Hill v. Squibb & Sons, E. R.

• Decision Date: 06 April 1979
• Docket Number: No. 14407,14407
• Citation: 592 P.2d 1383,181 Mont. 199
• Court: Montana Supreme Court
• Parties: Victor F. HILL and Minnie M. Hill, Plaintiffs and Appellants, v. SQUIBB & SONS, E. R., a foreign corporation, and Frederic S. Marks, M. D., Defendants and Respondents.

Page 1383

592 P.2d 1383

181 Mont. 199

Victor F. HILL and Minnie M. Hill, Plaintiffs and Appellants, v. SQUIBB & SONS, E. R., a foreign corporation, and Frederic S Marks, M. D., Defendants and Respondents.

No. 14407.

Supreme Court of Montana.

Submitted Feb. 8, 1979.

Decided April 6, 1979.

Kelly & Foley, Billings, William T. Kelly, Billings, argued, for plaintiffs and appellants.

Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Jack S. Ramirez, Richard F. Cebull, Billings, argued, Anderson, Symmes, Brown, Gerbase, Cebull, & Jones, Billings, for defendants and respondents.

HASWELL, Chief Justice.

This is an appeal by plaintiffs from judgments entered in the District Court of Yellowstone County on a directed verdict in favor of defendant Squibb & Sons, a partial directed verdict in favor of defendant Frederic S. Marks, and a jury verdict rendered in favor of Dr. Marks on the remaining claims against him.

Plaintiff Victor F. Hill suffers from severe allergic reactions (contact dermatitis) to a variety of substances and most severely to petroleum based products. Hill was a mechanic by trade, and thus was subject to constant exposure to those products. He was first treated by defendant Dr. Marks in 1952, at which time the flareups of his dermatitis were occurring only about twice a year. By the mid-1960's, however, plaintiff's condition had worsened to the point where he was seeing Dr. Marks three or four times a month. After 1969, the visits to Dr. Marks averaged about two times a month.

A well recognized treatment of skin problems is the use of a class of drugs known as steroids, a kind of synthetic cortisone. Cortisone and all cortisone related drugs have significant and well-known side effects.

Dr. Marks initially treated plaintiff with injections of ACTH, a chemical which stimulates natural production of cortisone by the adrenal glands. The ACTH was administered in conjunction with topical steroid creams applied directly to the affected areas and prescriptions for steroid pills to be orally ingested. In 1965, Dr. Marks began using an injectible steroid called Kenalog-40 which had recently been put on the market by defendant Squibb & Sons. From 1965 to 1970, Dr. Marks gave plaintiff injections of Kenalog-40, together with oral and topical steroids, at approximately two week intervals. Occasional injections of ACTH were also given to plaintiff during that period.

In the summer of 1970 plaintiff spilled brake fluid over a large part of his body, causing an extremely severe flareup of the dermatitis. Dr. Marks increased the steroid treatments by supplementing the ACTH and Kenalog-40 injections with more oral steroids. Over the last five months of his treatment by Dr. Marks, up to his final visit on January 18, 1971, plaintiff was treated with a total of 1450 mg. of sterane, an oral steroid, and 440 mg. of Kenalog-40 by injection.

At his last visit to Dr. Marks in January 1971, plaintiff was referred by Dr. Marks to the Billings Clinic. Plaintiff had some facial swelling which Dr. Marks wanted the clinic to check into. On January 20, 1971, the Billings Clinic referred plaintiff to its staff dermatologist, a Dr. Smoot. Upon learning of plaintiff's history, Smoot immediately discontinued the injections of steroids because he "could see nothing but problems down the road." Dr. Smoot continued to prescribe oral steroids and steroid creams, gradually tapering them off. As the steroid treatment was lessened, the dermatitis worsened, until in July 1971 it was so bad Hill was disabled completely and had to give up his job.

In March 1971, while under treatment at the Billings Clinic, Hill first noticed blurring vision and in the fall of that year he required surgical removal of cataracts. In 1973, he developed back pain and was diagnosed to have osteoporosis, a loss of calcium in the bones. Cataracts and osteoporosis of the types that plaintiff exhibited are both characteristic side effects of steroid treatment.

