Love v. Wolf

• Citation: 58 Cal.Rptr. 42,249 Cal.App.2d 822
• Court: California Court of Appeals
• Decision Date: 30 March 1967
• Parties: Edward LOVE, Special Administrator of the Estate of Carney L. Love, Deceased, Plaintiff and Respondent, v. John WOLF and Parke-Davis and Company, Defendants and Appellants. Civ. 11288.

Page 42

58 Cal.Rptr. 42

249 Cal.App.2d 822

Edward LOVE, Special Administrator of the Estate of Carney L. Love, Deceased, Plaintiff and Respondent, v. John WOLF and Parke-Davis and Company, Defendants and Appellants.

Civ. 11288.

Court of Appeal, Third District, California.

March 30, 1967.

Rehearing Denied April 19, 1967.

Rust & Hoffman, by Robert Hoffman, Sacramento, for appellant wolf.

Pillsbury, Madison & Sutro, by Noel Dyer and Noble K. Gregory, San Francisco, and Glenn D. Newton, Redding, for appellant Parke-Davis.

Boccardo, Blum, Lull, Niland, Teerlink & Bell, by Edward J. Niland, San Jose, for respondent.

BRAY, Associate Justice (Assigned).

Defendant Wolf appeals from an order granting plaintiff a new trial and defendant Parke-Davis and Company appeals from the judgment in favor of plaintiff in the sum of $180,000 and from the order granting plaintiff a new trial on the issue of damages only. ¹

QUESTIONS PRESENTED

A. Wolf appeal from order granting new trial.

1. Alleged abuse of discretion in granting new trial.

B. Defendant Parke-Davis appeal from judgment.

1. Alleged errors in admission of evidence.

(a) Later warning label.

(b) Dr. Wolf's testimony concerning the warnings.

2. Refusal to give a certain instruction.

3. Alleged misconduct of judge.

4. Were the verdicts inconsistent?

C. Defendant Parke-Davis appeal from order granting new trial on damages alone.

1. Effect of section 573 of the Probate Code.

2. Plaintiff's waiver of right to limited new trial.

D. The partial satisfaction of judgment.

RECORD

Plaintiff Carney L. Love (Mrs. Love) filed this action against defendant John Wolf, a medical doctor, and defendant Parke-Davis and Company (Parke-Davis), a pharmaceutical company, for damages alleged to have been sustained by plaintiff when she developed aplastic anemia following the administration of an antibiotic chloromycetin, prescribed by Dr. Wolf and manufactured by Parke-Davis. At a first trial plaintiff recovered judgment against both defendants for $334,046. This judgment was reversed on appeal because of misconduct of plaintiff's trial attorney. (Love v. Wolf (1964) 226 Cal.App.2d 378, 38 Cal.Rptr. 183.) At the second trial, the subject of this appeal, plaintiff recovered a judgment of $180,000 against Parke-Davis. Dr. Wolf obtained a defense verdict. On plaintiff's motion the trial court ordered a new trial as to Dr. Wolf and a new trial as to Parke-Davis on the issue of damages only. Each defendant separately appealed.

Chloromycetin is the trade name for CHLORAMPHENICOL. It is a 'broad spectrum' antibiotic drug, meaning that it is an agent effective to kill or stop the growth of a wide variety of disease-causing organisms in human beings. This drug was developed and is exclusively manufactured by Parke-Davis. It may be administered only by doctors or on their prescriptions.

In 1952, three years after the introduction of the drug, instances had been reported of association of aplastic anemia with its use. Aplastic anemia is one of a number of 'blood dyscrasias' (ill condition of the blood). The Food and Drug Administration caused an investigation to be made of the drug and its association with aplastic anemia. Thereafter the Food and Drug Administration decided that it had 'weighed the value of the drug against its capabilities for causing harm and has decided that it should continue to be available for careful use by the medical profession in those serious and sometimes fatal diseases in which its use is necessary.'

The drug is required to be manufactured in accordance with standards prescribed by the Administration and before the drug can be distributed it must be tested by it and certified as having such characteristics of strength, quality and purity to insure safety and efficacy of use as are prescribed in the regulation. A specified cautionary warning for circulars or packages and labels is prescribed by the Administration. The required language of these is set forth in Love v. Wolf, supra, 226 Cal.App.2d page 383, 38 Cal.Rptr. 183. Parke-Davis complied with this directive. It is conceded that the drug used in this case was pure and uncontaminated.

