and Ortho's motion for new trial. Ortho appeals. We reverse and remand for a new trial.

I.

Heath first began taking Ortho-Novum in 1967. She stopped using oral contraceptives during the summer of 1970 because she wanted to become pregnant. She had a normal pregnancy and gave birth to a daughter in May, 1971. In February, 1972, her obstetrician-gynecologist, Dr. Clayton Evans, prescribed Ortho-Novum 1/50. In March, 1972, he increased her dosage to Ortho-Novum 1/80 after she reported one incident of break-through bleeding. She continued to take Ortho-Novum 1/80 until November, 1974. At that time, Heath, then aged 28, became critically ill with acute kidney failure, which eventually necessitated a kidney transplant. Subsequently, she developed cervical dysplasia which her doctors postulated was caused by the immuno-suppressant therapy she was receiving to minimize the risk of kidney rejection. Because of a perceived risk of cervical cancer, she elected to have a hysterectomy in 1979. The risk of cancer also stemmed from the corticosteroid or immuno-suppressant medication prescribed to prevent rejection of the transplanted kidney.

Heath filed suit against Ortho alleging injuries caused by Ortho-Novum 1/80. Both sides presented expert testimony. Her experts attributed her acute kidney failure to malignant hypertension or hemolytic uremic syndrome (HUS) induced by her use of Ortho-Novum 1/80. Ortho's experts disputed the conclusions of Heath's experts. The case was submitted to the jury on theories of strict liability and negligence.

Heath also presented evidence that the warning provided by Ortho regarding the use of Ortho-Novum 1/80 was inadequate in that physicians were not told to monitor blood pressure and were not alerted to the possibility of kidney failure. Moreover, Heath alleged that, despite Ortho's compliance with the Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301-392, (1972), which regulates the labeling of drugs, the warning provided to users of Ortho-Novum 1/80 was inadequate. Heath claimed that there was a common law duty to warn users of Ortho-Novum 1/80 in addition to the warnings mandated by the Food and Drug Administration (FDA).

II.

Ortho first claims that Heath failed as a matter of law to prove that her kidney failure was caused by the use of Ortho-Novum 1/80. Ortho argues that the testimony of Heath's experts was purely conjectural and was based upon their subjective assessments. Specifically, Ortho argues that, because Heath's expert witnesses based their opinions upon diagnoses that ruled out other possible causes of her kidney failure, it was error for the court to allow the jury to decide whether it was "more likely than not" that Ortho-Novum 1/80 was the cause of her HUS and kidney failure.

In a jury trial the determination of facts, credibility of witnesses, and weight and probative value of the evidence are committed to the wisdom and discretion of the jury. Kiefer, Inc. v. Hoffman, 193 Colo. 15, 562 P.2d 745 (1977). Heath presented numerous expert witnesses who testified that Ortho-Novum 1/80 caused her HUS and resulting kidney failure. Any conflicts in the evidence were for the jury to resolve. In reviewing the sufficiency of the plaintiff's evidence, we have held that the evidence must be considered in a light most favorable to the plaintiff. It is not the province of this court to judge the weight of the evidence or credibility of the witnesses. Wilson v. Board of County Commissioners of Adams County, 703 P.2d 1257 (Colo.1985).

Accordingly, we hold that Heath presented sufficient evidence of the causal relationship between Ortho-Novum 1/80 and her illness to warrant a determination by the finder of fact. The defense motions to dismiss and for judgment N.O.V. were properly denied.

III.

Ortho contends Heath's claim that Ortho-Novum 1/80 was defectively designed was not timely raised, and that the trial court did not have a sufficient factual basis to submit the claim to the jury. Alternatively, Ortho contends jury instruction no. 15, which set forth the elements of Heath's design defect claim, was erroneous. Ortho further contends that FDA approval of Ortho-Novum 1/80 precludes the giving of a design defect instruction under the Supremacy Clause, U.S. Const., art. VI, cl. 2. We discuss each contention separately.

A.

As to the timeliness issue, the record contains no information concerning the procedure by which Heath's assertion that Ortho-Novum 1/80 was defectively designed was recognized by the trial court. Ortho's brief asserts that Heath made no motion to amend her pleadings to conform to the evidence, and Heath's answer brief neither denies the assertion nor discusses the question of the timeliness of the amendment. Absent any basis in the record to suggest that the trial court abused its discretion in allowing Heath's late assertion of the claim, we cannot rule that the claim was untimely raised.

Ortho also claims the trial court did not have a sufficient factual basis to submit a design defect claim to the jury. We disagree.

To assess whether Heath introduced sufficient evidence to justify submission of her design defect claim to the jury requires an analysis of the elements of such claim. Courts and commentators have recognized two types of defective product claims. The first deals with a defect in the manufacturing stage; the second involves products that are produced in precisely the form intended, but which are nevertheless unreasonably unsafe. Wade, On Product "Design Defects" and Their Actionability, 33 Vand.L.Rev., 551 (1980). Heath's claim involves this second type of defective product. We have adopted section 402A of the Restatement (Second) of Torts in the context of the second type of defective product cases. Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1976); Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978). Under section 402A, Heath must establish that, while Ortho-Novum 1/80 was produced and marketed in precisely the form intended, it is unreasonably dangerous.

Because all products are dangerous when used improperly or for unintended purposes, Heath alleges that Ortho-Novum 1/80 is so designed that it is unreasonably dangerous when properly used for its intended purpose. A variety of tests have been developed to determine whether the defect (that degree of dangerousness inherent in all prescription drugs) is unreasonable. The California Supreme Court adopted the following two tests:

[I]n design defect cases, the court may properly instruct the jury that a product is defective in design if (1) the plaintiff proves that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) the plaintiff proves that the product's design proximately caused injury and the defendant fails to prove, in light of the relevant factors, that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design.

Barker v. Lull Engineering Co., 24 Cal.3d 413, 426-427, 143 Cal.Rptr. 225, 234, 573 P.2d 443, 452 (1978). The first test is based in part on section 402A of the Restatement (Second) of Torts, and it has been largely incorporated into our model jury instruction in C.J.I.-Civ.2d 14:19. The test has been characterized as the "consumer expectation test." It relies in large part upon comment i of section 402A, which defines unreasonable conduct as follows:

The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer.... The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

The second test adopts a risk-benefit analysis to measure the reasonableness of a danger. If, under this second test, a plaintiff proves causation, the manufacturer is required to establish that the product's benefits outweigh its inherent risks. The consumer expectation test or the risk-benefit test are the primary approaches used by courts faced with the question of adopting an appropriate test for design defect cases. ¹ We believe the second test as set forth in Barker is the appropriate standard here. The dangerousness of Ortho-Novum 1/80 is defined primarily by technical, scientific information. The consumer expectation test fails to address adequately this aspect of the problem. The risk-benefit test focuses on the practical policy issues characteristic of a product such as Ortho-Novum 1/80, which is alleged to be unreasonably dangerous despite being manufactured in...