On September 9, 1974, a complaint was filed in Yellowstone County District Court by Victor and Minnie Hill alleging that plaintiff's cataracts and osteoporosis were the result of the actions of Squibb & Sons and Dr. Marks. The claim against Squibb & Sons was framed in three counts, alleging negligence, strict liability in tort, and breach of express and implied warranties. The central theory of the claim was that Squibb's Kenalog-40 was negligently marketed and was a defective product because the package inserts provided with the drug did not warn specifically enough of its dangerous side effects. As to Dr. Marks, the complaint alleged, in summary, negligence in failing to fully advise plaintiffs in regard to the risks associated with steroid treatments and in failing to properly monitor the effects of the treatment on Victor Hill over the nearly twenty year period in which steroids were administered to him.

After a period of extensive discovery, jury trial was had on the matter before Judge Robert H. Wilson. Plaintiffs testified that Dr. Marks had never told them of the side effects of steroid treatment, and that if he had, then Victor Hill would have quit his job to avoid exposure to the substances which caused his dermatitis. Dr. Marks and his nurse, on the other hand, testified that while the specific side effects were never enumerated, plaintiffs were informed many times that steroid treatment was dangerous, that Dr. Marks hesitated to continue using it, and that Victor Hill should get another job. There was evidence that plaintiff did, in fact, try to seek other employment but had no alternative skills. There was also testimony that plaintiff's condition was a severe one, that long-term steroid therapy, while risky, was not entirely unheard of, and that the decision to undertake such therapy is a matter of informed judgment by the treating physician after weighing the risks and benefits.

At the close of plaintiffs' case, defendant Squibb & Sons' motion for directed verdict was granted on the ground that there was no expert testimony that the package insert Squibb included with Kenalog-40 was inadequate in warning of its side effects. Defendant Marks also moved for directed verdict, raising the statute of limitations as a bar and arguing further that plaintiff had failed to establish a prima facie case because there had been no expert testimony that Dr. Marks had failed to act as a reasonably prudent physician in the area would have acted in the same circumstances. The court denied Marks' motion, holding that in regard to the statute of limitations there was a question of fact for the jury as to when plaintiffs' claim arose; and that while lack of expert testimony was fatal to the plaintiffs' claim in regard to the question of malpractice, the issue of lack of informed consent should go to the jury because the question of whether plaintiffs had been told enough to make their own judgment as to continuation of the treatment was a question "readily ascertainable by the layman." The case was submitted to the jury in that posture, and a verdict in favor of defendant Marks was returned. The verdict was rendered in a general form; it does not appear from the record whether the jury found the statute of limitations issue to be determinative or if it was rather the merits of the informed consent question that controlled.

On appeal, plaintiffs raise the following issues:

1. Whether the filing of an Ex parte trial brief by defendant Squibb was a violation of plaintiffs' due process rights.

2. Whether the trial court erred in granting a directed verdict in favor of defendant Squibb.

3. Whether the trial court erred in excluding from evidence certain of plaintiffs' proposed exhibits.

4. Whether the trial court erred in granting a directed verdict in favor of defendant Marks on the issue of malpractice.

5. Whether the trial court erred in submitting the issue of the statute of limitations to the jury rather than treating it as a matter of law to be decided by the court.

Plaintiffs first objected to Squibb's Ex parte trial brief in the lower court in a motion for a new trial. Plaintiffs' specific objection was that Squibb's Ex parte brief had compromised plaintiffs' case in that it failed to cite many pertinent decisions and distorted plaintiffs' evidence and the applicable law. Plaintiffs also objected to the practice of allowing Ex parte trial briefs in general, contending that it violates a party's right to an adversary hearing.

Rule 19 of the Rules of Practice of the District Court of the Thirteenth Judicial District specifically allows the filing of trial briefs to be used solely for the benefit of the trial court and not divulged to opposing counsel. There is little authority addressed to the propriety or impropriety of this practice.

The ABA Code of Professional Responsibility, DR 7-110(B), contemplates submission of trial briefs without service on opposing counsel where "authorized by law". "(I)n the absence of statute, rule, direction of the court, or agreement between counsel requiring service on opposing counsel, it is not necessary, and indeed not wise, to exchange trial briefs because of the possibility of educating opposing counsel as to the lawyer's theories in regard to his case." 5 Am.Jur. Trials p. 92-93. The literature on preparation for trial in products liability cases strongly recommends filing of trial briefs by Plaintiffs in such actions. Cf. 12 Am.Jur. Trials p. 121.

We recognize that theoretically a rule allowing for the filing of Ex parte briefs may be suspect in that it conflicts with the spirit of openness and cooperation underlying the modern rules of civil procedure. Nonetheless, judges have a right to secure a trial brief from the attorneys in a cause and, indeed, in a complex case such a brief may be indispensable to inform the judge of the nuances of the arguments that will be forwarded at trial. In our opinion, if the fact that the contents of the...