Aplastic anemia is very rare, about 1,000 fatal cases from that cause being noted in this country yearly. In 1952 Parke-Davis sent letters to 200,000 physicians advising them 'of the association between chloromycetin and aplastic anemia (also other blood dyscrasias) stating the number of cases was unknown 'but it recognized that many have terminated fatally.' It particularly warned of dangers from intermittent therapy and 'indiscriminate therapy for minor infections.' It pointed to indications of a 'calculated risk involved in the use of this potent antibiotic so that alert clinical observations and adequate blood studies should be made to detect any depression of bone marrow function as early as possible, and before any irreversible state occurs.' This was followed by another similar letter on August 12, 1952. The first letter promised: 'as information accumulates from continuing studies on the relation of blood disorders to chloromycetin it will be disseminated promptly through appropriate channels.'

'These letters were intended to reach all doctors and pharmacists in the United States. They were supplemented by fullpage announcements in the American Medical Association Journal. Advertisements and promotional material distributed by the company since 1952 have contained a condensed warning similar to that on the packages and the labels.' (226 Cal.App.2d, pp. 383--384, 38 Cal.Rptr. p. 185.)

In August 1958 plaintiff had several teeth extracted. An infection or inflammation developed in one of the sockets. She consulted Dr. Wolf who had previously treated her for another ailment. He prescribed chloromycetin. The prescription was refilled. On November 4, 1958, plaintiff consulted Dr. Wolf for bronchitis. He again prescribed chloromycetin. The prescription was refilled several times. Altogether 96 capsules of 250 milligrams each were dispensed to plaintiff. The pharmacist who sold the drug to plaintiff was joined in this action as a defendant. At the first trial the jury's verdict was in his favor and was not appealed. Dr. Wolf last saw plaintiff professionally in December 1958. In the spring of 1959 aplastic anemia was diagnosed. She had been under treatment for aplastic anemia until the time of her death, subsequent to the rendition of judgment herein.

In its appeal from the judgment of liability Parke-Davis does not claim insufficiency of the evidence to support the judgment. It therefore becomes unnecessary to discuss the evidence in detail. While the evidence at the second trial was not precisely the same as at the first trial, it was sufficiently similar that the recital of the first trial evidence in Love v. Wolf, supra, 226 Cal.App.2d 378, 38 Cal.Rptr. 183, gives an excellent idea of the evidence adduced at the second trial justifying a finding by the jury of overprescription by Dr. Wolf proximately caused by overpromotion of the drug by Parke-Davis.

A. Dr. Wolf Appeal.

1. No abuse of discretion in granting new trial.

In his opening brief defendant Wolf (citing Arroyo v. Arden Farms Co. (1966) 239 Cal.App.2d 332, 334, 48 Cal.Rptr. 740, and Brown v. Reliable Iron Foundry, Inc. (1959) 174 Cal.App.2d 294, 298, 344 P.2d 633) concedes that in order to obtain a reversal of the order granting new trial, which was on the sole ground of insufficiency of the evidence to support the verdict, the general rule is that he must show that there is no substantial evidence which would support a judgment against him and in favor of plaintiff.

He also concedes that there is sufficient evidence in the record to have supported a verdict in favor of plaintiff if the trier of fact chose to believe that Dr. Wolf's action in 1958 of prescribing chloromycetin to plaintiff for her gum condition and bronchitis was not good medical practice or that Dr. Wolf authorized the refills of his two prescriptions.

He contends that from the very inception of the case the trial court was strongly biased in plaintiff's favor and that such bias was the motivating and controlling factor in the trial court's decision to grant the new trial rather than the stated ground of insufficiency of the evidence.

Dr. Wolf's concession that there was sufficient evidence to have supported a verdict against him is a concession that the court could have properly granted a new trial on the ground of insufficiency of the evidence had the court given due consideration to the matter and passed upon the motion for new trial free from alleged partiality, sympathy or prejudice.

Therefore, we need not set out in detail the evidence concerning Dr. Wolf's liability. It, like the evidence concerning Parke-Davis' liability, is similar to that at the first trial which is set out in detail in Love v. Wolf, supra. Our task, then, is to determine whether the trial judge's order was not based upon a consideration of the evidence but on the ulterior motives ascribed to him.

On the hearing of the motion for new trial the judge stated that on a motion for new trial 'the trial judge has the right and power to pass upon the evidence again, to weigh it, to ascertain if in his opinion, after a study from the evidence, and inferences that might be drawn from it * * * whether a new trial should be granted.' He then quoted the dissenting opinion in McCordic v. Crawford (1943) 23 Cal.2d 1, 9, 142 P.2d 7, 11, a part of which quotation is that 'the interests of justice may require an independent reweighing of the evidence by the trial judge after rendition of the verdict by the jury, * * *.'

The judge continued with his statement: 'In this case I feel that the evidence introduced was substantially similar to the evidence introduced at the first trial. Now, I am going to refer to the case of Love versus Wolf, 226 ACA 482 (226 Cal.App.2d 378, 38 Cal.Rptr. 183), and I am going to refer in that...