Jordan v. Ortho Pharmaceuticals, Inc., 04-83-00148-CV
| Decision Date | 31 July 1985 |
| Docket Number | No. 04-83-00148-CV,04-83-00148-CV |
| Citation | 696 S.W.2d 228 |
| Parties | Prod.Liab.Rep. (CCH) P 10,791 Cynthia Ann JORDAN and James Jordan, Appellants, v. ORTHO PHARMACEUTICALS, INC., et al., |
| Court | Texas Court of Appeals |
Eileen Flume, Flume & Flume, San Antonio, for appellants.
Bryan J. Maedgen, Royal Brin, Strasburger & Price, Dallas, Wade Sheldon, Thomas Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellees.
Before ESQUIVEL, CANTU and DIAL, JJ.
This is a drug products liability case in which appellants, plaintiffs below, allege that the use of Ortho Novum 1/80 21 and Ortho Novum 1/50 21, oral contraceptives manufactured, marketed and distributed by appellees, caused appellant, Cynthia Ann Jordan benign hepatic cellular adenomas (liver tumors) which ruptured without warning thereby causing multiple interrelated injuries.
Appellants' first amended petition charged appellees Ortho Pharmaceuticals, Inc., Ortho Pharmaceutical Corp. and Rolando A. Garza, d/b/a Harmony Hills Pharmacy with liability under various theories including negligence, negligence per se, strict liability and violation of the Deceptive Trade Practices-Consumer Protection Act, TEX.BUS. & COM.CODE ANN. § 17.41 et seq. A non suit was taken as to Garza.
Trial was to a jury which returned a verdict in favor of all the defendants. A take nothing judgment was entered in accordance with the verdict. Appellants' motion for new trial was overruled and this appeal followed.
Eight contentions are brought forth for review. By their first point of error appellants complain of the trial court's action in permitting the trial to proceed without an official court reporter.
The statement of facts before us consists of some nine bound volumes and two excerpts of transcribed testimony developed during trial on the merits and subsequent proceedings.
Seven of the volumes and one of the excerpts of transcribed testimony appear to have been taken by and are certified by an auxiliary court reporter as being a true and correct transcription of the proceedings attended. See TEX.R.CIV.P. 377(f). 1 These seven volumes and one excerpt comprise the trial on the merits and voir dire of the prospective jurors.
Two other volumes contain testimony developed at post verdict proceedings. These volumes are certified as being true and correct transcriptions of proceedings attended by a different court reporter. One excerpt containing the opening statement to the jury by counsel for Ortho appears to have been transcribed by a court reporter associated with a court reporting firm known as Moore and Howard, Inc. of San Antonio. The excerpt is not certified as required by Rule 377(f).
Appellants contend they are entitled to a new trial as a matter of law because the proceedings were not totally transcribed by the official court reporter.
At a hearing of a contest of the affidavit of inability to pay costs on appeal filed by appellants and of a motion to increase bond it was developed that appellees had arranged with the official court reporter for the providing of daily copy. The official court reporter testified that she had secured the services of a private court reporting firm to assist her with the preparation of daily copy. Two private court reporters were sent to assist the official court reporter in the preparation of the daily copy.
The record does not reveal which portions of the testimony were transcribed by which court reporter other than as earlier noted, by referring to the certificate attached to each volume.
Since all of the transcribed testimony before us is certified to by the official court reporter or the auxiliary court reporter, except for an excerpt containing twelve pages of opening statement by counsel for Ortho, we must assume, absent a showing to the contrary, that all of the statement of facts was prepared by duly qualified court reporters except for the portion containing the twelve pages aforementioned.
As we understand the complaint, appellants do not contend that they were deprived of a meaningful statement of facts. Rather their complaint is that since the statement of facts (prepared from the daily copy) was not entirely prepared by the official court reporter or a deputy court reporter qualified by the trial court, a new trial is mandated.
