American Cyanamid Co. v. Frankson

Citation732 S.W.2d 648
Decision Date02 April 1987
Docket NumberNo. 13-86-127-CV,13-86-127-CV
PartiesProd.Liab.Rep. (CCH) P 11,510 AMERICAN CYANAMID CO., et al., Appellants, v. Maynard C. FRANKSON and Anita Frankson, Appellees.
CourtTexas Court of Appeals

Richard L. Josephson, Don Weitinger, Houston, Bert L. Huebner, Bay City, Spencer C. Marke, Houston, for appellants.

Ernest H. Cannon, Sam W. Cruse, Jr., Thomas M. Stanley, Houston, for appellees.

Before NYE, C.J., and KENNEDY and BENAVIDES, JJ.


NYE, Chief Justice.

This is an appeal from a jury verdict awarding appellee Dr. Maynard Frankson damages against Lederle Laboratories, a division of American Cyanamid Company.

Dr. Frankson, a Bay City veterinarian, sustained a generalized head injury when he fell from a horse while training horses for tracking and roping. After he fell, he was dragged by the horse for about thirty feet. After the accident, his behavior became erratic. His physician prescribed different neuroleptic drugs, including Thorazine, Haldol and Mellaril, to attempt to control his behavior. Neuroleptics are a class of drugs which are defined by the medical literature as major tranquilizers. The patient became increasingly difficult to manage. Finally, Dr. Cohen, a psychiatrist, prescribed Loxitane, a neuroleptic drug manufactured by Lederle Laboratories. As a result of the Loxitane therapy, Dr. Frankson claimed that he sustained a permanent movement disorder, known as tardive dyskinesia.

The symptoms of tardive dyskinesia include exaggerated and uncontrolled movements of the face, mouth and other parts of the body. Various witnesses testified that Dr. Frankson drooled, marched and paced constantly. He had difficulty eating and speaking. As a result of his injuries, he brought suit against Lederle Laboratories alleging negligence, and design and marketing defects. He also brought suit against Doctors Levinthal, Cohen and Liss for medical malpractice for tortiously prescribing and administering the drug, and against Beverly Enterprises, a nursing home in which Dr. Frankson had been confined, for negligence. Dr. Levinthal was a neurosurgeon who treated Dr. Frankson with the Loxitane. Dr. Cohen was a psychiatrist who first prescribed the use of Loxitane. Dr. Liss was a rehabilitation specialist from Houston who treated Dr. Frankson.

The jury, by a verdict of ten to two, found liability against Lederle Laboratories based upon negligence and defective marketing and design of the drug Loxitane. The trial court instructed a verdict at the close of the evidence in favor of Dr. Liss. The jury failed to find negligence on the part of Dr. Cohen, Dr. Levinthal or the nursing home. The jury found $2,195,000.00 in compensatory damages and $500,000.00 in exemplary damages against Lederle Laboratories for gross negligence. Lederle Laboratories brings sixteen points of error attacking the sufficiency of the evidence, various evidentiary rulings, problems concerning the disclosure of Mary Carter agreements, errors in the jury selection process and the basis for calculation of the prejudgment interest. After carefully considering all the points of error, we affirm the judgment of the trial court.

Appellant argues in its first point that the trial court erred in its allocation of jury strikes. Specifically, the drug company claims that Dr. Levinthal should have been aligned with the plaintiff.

Prior to the voir dire examination, appellant filed a written motion to align the defendant doctors Liss, Cohen and Levinthal with the plaintiff. The drug company claimed that because of settlement offers and agreements, the doctors should have been aligned with the plaintiff for the purpose of exercising peremptory challenges. The trial court allocated nine peremptory challenges to plaintiff Frankson, three to defendant Lederle, three to defendant Dr. Levinthal and three to the defendant nursing home. Defendants Liss and Cohen were aligned with the plaintiff because a settlement was expected during the course of the trial. They received no jury strikes. At the end of voir dire, Lederle again asked the court to realign the sides. The trial court refused.

To determine whether the trial court erred, we consider the pleadings, information disclosed by pretrial discovery, information disclosed during the voir dire examination and other information brought to the attention of the trial court. Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 4-5 (Tex.1986); Diamond Shamrock Corp. v. Wendt, 718 S.W.2d 766 (Tex.App.--Corpus Christi, writ requested). The existence of antagonism is not a discretionary matter; it is a question of law determined from the above factors whether any litigants on the same side of the docket are antagonistic with respect to an issue that the jury will be asked to answer. Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 919 (Tex.1979).

