Feldman v. Lederle Laboratories

• Decision Date: 10 June 1993
• Citation: 625 A.2d 1066,132 N.J. 339
• Court: New Jersey Supreme Court
• Parties: , Prod.Liab.Rep. (CCH) P 13,503 Carol Ann FELDMAN, Plaintiff-Appellant, v. LEDERLE LABORATORIES, a Division of American Cyanamid Company, a Maine corporation doing business in the State of New Jersey, Defendant-Respondent.

Page 339

132 N.J. 339

625 A.2d 1066, Prod.Liab.Rep. (CCH) P 13,503

Carol Ann FELDMAN, Plaintiff-Appellant, v. LEDERLE LABORATORIES, a Division of American Cyanamid

Company, a Maine corporation doing business in the

State of New Jersey, Defendant-Respondent.

Supreme Court of New Jersey.

Argued March 1, 1993.

Decided June 10, 1993.

James I. Peck, IV, West Orange, for plaintiff-appellant.

William C. Slattery, Somerville, for defendant-respondent (Norris, McLaughlin and Marcus, attys.).

PER CURIAM.

We granted certification, 130 N.J. 399, 614 A.2d 620 (1992), to consider whether the Appellate Division had correctly ordered yet another retrial of this fifteen-year-old action based on errors in the trial court's jury charge. With but one modification we affirm the judgment below substantially on the basis of the Appellate Division opinion. See Feldman v. Lederle Lab., 257 N.J.Super. 163, 608 A.2d 356 (1992). Our disagreement is limited to so much of that court's opinion as addressed the admissibility of a notation on a letter--the "Swanzey notation."

I

Plaintiff's complaint, originally filed in 1978 against Lederle Laboratories, charged that Lederle's tetracycline-based drug Declomycin, which had been administered to plaintiff from her birth in 1960 until some time in 1965, had permanently discolored her teeth. She contended under a strict-liability theory that the product had been defective as marketed at that time because it had failed to warn that pediatric administrations could cause tooth discoloration. Defendant prevailed at the first trial, and the Appellate Division affirmed in an unpublished opinion. We granted certification, Feldman v. Lederle Lab., 91 N.J. 266, 450 A.2d 579 (1982), and remanded the cause to the Appellate Division for reconsideration in light of Beshada v. Johns-Manville Products Corp., 90 N.J. 191, 447 A.2d 539 (1982). The Appellate Division again affirmed, Feldman v. Lederle Lab., 189 N.J.Super. 424, 460 A. 2d 203 (1983).

We again granted certification, 94 N.J. 594, 468 A.2d 230 (1983), reversed the judgment, and remanded for a new trial, holding that when a strict-liability defect consists of an improper warning, reasonableness of the defendant's conduct is a factor in determining liability. Feldman v. Lederle Lab., 97 N.J. 429, 451, 479 A.2d 374 (1984) (Feldman I ). The question in such cases is whether, assuming that the manufacturer knew of the product's harmful propensities, the manufacturer acted as a reasonably-prudent manufacturer in marketing the product without an adequate warning. Ibid. Thus, once the law imputes knowledge to a manufacturer, strict-liability analysis, like negligence, focuses on the reasonableness of a defendant's conduct. Ibid.

At the close of the evidence in the second trial in 1985, the trial court denied Lederle's motion to dismiss the complaint on the basis that the claim had been preempted by federal law. The jury returned a verdict for plaintiff on her strict-liability failure-to-warn claim. The verdict form reflected the following findings of fact:

1. Plaintiff ingested Declomycin between 1960 and 1963.

2. There was not a defect in Declomycin based on a failure to warn of tooth discoloration in 1960 and in 1961.

3. There was a defect in Declomycin based on its failure to warn of tooth discoloration in 1962 and in 1963.

4. The failure to warn was a proximate cause of plaintiff's losses and injuries.

5. The conduct of Lederle was not a deliberate act or omission with knowledge of a high degree of probability of harm to the plaintiff and reckless indifference to the consequences.

The finding of "no defect" before 1962 apparently reflects partial acceptance of the testimony of defendant's three experts that the "discoloration" side effect associated with tetracycline was unknowable before that date.

Lederle appealed, renewing its contention that plaintiff's claim based on failure to warn had been preempted by federal laws and regulations governing antibiotic and prescription-drug labeling. Alternatively, Lederle argued that reversal was required because the trial court had erroneously instructed the jury on the applicable law and had made improper evidentiary rulings.

The Appellate Division reversed and remanded for entry of judgment in favor of Lederle on the preemption issue. Feldman v. Lederle Lab., 234 N.J.Super. 559, 564, 561 A.2d 288 (1989). In doing so, the court noted:

Our failure to address the alternative issues should not be understood to mean that they have no merit. Indeed, we perceive several errors in the jury instructions and evidentiary rulings which, but for our ruling on preemption, would require a reversal and new trial. [Id. at 564 n. 3, 561 A.2d 288.]

