London v. Lederle Laboratories, Div. of American Cyanamid Co.

• Decision Date: 30 April 1996
• Parties: , Prod.Liab.Rep. (CCH) P 14,621 Cathy A. LONDON, Plaintiff-Respondent Cross-Appellant, v. LEDERLE LABORATORIES, a DIVISION OF AMERICAN CYANAMID COMPANY, Defendant-Appellant, Cross-Respondent, and E.R. Squibb & Sons, Inc., Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 318

290 N.J.Super. 318

675 A.2d 1133, Prod.Liab.Rep. (CCH) P 14,621

Cathy A. LONDON, Plaintiff-Respondent Cross-Appellant, v. LEDERLE LABORATORIES, a DIVISION OF AMERICAN CYANAMID

COMPANY, Defendant-Appellant, Cross-Respondent,

and

E.R. Squibb & Sons, Inc., Defendant.

Superior Court of New Jersey,

Appellate Division.

Argued March 26, 1996.

Decided April 30, 1996.

William C. Slattery, Short Hills, argued, for appellant (Slattery & McElwee, attorneys; Kevin R. Jespersen, on the brief).

James I. Peck, IV, West Orange, argued, for respondent.

Before Judges DREIER, ARNOLD M. STEIN and KESTIN.

The opinion of the court was delivered by

DREIER, P.J.A.D.

Defendant, Lederle Laboratories, appeals from a judgment in favor of plaintiff Cathy A. London in the net amounts of $43,200 for dental expenses and $7500 for past and future pain, suffering and emotional distress. Plaintiff cross-appeals from the amount of the judgment and requests additur, a new trial, and a further remand for a jury to determine whether punitive damages should be awarded.

The underlying facts are those of a typical damage claim based upon tetracycline having stained plaintiff's teeth when she was a young child. See, e.g., Savage v. Old Bridge-Sayreville Med. Group, 134 N.J. 241, 633 A.2d 514 (1993); Feldman v. Lederle Labs., 132 N.J. 339, 625 A.2d 1066 (1993); Apgar v. Lederle Labs. 123 N.J. 450, 588 A.2d 380 (1991). A companion case, Batson v. Lederle Labs., 290 N.J.Super. 49, 674 A.2d 1013 (App.Div.1996), also decided by us today, involves a similar claim by plaintiff's sister. ¹

Plaintiff, Cathy London, was born October 1, 1957. As a child, she periodically suffered from upper respiratory infections. During the first ten years of years of her life, she was treated for these illnesses exclusively by the family physician, Robert L. Pierce, M.D.

Dr. Pierce regularly treated childhood infections with a particular class of antibiotics known as tetracycline. On fourteen different occasions from January 8, 1958 through September 4, 1964, Dr. Pierce prescribed various brands of tetracycline to treat plaintiff's infections; he specifically prescribed brands of tetracycline manufactured by defendant Lederle on eleven of those occasions. Until February 4, 1963, Dr. Pierce had prescribed for plaintiff only Achromycin and Declomycin, both of which are Lederle products. Thereafter, on April 4, 1963 and September 4, 1964, he supplied plaintiff with prescriptions for Terramycin, a Pfizer drug, and on May 6, 1964 he prescribed Mysteclin F, a Squibb product. Overall, plaintiff received tetracycline prescriptions twice in 1958, four times in 1959, twice in 1960, once in 1961, once in 1962, twice in 1963 (one time from Lederle; one time from Pfizer), and twice in 1964 (one time from Squibb; one time from Pfizer). ²

The ingestion of tetracycline drugs, particularly during the period from birth through the time a child is approximately eight years old, has the capacity to stain and discolor bones and teeth. Plaintiff's teeth exhibit the type of staining associated with the use of tetracycline.

