Hilliard v. A. H. Robins Co.

• Decision Date: 27 October 1983
• Citation: 148 Cal.App.3d 374,196 Cal.Rptr. 117
• Court: California Court of Appeals Court of Appeals
• Parties: Diane HILLIARD, Plaintiff and Appellant, v. A.H. ROBINS COMPANY, Defendant and Respondent. Civ. 62162.

Page 117

196 Cal.Rptr. 117

148 Cal.App.3d 374

Diane HILLIARD, Plaintiff and Appellant, v. A.H. ROBINS COMPANY, Defendant and Respondent.

Civ. 62162.

Court of Appeal, Second District, Division 1, California.

Oct. 27, 1983.

Hearing Denied Feb. 2, 1984.

Conklin, Davids & Friedman and Dennis B. Conklin, San Francisco, for plaintiff and appellant.

Haight, Dickson, Brown & Bonesteel, Robert L. Dickson, Roy G. Weatherup, and Jerry M. Custis, Santa Monica, for defendant and respondent.

FAINER, ^* Associate Justice.

1. INTRODUCTION

Plaintiff Hilliard appeals from the judgment rendered after the trial court granted a directed verdict in favor of defendant Robins on the bifurcated issue of punitive damages. Plaintiff also contends that the trial court erred in granting nonsuits as to her fraud claims and in excluding certain evidence. Defendant Robins cross-appeals from the judgment on special verdict for $600,000 general damages in favor of plaintiff and against Robins only, asserting that the case was not brought to trial within the five-year mandatory time limit of Code of Civil Procedure section 583, subdivision (b), that the amount of general or compensatory damages was excessive, that the evidence was insufficient to support the judgment for compensatory damages, and that the trial court committed reversible errors in instructing the jury, in failing to grant a mistrial because of prejudicial misconduct by plaintiff's lawyer and/or because the jury was subjected to prejudicial media publicity, and, finally in receiving inadmissible prejudicial evidence over Robins' objections.

Defendant Robins has included in its grounds for appeal, the denial of its motion for new trial. An order denying a motion for a new trial, however, is nonappealable. (Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal.App.3d 744, 748-749, 137 Cal.Rptr. 417.) Our review of the record reveals that defendant raises the same or substantially similar issues on appeal as it advanced in its motion for new trial. To the extent that the issues contained in Robins' new trial motion are argued on appeal, we consider them.

The judgment on special verdict does not mention the order granting the directed verdict on the punitive damage issue. An order directing a verdict is nonappealable. (Surabian v. Lorenz (1964) 229 Cal.App.2d 462, 463, 40 Cal.Rptr. 410.) Ordinarily, an appeal from the judgment permits a review of the order granting a directed verdict. (See Costa v. Regents of University of Cal. (1951) 103 Cal.App.2d 491, 495, 229 P.2d 867.) In the case at bar, however, the judgment failed to mention the directed verdict nor did the clerk enter judgment of the directed verdict. A dismissal of the appeal on the directed verdict issue might be appropriate, with the trial judge instructed to amend the judgment to include a disposition of the punitive damage issue based on the directed verdict. This procedure would result in a waste of judicial resources and would require rebriefing. The trial court intended a final ruling. "In the interests of justice and to present unnecessary delay, we order the judgment ..." to be amended by adding a paragraph directing verdict in favor of defendant Robins on the bifurcated issue of punitive damages. (Gombos v. Ashe (1958) 158 Cal.App.2d 517, 524, 322 P.2d 933; see 6 Witkin, California Procedure (2d ed. 1971) Appeals § 49, pp. 4064-4065.) We perceive no prejudice to either party in preserving the appeal of plaintiff Hilliard on the punitive damage issue by this routinely accepted procedure (Tenhet v. Boswell (1976) 18 Cal.3d 150, 154-155, 133 Cal.Rptr. 10, 554 P.2d 330) and we review the punitive damage issue on the merits as an appeal from the judgment as amended.

The trial court granted the nonsuit motions of defendant Robins as to plaintiff's fraud claims, counts 4 and 7. As this order disposed of some but not all of the issues involved in the trial, Code of Civil Procedure section 581c, subdivision (b) requires no judgment be entered on the nonsuited fraud counts prior to the termination of the action and then the judgment, in addition

to the matters determined in the trial, include the judgment for nonsuit. As the judgment in our instant case made no mention of the nonsuited counts, we amend the judgment to add a paragraph nonsuiting plaintiff on her fraud claims, counts 4 and 7, against defendant Robins. Plaintiff's contention on appeal that the trial court erred in granting the nonsuits is therefore an appeal from the judgment as amended.