We again granted certification, 122 N.J. 348, 585 A.2d 360 (1990), and held that under the Supremacy Clause, U.S. Const. art. VI, cl. 2, federal law had not preempted plaintiff's strict-liability cause of action based on failure to warn: in short, Lederle could have warned about the possibility that Declomycin caused tooth discoloration without violating federal law during the time period in which plaintiff alleged injury. Feldman v. Lederle Lab., 125 N.J. 117, 122, 592 A.2d 1176 (1991), cert. denied, --- U.S. ----, 112 S.Ct. 3027, 120 L.Ed.2d 898 (1992) (Feldman II ). We remanded to the Appellate Division to consider those issues previously raised on defendant's appeal but not decided.

Holding true to its prediction, see 234 N.J.Super. at 564 n. 3, 561 A.2d 288, n. 3, the Appellate Division reversed and remanded for a new trial. 257 N.J.Super. at 178, 608 A.2d 356.

II

The Appellate Division found three bases for reversal in the trial court's jury charge. We agree with its reasoning in each instance.

At the outset of our analysis, we pause to acknowledge the concerns of our dissenting colleagues who remind us of the dangers of reading isolated portions of a jury charge out of context. See post at 350-352, 625 A.2d at 1071-1072. We are mindful that "[r]eversible error will not be found where the charge, considered as a whole, adequately conveys the law and would not confuse or mislead the jury, even though part, standing alone, might be incorrect." Latta v. Caulfield, 79 N.J. 128, 135, 398 A.2d 91 (1979) (citing Jurman v. Samuel Braen, Inc., 47 N.J. 586, 592, 222 A.2d 78 (1966); Stackenwalt v. Washburn, 42 N.J. 15, 26-27, 198 A.2d 454 (1964)). We note further that the charge, as a whole, must be analyzed "under the evidence and circumstances of the trial." Fitzmaurice v. Van Vlaanderen Mach. Co., 110 N.J.Super. 159, 164, 264 A.2d 740 (App.Div.1970), aff'd, 57 N.J. 447, 273 A.2d 561 (1971).

However, unlike our dissenting colleagues, we further recognize other equally-important principles bearing on the issue of prejudicial error in a jury charge. First, statements delimiting the duty owed by a party in a strict-liability failure-to-warn case involving complicated issues of causation, proof, and preemption should, in the interests of justice, be unmistakably clear. See Eden v. Conrail, 175 N.J.Super. 263, 278, 418 A.2d 278 (App.Div.1980), modified, 87 N.J. 467, 435 A.2d 556 (1981); Phillips v. Scrimente, 66 N.J.Super. 157, 162, 168 A.2d 809 (App.Div.1961). Second, firmly entrenched in our law is the principle that conflicting or inconsistent statements in a jury charge do not magically counteract each other to produce a correct jury instruction; otherwise-reversible error dissipates only if the erroneous portions of the charge are expressly withdrawn by the trial court. See, e.g., Jelinek v. Sotak, 9 N.J. 19, 22-24, 86 A.2d 684 (1952) (finding reversible error when court first instructed that train engineer had duty to stop at crossing and then instructed that he was obliged only to use reasonable care at crossing); Girardin v. New York & Long Branch R.R., 135 N.J.L. 135, 138, 50 A.2d 872 (E. & A.1947); Horton v. Smith, 128 N.J.L. 488, 489, 27 A.2d 193 (E. & A.1942); Price v. Phillips, 90 N.J.Super. 480, 485, 218 A.2d 167 (App.Div.1966); Davidson v. Fornicola, 38 N.J.Super. 365, 371, 118 A.2d 838 (App.Div.1955), certif. denied, 20 N.J. 467, 120 A.2d 275 (1956); Terminal Constr. Corp. v. Bergen County Hackensack River Sanitary Sewer District Auth., 34 N.J.Super. 478, 518-19, 112 A.2d 762 (App.Div.1954), modified, 18 N.J. 294, 113 A.2d 787 (1955); cf. Mohr v. B.F. Goodrich Rubber Co., 147 N.J.Super. 279, 285, 371 A.2d 288 (App.Div.1977) (finding that clearly erroneous portion of strict-liability charge in which "and" was substituted for "or" did not compel reversal because methods of proving strict liability were explained clearly throughout course of trial so as to render charging error minor non-prejudicial inaccuracy), certif. denied, 74 N.J. 281, 377 A.2d 685 (1977).

We turn now to the three points of error in the charge. First, the Appellate Division held that the trial court had improperly charged the jury regarding the relevancy of Lederle's decision to seek Food and Drug Administration (FDA) approval before issuing new warnings about the possibility of tooth discoloration. The Appellate Division's holding, that the instruction in question effectively directed a verdict for plaintiff, keys in on the trial court's statement that "the defendant still owes a duty to warn its users in the exercise of reasonable care." That part of the charge was erroneous and contributed to the verdict; indeed, it bears directly on the critical liability issue in the case.

The trial court's error lay in telling the jury outright that Lederle had a "duty to warn." Because the jury heard evidence that Lederle had not incorporated a tooth-discoloration warning until late 1963, it could have reached no conclusion other than that Lederle had breached a legal "duty to warn." The charge effectively told the jury that as a matter of law, defendant had not exercised reasonable care by attempting only to comply with FDA regulations without issuing its own warning. The language in the...