Andrews v. Olin Mathieson Chemical Corporation

• Decision Date: 23 July 1964
• Docket Number: No. 17439.,17439.
• Citation: 334 F.2d 422
• Parties: William C. ANDREWS and Julie T. Andrews, by William C. Andrews, Her Father and Next Friend, Appellants, v. OLIN MATHIESON CHEMICAL CORPORATION, a Virginia Corporation, doing business as E. R. Squibb and Sons, Inc., New York Division of Olin Mathieson Chemical Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

334 F.2d 422 (1964)

William C. ANDREWS and Julie T. Andrews, by William C. Andrews, Her Father and Next Friend, Appellants, v. OLIN MATHIESON CHEMICAL CORPORATION, a Virginia Corporation, doing business as E. R. Squibb and Sons, Inc., New York Division of Olin Mathieson Chemical Corporation, Appellee.

No. 17439.

United States Court of Appeals Eighth Circuit.

July 23, 1964.

Elliott R. McDonald, of McDonald, McDonald & Carlin, Davenport, Iowa, made argument for the appellant and filed brief.

Larned A. Waterman, of Lane & Waterman, Davenport, Iowa, made argument for the appellee and filed brief with Otto C. Bauch and Lane & Waterman, Davenport, Iowa.

Before VAN OOSTERHOUT, RIDGE and MEHAFFY, Circuit Judges.

RIDGE, Circuit Judge.

This is an appeal from a judgment dismissing (after trial and jury verdict in favor of appellee) all counts of appellants' complaint seeking damages for deafness alleged to have been caused to the infant appellant, Julie T. Andrews, because of injections of certain drugs.¹

No claim is here made by appellants that they are entitled to judgment notwithstanding the verdict of the jury. All assignments of error relate to procedural matters occurring in the course of pre-trial procedure, or at the trial on the merits. Tersely stated, errors so claimed are: (1) unjustifiable preclusion of the testimony of two doctors proffered as witnesses by appellants; (2) the trial court's refusal to permit appellants to read to the jury cross-examination of two witnesses contained in depositions, after waiver of reading parts thereof by appellee; (3) the giving of instructions to the jury; (4) alleged misconduct of one juror for failure to make disclosures on voir dire examination; and, (5) exclusion of ex post facto evidence as to "cause" proffered by appellants. In the light of the errors so claimed, and it appearing that diversity jurisdiction here exists, we only set forth in the course of this opinion such facts as will give proper focus to the error asserted.

On June 25, 1959, when Julie Andrews was seven and one-half months of age, she became ill and was taken to St. Joseph's Mercy Hospital in Clinton, Iowa, for treatment of pneumonia, bilateral otitis media, and tonsillitis. Her then attending pediatrician prescribed, over a three-day period, one intramuscular injection of a drug, dicrysticin fortis, and two injections of dicrysticin, manufactured and sold by appellee. Julie was released from the hospital on June 30, 1959. One month later, Julie's mother noticed that her daughter apparently could not hear. As a consequence she took Julie to the office of her pediatrician. The doctor made an examination of Julie and found the child did not respond to loud noises. Arrangements were then made for the child to be examined by an otolaryngologist who reported Julie had complete and permanent loss of hearing. There was evidence adduced at the trial which related Julie's loss of hearing to the injections of the appellee's drugs, ante; i. e., proof was made as to the inherent composition, ingredients, and toxicity of dicrysticin and dicrysticin fortis, such as to warrant a submission of appellee's liability to the jury for determination. Appellee denied the toxicity of its drugs as claimed by appellants and made proof that Julie's deafness was congenital, and if not so, then it was the result of other causes for which it was not responsible. As above noted, the jury found "all the (factual) issues" submitted to it under the instructions as given by the trial court "in favor of the defendant," appellee.

I.

Appellants' first assignment of error relating to the preclusion of witnesses arose thus: District Judge McManus presided over the pre-trial procedure conducted in the case at bar. Seemingly by pre-trial order, counsel for these parties were directed, among other things, to disclose the names of all their witnesses, as well as the general content of their proposed testimony; and:

"If the name and address of the witness is not submitted at the time of the final pre-trial conference, the witness shall not be permitted to testify, but this restriction shall not apply to rebuttal witnesses, the necessity of whose testimony cannot reasonably be anticipated prior to trial." (Applnts. Br., pp. 5, 6.)