2. PROCEDURAL BACKGROUND

Plaintiff filed her original complaint on November 25, 1974, against defendant Robins, three doctors, and a hospital. The matter was tried on plaintiff's sixth amended complaint. Defendant Robins was alleged to be liable for plaintiff's injuries for negligence (count 1), strict liability (count 2), breach of express warranty (count 3), fraud (counts 4 and 7), ² wilful and wanton misconduct, which was apparently plaintiff's pleading basis for punitive damages, (count 5) and civil conspiracy (count 6). As to defendant doctors Baker, Brown and Smith, plaintiff alleged their treatment of her amounted to medical malpractice in count 8 of the sixth amended complaint. Defendants Davis and Lerner, inventors of the Dalkon Shield, the intrauterine device (IUD) inserted in plaintiff for use as a contraceptive, were also charged with negligence in count 1. The medical malpractice claims against defendant doctors Baker, Brown and Smith (count 8) and the civil conspiracy (count 6) were dismissed. The trial court granted motions for nonsuit as to the fraud claims (counts 4 and 7).

The case against defendants Lerner and Davis went to the jury only on the issue of negligence. After evidence on all issues had been presented and all parties had rested, the trial court allowed the case to go to the jury on plaintiff's causes of action for negligence, strict liability and breach of express warranty, against defendant Robins but ordered the plaintiff's claims for punitive damages against Robins bifurcated, ruling that this claim would not go to the jury unless it returned a verdict on the issue of liability and general damages against defendant Robins.

The jury, after a nineteen-week trial and six days of deliberation, returned a nine to three general verdict against Robins for $600,000 general damages, exonerating the other defendants and, on a special verdict, found plaintiff did not contribute to her injuries. Defendant Robins then moved for a directed verdict on the bifurcated punitive damage issue. The motion was granted. Judgment on the verdict was entered and after the new trial motions of both plaintiff and defendant Robins were denied, these appeals followed.

3. FACTUAL BACKGROUND

On June 24, 1972, approximately seven weeks after giving birth to her second child, plaintiff had inserted into her uterus a Dalkon Shield, an intrauterine device, as a contraceptive. The Dalkon Shield IUD was manufactured and marketed by defendant Robins. The defendant sold the Shields only to doctors and not to the public, since the insertion of the device required medical expertise and equipment. Dr. Dekle, plaintiff's doctor who also placed the Dalkon Shield into her, testified he relied on sales promotion efforts of defendant Robins as well as his own experience in making his recommendations and in his continuing to use the device.

The Dalkon Shield is a small plastic device with a thin translucent plastic membrane sheet attached to a plastic outer rim or perimeter. This rim is serrated with fins or barbs on each side folded slightly backwards to hold the device in place in the uterine cavity preventing its involuntary expulsion. A black nylon string approximately four inches long is attached through an opening or hole in the device. When the Dalkon Shield is in place in the uterus, the string extends through the cervical canal and allows the physician or patient, by palpation The Dalkon Shield was developed by defendants Davis and Lerner. These defendants began a limited marketing venture of the device through a small company called the Dalkon Corporation. Defendant Davis published the results of testing the device for approximately one year on 640 Dalkon Shield insertions in the American Journal of Obstetrics and Gynecology in 1970. Defendant Robins purchased the Dalkon Shield in June 1970, and made several design changes in the product reducing its width, thinning the membrane sheet, thickening the tail or pull-tie area, rounding the fins or barbs and adding copper salt to the plastic base. ³ The modified product was not tested before marketing by defendant Robins and the advertising promotional material referred to the Davis published test results on the unmodified product.

to know that the device is in place or to remove it by pulling on the string.

Defendant Robins began marketing the product in January 1971. During the time before the Shield was placed in plaintiff, defendant Robins received numerous complaints from doctors that the product was causing pelvic inflammatory disease. These reports continued up to and after the device was removed from plaintiff on May 8, 1974.

In February and in June 1973, Dr. Baker ⁴ gave plaintiff a pelvic examination and saw the IUD string in the cervical opening, which meant it was in place. Plaintiff did complain of uterine spotting, cramps, pressure in her "public" [sic] region, and general fatigue. In December 1973, Dr. Baker found plaintiff to be pregnant and he found no IUD string at that time. He told her he did not know if she had lost it through expulsion or "where it is." Apprehensive that the Dalkon Shield was still inside "her body", she elected to terminate the pregnancy by a therapeutic abortion. Dr. Baker referred plaintiff to a planned parenthood clinic and gave her a note to give to the clinic stating that she had had a Dalkon Shield IUD but as no string was "apparent, please determine this." A Dr....