During pretrial discussions, the trial court learned that defendants Cohen and Liss expected to complete a settlement during the course of the trial. These parties did settle before the case went to the jury. Doctors Cohen and Liss received no jury strikes. The trial court was also informed that Dr. Levinthal offered plaintiff a Mary Carter settlement of $500,000.00 which was not accepted. Dr. Levinthal never settled with the Plaintiff. There was also no settlement agreement between the nursing home and the plaintiff.

Plaintiff's pleadings alleged various acts of negligence against the drug company, the doctors, and the nursing home. There were also allegations of design and marketing defects, and breaches of warranty against Lederle. The defendants filed cross-actions against one another. Dr. Levinthal's cross-action denied his own negligence, but did not specifically assert blame on appellant. During the voir dire examination, plaintiff's attorney made several remarks exculpating all defendant doctors. He indicated that doctors generally rely upon the warnings given by drug companies because they can't know everything. He said that the drug company failed to tell Dr. Levinthal that a patient using Loxitane could develop tardive dyskinesia in the short-term. Plaintiff told the jury that the information provided the doctors by the drug company showed that the drug's side effects were mild and transitory. Plaintiff suggested to the jury that he believed the proof would show that if the drug company had told the doctors that a patient could get tardive dyskinesia in the short-term, the doctors would not have given Frankson the specific drug. He said that the jury would be asked to decide whether the doctors received enough information from the drug company and whether they gave the family enough information about Loxitane.

Dr. Levinthal's voir dire focused primarily on the fact that Levinthal was not negligent. His attorney told the jury that Levinthal treated Frankson according to the information that was provided him by the drug company. He argued that if the evidence showed that there was a higher risk of tardive dyskinesia from head injury, Dr. Levinthal had not been so informed by the drug company. He indicated that several witnesses would testify that the drug company failed to give proper warnings, but none would complain of Dr. Levinthal's treatment of the plaintiff.

Generally, the cases in Texas which have dealt with alignment involved parties on the same side with a common goal. In Patterson Dental v. Dunn, the Court held that a four-to-one disparity between sides resulted in a materially unfair trial even though the trial court had correctly concluded that there was antagonism among the defendants which entitled them to additional strikes. The Supreme Court, in Garcia v. Central Power & Light Co., 704 S.W.2d 734, 737 (Tex.1986), held that the affirmative exculpatory representations made by the defendants during voir dire overcame any antagonism evidenced by the pleadings.

In this case, the pleadings show that plaintiff was affirmatively seeking recovery against Levinthal, as well as the drug company. Even though it was made clear from the voir dire examination that the focus of the plaintiff's case was on the drug company, Levinthal was at all times an exposed defendant who was potentially liable. The plaintiff sought recovery against the drug company and Levinthal, either singularly or together. We hold that Levinthal was properly aligned as a defendant. We do not believe an offer of a Mary Carter agreement which was not accepted by the plaintiff was enough to shift the balance to align Levinthal with the plaintiff.

Next, we consider whether the trial court erred in its allocation of strikes. Tex.R.Civ.P. 233 suggests that the trial judge allocate strikes so that no party is given an unfair advantage. The trial judge does have discretionary power in allocating strikes. Patterson Dental Co. v. Dunn, 592 S.W.2d at 919. Here, the trial judge allocated the strikes at nine per side. There was no real antagonism between the nursing home and either Lederle or Dr. Levinthal. Levinthal and Lederle filed cross-actions against one another, but neither alleged the other was the sole cause of plaintiff's injuries. The evidence before the trial court at the time it made its decision did not show adversity between Levinthal and Lederle concerning the issue of Levinthal's negligence. Levinthal's position throughout the trial was that his actions were based upon the information received from the drug company. Lederle and Levinthal were adverse to one another on the adequacy of warning issues.

The determination of whether the trial court erred in allocation is made at the time it makes its decision and not upon hindsight. See Garcia v. Central Power & Light Co., 704 S.W.2d at 737. Proportioning the strikes may be accomplished by increasing the number allotted a sole party on one side, by decreasing the numbers allotted the multiple parties on the other side, or by both. Patterson Dental Co. v. Dunn, 592...

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