At trial, Dr. Pierce testified that he would not have prescribed Achromycin and Declomycin when he did if he had been aware of their side effects, unless "due to other circumstances you can't use anything but." However, at a 1989 pre-trial deposition, the doctor had agreed that he was aware of the correlation between tetracycline and tooth-staining in March of 1964, prior to the time he prescribed the Squibb and Pfizer products. This statement was brought to the jury's attention during the doctor's cross-examination. The doctor further agreed that plaintiff had never presented an illness that would require him to "override [his] best judgment and use tetracycline to treat her although [he] knew that it was possibly going to stain [plaintiff's] teeth."

Plaintiff testified that other children teased her about the discoloration of her teeth and she grew to be extremely self-conscious about smiling, shy and withdrawn. She would like to have had her teeth capped, but could not afford the cost due to her low-wage jobs. She is college educated, and originally considered a teaching career, but rejected teaching because of her shyness. Plaintiff's prosthodontist estimated that capping her entire mouth would cost $28,800 and that the caps would have to be replaced "a couple of times" or "several times." He estimated that the caps provided in each procedure would have lasted ten years.

The jury was presented with a series of twelve special interrogatories on which they noted their verdict. The interrogatories, along with the verdicts, are as follows:

1. WHEN DID LEDERLE HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE TOOTH STAINING

EFFECT OF TETRACYCLINE?

APPROXIMATE DATE: 58/59

2. DID LEDERLE ACT REASONABLY IN AWAITING FDA APPROVAL BEFORE ISSUING A WARNING

FOR TETRACYCLINE?

YES: NO: X

IF YOUR ANSWER TO QUESTION # 2 IS "YES"--STOP--YOU HAVE REACHED A VERDICT FOR

DEFENDANT

3. FOR EACH INGESTION OF TETRACYCLINE DID CATHY LONDON'S TREATING PHYSICIAN

PRESCRIBE IT FOR ITS INTENDED PURPOSE OR IN A WAY THAT WAS REASONABLY

FORESEEABLE TO LEDERLE?

YES: NO: X

IF YOUR ANSWER TO QUESTION # 3 IS "NO" AS TO ANY INGESTION ANSWER QUESTION # 4

4. IF YOUR ANSWER TO QUESTION # 3 IS "NO" PLEASE INDICATE ON WHICH OF THE

INGESTION DATES THAT CATHY LONDON'S TREATING PHYSICIAN FAILED TO PRESCRIBE

TETRACYCLINE FOR ITS INTENDED PURPOSE OR IN A WAY THAT WAS NOT REASONABLY

FORESEEABLE TO LEDERLE.

ALL INGESTIONS:

SOME INGESTIONS: X

IF SOME, PLEASE SPECIFY DATES:

5"6"64

9"4"64

5. WERE THE INGESTIONS OF TETRACYCLINE, MANUFACTURED BY LEDERLE, A SUBSTANTIAL

FACTOR IN THE OVERALL STAINING OF PLAINTIFF'S TEETH?

YES: X NO:

6. IF THE ANSWER TO QUESTION # 5 IS "YES" PLEASE INDICATE WHICH OF THE

INGESTIONS INDICATED IN RESPONSE TO QUESTION # 4, BY DATE, WERE A SUBSTANTIAL

FACTOR IN STAINING PLAINTIFF'S TEETH.

ALL INGESTIONS: X

SOME INGESTIONS: ________

IF SOME, PLEASE SPECIFY DATES:

7. DID PLAINTIFF PROVE THAT A PORTION OF THE TOOTH STAINING, WHICH RESULTED

FROM AN INGESTION OF LEDERLE PRODUCTS OCCURRED WHILE THE PRODUCT MANUFACTURED

BY LEDERLE WAS DEFECTIVE?

YES: X NO:

IF "NO"--STOP--YOU HAVE REACHED A VERDICT FOR DEFENDANT

8. IF YOUR ANSWER TO QUESTION # 7 IS "YES" WHAT PERCENTAGE OF THE TOTAL TEETH

STAINING EXISTED WHILE THE PRODUCT MANUFACTURED BY LEDERLE WAS DEFECTIVE?

