Love v. Wolf

• Decision Date: 17 April 1964
• Citation: 38 Cal.Rptr. 183,226 Cal.App.2d 378
• Court: California Court of Appeals Court of Appeals
• Parties: Carney L. LOVE, Plaintiff and Respondent, v. John WOLF, Parke-Davis and Company, a corporation, Defendants and Appellants. Civ. 10600.

Page 183

38 Cal.Rptr. 183

226 Cal.App.2d 378

Carney L. LOVE, Plaintiff and Respondent, v. John WOLF, Parke-Davis and Company, a corporation, Defendants and Appellants.

Civ. 10600.

District Court of Appeal, Third District, California.

April 17, 1964.

Rehearing Denied May 11, 1964.

Hearing Denied June 16, 1964.

Peters, Peters & Hoffman, Chico, Bronson, Bronson & McKinnon, San Francisco, for defendant-appellant Wolf.

Pillsbury, Madison & Sutro, Sedgwick, Detert, Moran & Arnold, San Francisco, Newton, Braun & Goodrich, Redding, for defendant-appellant Parke-Davis.

Boccardo, Blum, Lull, Niland & Teerlink, San Jose, for plaintiff-respondent.

PIERCE, Presiding Justice.

Plaintiff Carney L. Love suffered a serious and severe anemia following the administration of an antibiotic, chloromycetin, prescribed by defendant John Wolf, M.D., and manufactured by defendant Parke-Davis and Company. She recovered a judgment against these defendants after a jury trial and verdict in the sum of $334,046.00. They appeal. ¹

Misconduct of plaintiff's trial counsel, egregious beyond any in our experience or that related in any reported case brought to our attention has resulted in an unfair trial, a miscarriage of justice and requires us to reverse the judgment. Substantial evidence supported the verdict and judgment against the doctor (had the case been fairly presented). A new trial will be necessary against him. A closer question is raised by Parke-Davis' contention that it was entitled to a nonsuit and directed verdict. On review of the record has convinced us the evidence establishes a case against it sufficient for jury determination on the issue of the adequacy of its warning of known dangers of its product and Parke-Davis will also be held for the new trial.

Cholormycetin is the trade name for chloramphenicol, a wide-spectrum antibiotic, 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. It was first presented by the manufacturer in 1949.

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.' It is a rare and very frequently fatal (approximately 1,000 fatal cases annually in the entire United States) condition resulting in the depression or destruction of the blood-forming elements in the bone marrow. It was first diagnosed in 1888.

When in 1952 the Food and Drug Administration received reports of connection between use of chloromycetin and aplastic anemia it commenced an investigation, enlisting the aid of the National Research Council, a public body of distinguished scientists. Pursuant to this request the council appointed a committee to study chloromycetin, and the recommendations of this committee, accepted by the council, were also approved by the Food and Drug Administration. The latter's decision stated 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 statement noted the association of blood dyscrasias (including aplastic anemia) with the administration of chloromycetin and continued: '[a]lthough this complication has thus far been uncommon, it is sufficiently important to warrant a warning on the label, or packages of the drug and in advertisements of the drug and the recommendation that chloramphenicol not be sued indiscriminately or for minor infections,' and further '[w]hen prolonged or intermittent administration is required, adequate blood studies should be carried out.'

A specified cautionary warning for circulars or packages and labels was prescribed. ²

Parke-Davis immediately complied with the Food and Drug Administration's directive. Also, on July 7, 1952, it sent letters to 200,000 physicians. This letter advised 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. Other details will be discussed more fully later regarding warnings to the medical profession, Dr. Wolf's knowledge thereof, and of the drug's dangers; also regarding the promotion (and alleged over-promotion) and sale of chloromycetin during the period 1952-1958.

In September 1958 Mrs. Love had been consulting Dr. Wolf for a female condition. She had also had a tooth extracted by a dentist. On one of her visits to Dr. Wolf she complained of a sore gum. The testimony conflicts as to the nature and extent of the gum condition. The dentist, who was also treating her all during this period, described a 'dry socket,' an inflammation without swelling or infection; Dr. Wolf testified to an ulcerated, infected gum. He prescribed chloromycetin. The prescription was refilled.

On November 4, 1958, Mrs. Love consulted Dr. Wolf for bronchitis. The evidence also conflicts as to the seriousness of this condition. Again the doctor prescribed chloromycetin, and again the prescription was refilled several times. Altogether 96 capsules of 250 milligrams each were dispensed to plaintiff. Dr. Wolf took no cultures and made no blood tests.

Dr. Wolf last saw Mrs. Love professionally in December 1958. Aplastic anemia was diagnosed in the spring of 1959 by a Redding internist. She was referred to a Stanford hematologist, Doctor William P. Creger, who has treated her ever since. He was one of her expert witnesses at the trial.

Other facts will be related in the discussion of the several questions to be resolved on this appeal. Re the Contention of Prejudicial Misconduct of Plaintiff's Attorney.

During the course of the trial which extended over the period from February 7 to March 15, 1962, defendant Parke-Davis made 20 assignments of misconduct and a motion for a mistrial. Defendant Wolf joined in the latter motion. His brief cites 33 instances of counsel's misconduct. Regarding the charge of misconduct, the Parke-Davis brief asserts: 'They saturated the trial from opening statement to closing argument. With gross exaggeration in some cases and no shadow of justification in others, plaintiff's counsel charged that chloromycetin was a killer drug which should never have gone on the market; that its distribution was in wanton disregard of humanity; that the safety of its users was sacrificed to astronomical profits; that Parke-Davis bribed a federal official to keep the drug on the market.' Defendant Wolf, in addition, complains of numerous unjustified attacks by plaintiff's counsel upon the integrity of the attorneys for both defendants.

Because accusations of misconduct of counsel read out of context frequently exaggerate its seriousness and because the importance of this case justifies, we have been impelled to study, and have studied, a transcript of nine volumes (2,482 pages). Our own count shows 60 instances of plaintiff's counsel's flagrant misconduct. Our characterization is set forth in the second paragraph of this opinion.

Misconduct by plaintiff's attorney, Mr. Boccardo, permeated the proceedings. Counsel selected as his principal target Parke-Davis. Typical is the assertion in the opening statement that after Parke-Davis 'started to use this stuff all over the country came reports of people dying from it, people suffering from aplastic anemia and dying.' Mr. Boccardo declared that chloromycetin should never have been on the market and that 'what I have talked about now so far is evidence of absolute flagrant, wanton, negligence of failure to have any regard at all for humanity and the safety of people using this stuff.' He also stated: 'And all this time they knew that what it [chloromycetin] caused was nothing--it was only death. That is what it was causing, death.' Later in the trial counsel referred to chloromycetin as 'a death-dealing drug.' He also stated: 'There isn't a bigger con outfit in the world than Parke-Davis, and I will prove it before I get through with this case.' Earlier Mr. Boccardo had stated (with reference to the 'New Drug Application' leading to a permit to market the drug), 'Now the fact that they were able to con the Federal Drug Administration doesn't establish the fact, etc.' And finally in Mr. Boccardo's argument Parke-Davis became Fagin and Dr. Wolf, Oliver Twist. Then, mixing metaphors, Parke-Davis was a gangster and Dr. Wolf his gunman. Mr. Boccardo said:

'Did you ever hear of a Fagin, a guy that sits back and has a little kid go out and do the stealing? The gangster that sits back in protection in his apartment and points the finger at somebody? Somebody goes out voiltionally and rubs that fellow out with a gun, he is...