TEX.REV.CIV.STAT.ANN. art. 2323 (Vernon 1971) provides in pertinent part:
In case of illness, press of official work, or unavoidable disability of the official shorthand reporter to perform his duties in reporting proceedings in court, the judge of the court may, in his discretion, authorize a deputy shorthand reporter to act during the absence of said official shorthand reporter, and said deputy shorthand reporter shall receive, during the time he acts for said official shorthand reporter, the same salary and fees as the official shorthand reporter of said court, ... The necessity for a deputy official shorthand reporter shall be left entirely within the discretion of the judge of the court.
The following testimony was developed at the hearing contesting the affidavit of inability to pay costs on appeal.
Although appellants contend that parts of the statement of facts were prepared by unauthorized court reporters, the record does not substantiate their claim. The only witness whose testimony bears on qualification of the court reporters was unable to state that the court reporters were not sworn in by the trial court.
The burden was upon appellants to establish the existence of noncompliance with Article 2323. In the absence of some showing that there was noncompliance with the statute the presumption obtains that the proceedings in the trial court were regular and in compliance with the law. 1 C. McCORMICK & R. RAY, TEXAS LAW OF EVIDENCE § 98 (Texas Practice 2d ed. 1956); Dorfman v. Dorfman, 457 S.W.2d 417 (Tex.Civ.App.--Texarkana 1970, no writ).
We, therefore, presume that the trial court properly authorized the use of duly deputized court reporters to assist the official court reporter.
Moreover, we are not prepared to hold that reversal is mandated where appellants have not been deprived of a statement of facts and where no showing has been made that it contains testimony not given at trial or that it omits testimony actually given at trial. See Rule 377(f). In the absence of some showing that the statement of facts is not a true and correct transcription of the testimony given no harm or prejudice is perceived.
Appellants' first point of error is overruled.
In the next three points of error, appellants contend (1) that the trial court erred in refusing to submit their special issues inquiring whether appellees failed to warn of the specific danger which caused Mrs. Jordan's specific injury, (2) that the trial court erred in denying a new trial because the evidence conclusively established that Mrs. Jordan was not warned of the specific danger that caused her injury and further that the jury's refusal to find a failure to timely and adequately warn is so against the great weight and overwhelming preponderance of the evidence as to be manifestly wrong and unjust, and (3) that the trial court erred in denying a new trial because there is no evidence or sufficient evidence to support the jury's answer to issues number 7 and 17.
Appellants' requested special issues on failure to warn were as follows:
Do you find from a preponderance of the evidence that between October 31, 1972, and June 15, 1978, the Defendant, Ortho Pharmaceutical, failed to disclose to Cynthia Ann Jordan that benign hepatic cellular adenomas (liver tumors) have been associated with the use of Ortho-Novum?
Answer 'We do' or 'We do not.'
We the jury answer: ________________
Requested Special Issue No. 2 Do you find from a preponderance of the evidence that Ortho Pharmaceutical's failure to disclose that benign hepatic cellular adenomas (liver tumors) have been associated with the use of Ortho-Novum was a false, misleading or deceptive act or practice?
Conduct may be 'FALSE, MISLEADING, OR DECEPTIVE' even though it involves statements or representations that are literally true, if, when taken as a whole in light of the circumstances existing at the time it occurred, the conduct had the capacity or tendency to mislead. 'False, misleading, or deceptive' also includes the failure to disclose information that could affect the decision to buy or that would cure a misunderstanding that could result either from the statements or representations made or from other conduct.
Answer 'We do' or 'We do not.'
We the jury answer: ________________
The trial court submitted twelve special issues to the jury as to whether or not Ortho provided timely and adequate warning to the medical profession and to Mrs. Jordan of the potential harm, if any, from the use of Ortho-Novum.
The issues submitted, less appropriate definitions, were as follows:
Do you find from a preponderance of the evidence that prior to June 14, 1978, Ortho Pharmaceutical failed to provide a timely and adequate warning to the medical profession of the potential harm, if any, of Ortho-Novum to prospective consumers?
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