50%

9. HAD AN ADEQUATE TOOTH STAINING WARNING BEEN GIVEN BY LEDERLE, WOULD CATHY

LONDON'S TREATING PHYSICIAN HAVE PRESCRIBED TETRACYCLINE TO PLAINTIFF CATHY

LONDON ANYWAY?

YES: 7 [SIC] NO:

10. WHAT AMOUNT OF MONEY WOULD REASONABLY COMPENSATE PLAINTIFF FOR HER

REASONABLE DENTAL EXPENSES OVER HER PROJECTED LIFETIME?

$86,400 LESS 50% PER QUESTION # 8

11. WHAT AMOUNT OF MONEY WILL REASONABLY COMPENSATE PLAINTIFF FOR BOTH HER PAST

AND FUTURE PAIN, SUFFERING AND EMOTIONAL DISTRESS?

$15,000

12. DID PLAINTIFF PROVE BY A PREPONDERANCE OF THE CREDIBLE EVIDENCE THAT

DEFENDANT WAS GUILTY OF CONDUCT SUCH AS TO JUSTIFY AN AWARD OF PUNITIVE

DAMAGES?

YES: NO: X

IF YOUR ANSWER TO # 12 IS "YES"--

*DO NOT AWARD A SPECIFIC AMOUNT OF MONEY AT THIS STAGE AS TO PUNITIVE DAMAGES

The sum of the jury's responses awarded plaintiff a total of $50,700 (one-half of $101,400).

a.

In its response to interrogatory number nine, the jury found that plaintiff's treating physician would have prescribed "tetracycline" to her even if he had received an adequate tooth-staining warning from Lederle. Defendant argues that this result negates proximate cause in that it constitutes a finding that defendant's failure to warn could not have been a substantial factor in plaintiff's injuries because even a timely warning would not have been heeded. Defendant contends that since plaintiff failed to prove proximate cause, judgment should have been entered in its favor.

The jury's conclusion that Dr. Pierce would have prescribed tetracycline despite a warning from Lederle must be read in conjunction with its findings on question four. There, it responded that Dr. Pierce "failed to prescribe tetracycline for its intended purpose or in a way that was not reasonably foreseeable to Lederle" on May 6, 1964 and on September 4, 1964 (after he received Lederle's warning in March of 1964). On these dates, he prescribed non-Lederle products, but the jury apparently reasoned that Lederle's warning would not have altered the doctor's behavior on these dates because there was evidence that he continued to prescribe tetracycline. But nowhere did the jury find specifically that Dr. Pierce would have prescribed tetracycline for plaintiff from birth to eight years of age had he known of the harmful effect. The jury may have meant to express this by its answer; it might also have just answered the interrogatory literally.

A plaintiff asserting a cause of action based on failure to warn must establish all the same elements required for an action based on a defective product. Coffman v. Keene Corp., 133 N.J. 581, 594, 628 A.2d 710 (1993). Thus, plaintiff must prove that the product was defective, that the defect could cause injury to a reasonably foreseeable user, and that the defect was the proximate cause of the plaintiff's damages. Id. at 593-94, 628 A.2d 710; Freund v. Cellofilm Properties, Inc., 87 N.J. 229, 241, 432 A.2d 925 (1981). Generally, a product is considered to be defective when it is not "reasonably fit, suitable and safe for its intended or foreseeable purposes." Freund v. Cellofilm, 87 N.J. at 242, 432 A.2d 925 (quoting Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 176, 406 A.2d 140 (1979)). In a failure-to-warn case, the defect consists of the absence of a warning concerning the product's potential for injury, and the plaintiff must prove that the warning's absence was a proximate cause of the harm. Coffman v. Keene Corp., 133 N.J. at 593-94, 628 A.2d 710; see N.J.S.A. 2A:58C-2. Where the failure-to-warn case involves a prescription...