Compliance with such pre-trial directive was apparently made by way of a joint written report filed by counsel with the trial court. This is apparently so, since it is only on briefs that reference is made to such matters, and there only in general terms. The record proper is silent as to the pre-trial process pursued in the case at bar. All that appears in the printed record is a final pre-trial order, covering seventeen (17) pages.² Nowhere, i. e. by briefs or record proper, does it appear that appellants at any time objected to any pre-trial proceedings. The final pretrial order was entered of record on February 14, 1963, which directed a trial on the merits to commence March 26, 1963.

However, it appears that on March 21, 1963, — five days before the date so set for trial — appellants' counsel made application to Judge McManus to call four (4) persons as witnesses (a hospital record librarian, and three nurses) not previously disclosed at pre-trial conference. Without objection of appellee, those witnesses testified at the trial on the merits.

On the date set for commencement of trial, counsel for appellants, in chambers before District Judge Hanson (duly designated as Judge to preside at the trial on the merits), sought permission to call as witnesses two doctors whose names had not previously been disclosed.³ An objection by appellee to the calling of such witnesses was sustained. It is upon that ruling made on the first day of trial, that appellants premise error as to the "preclusion of witnesses."

As that matter is presented, we are asked to judicially notice plain error appearing on the face of this record. Appellants' singular premise therefor is "that the preclusion" order "was unjust," in that it puts "technical rules and procedures into Federal practice that the Federal Rules of Civil Procedure were designed to eliminate." We shall not follow these parties in the presentations they make regarding that subject — primarily, because we cannot find in the record before us any matter establishing pre-trial procedure as followed in the District Court for the Southern District of Iowa, by rule or otherwise; nor any objection made by appellants to any action taken or ruling made as to the pretrial procedure followed in the case at bar. All that appears from the record is that Judge Hanson, on the first day of trial, ruled in chambers that appellants' counsel would not be permitted to call either of the doctors as witnesses in chief, whose identity, was then first disclosed. Appellants' counsel acquiesced, in part, to the ruling so made as to one such doctor, namely, Dr. Albert Zimmer.

As to the other doctor precluded (Dr. Robert E. Dwyer) the only formal offer of proof made was "(t)hat we be allowed to call Dr. Dwyer and that he be allowed to testify from the investigations that he's made as to the cause of this child's deafness." The singular ruling then made by Judge Hanson was, "Well, the offer of proof as indicated is now denied."⁴ Rule 43(c), F.R.Civ.P., 28 U.S.C.A., specifically provides how "excluded evidence" is to be preserved for judicial review. That appellants were afforded ample opportunity to make any offer of proof as to what testimony these precluded doctors would give if called as witnesses, is made manifest. It is only "in extraordinary situations" that a party may call "upon (us) to act in the interest of judicial administration itself" where matters occurring before a trial court do not appear in the record on appeal. Cf. Hawkins v. Missouri Pacific R. Co., 188 F.2d 348 (8 Cir. 1951). The case law is legion that a question not going to the jurisdiction of the court cannot be raised for the first time on appeal. Cf. Goldie v. Cox, 130 F.2d 695 (8 Cir. 1942); Arkansas Valley Feed Mills, Inc. v. Fox deLuxe Foods, Inc., 273 F.2d 804 (8 Cir. 1960); Charter Oak Fire Ins. Co. v. Mann, 304 F.2d 166 (8 Cir. 1962).

The only "extraordinary situation" we perceive in the case at bar as to the "preclusion of witnesses" is that counsel for appellants were "laboring under the misapprehension" that "Dr. Robert E. Dwyer, the obstetrician who had brought the plaintiff, Julie Andrews, into the world, and who had treated her as a pediatrician for a couple of months following her birth" had moved from the community in which he formerly resided. Counsel apparently continued under that misapprehension from the time the complaint in the case at bar was filed until two or three days before the commencement of the trial on its merits. During that period of time (approximately two years) counsel admittedly "just assumed" that Dr. Dwyer had moved away. They made no effort to determine his whereabouts. The Doctor, during all such time, was a resident of the same community where he resided when he attended the delivery of Julie. If it is thought that such laxity on the part of appellants' counsel should not be held against appellants' right of action here asserted, then there are other facts appearing in the record which we think must be considered before any equation as to error in the "preclusion of witnesses" might be judicially noticed.

The record reveals that a pre-trial stipulation of the parties was made that Julie was "healthy and normal at birth, except for her alleged loss of hearing." Julie's mother, father, and aunt each testified to facts which, if believed, established Julie was able to hear prior to June 25, 1959. Medical testimony adduced at the trial, hypothetically and otherwise, revealed that Julie's state of hearing as being normal at birth was taken into consideration by four other doctors who testified on behalf of appellants; and that such matter was an issue of fact well aired...