Magee v. Wyeth Laboratories, Inc.

• Decision Date: 22 March 1963
• Court: California Court of Appeals Court of Appeals
• Parties: Loramae H. MAGEE et al., Plaintiffs and Appellants, v. WYETH LABORATORIES, INC., a corporation, Defendant and Respondent. Civ. 26565.

Page 322

29 Cal.Rptr. 322

214 Cal.App.2d 340

Loramae H. MAGEE et al., Plaintiffs and Appellants, v. WYETH LABORATORIES, INC., a corporation, Defendant and Respondent.

Civ. 26565.

District Court of Appeal, Second District, Division 2, California.

March 22, 1963.

Austin, Austin, Jones & Chaffee, Compton, Richard M. Hawkins, Long Beach, for appellants.

Spray, Gould & Bowers, Joseph L. Spray, Los Angeles, for respondent.

ASHBURN, Justice.

Plaintiffs, the widow and children of Tarance S. Magee, deceased, appeal from an adverse judgment in an action for damages for wrongful death caused by administration of Sparine, a Promazine drug, with resulting Agranulocytosis and death.

Originally, Las Encinas Sanitarium, Wyeth Laboratories, Inc., and seven physicians and nine nurses were named as defendants but a settlement was reached before trial between plaintiffs and all defendants other than Wyeth Laboratories, Inc., whereby plaintiffs received the sum of $23,500 in exchange for a Covenant Not to Sue Further and the action was dismissed as to all of said defendants other than Wyeth. The cause proceeded to trial against Wyeth and a jury unanimously rendered a verdict in its favor.

Appellants assign as grounds for reversal the following. (1) Refusal to instruct the jury on breach of warranty, (2) erroneous admission into evidence of the final paragraph of a Report of the Council on Drugs of the American Medical Association, (3) exclusion of Report of Committee on Judiciary of United States Senate, (4) receiving over objection certain testimony of Dr. Keith Ditman, (5) misconduct of defense counsel in advising the jury that a settlement for $23,500 had been made with some defendants.

There is no substantial conflict in the evidence, which is presented through an engrossed settled statement. Mr. Magee, a practicing attorney, who was suffering from an emotional depression, entered Las Encinas Sanitarium on October 7, 1958. Between that date and November 17, 1958, when he died, he was administered the drug Sparine which was manufactured and sold by defendant Wyeth. On or about November 13, 1958 Mr. Magee contracted Agranulocytosis, a blood disorder wherein certain white corpuscles called granulocytes are greatly reduced or completely eliminated. The Statement says: 'The absence of these granulocytes deprive the human body of its mechanism in fighting infection and, thereafter, deceased became infected over most of his body which resulted in his death.'

I.

Dr. Dennis S. Shillam, who performed an autopsy and was the only doctor called by plaintiffs, said that Mr. Magee died of Agranulocytosis caused by the drug Sparine; also, 'that presumably the Agranulocytosis was the result of drug sensitivity but he had some doubts in his mind.' In the hospital records of the sanitarium he had recorded a diagnosis, reading in part, 'due to drug sensitivity?' The Statement says: 'Plaintiffs' counsel offered no medical testimony that in any way criticized Sparine or the literature that accompanied the drug, or promazine drugs in general.'

Sparine is a prescription drug, to be used only pursuant to prescription of a physician. There is nothing in the record to suggest that decedent purchased the drug himself or that it was administered in any manner other than injection by or under direction of the attending physician. Pamphlets and other literature on Sparine, such as a Direction Circular (exhibit 5) and a booklet entitled 'Current Clinical Reports on Sparine from the Literature' (exhibit 10) were furnished to the medical profession, for that is the group for whose use Sparine primarily is intended, and those documents were furnished to the Las Encinas group.

Dr. Herbert A. Duncan, one of the original defendants, called as a witness for plaintiffs, is a psychiatrist who has been employed by Las Encinas since 1946. He testified that Sparine and other Promazine drugs are widely used by psychiatrists in treatment of nervous diseases; that he and other doctors at Las Encinas used it extensively before and after the Magee illness. 'He testified that he read the direction sheet and literature left by Wyeth Laboratories, Inc. representatives prior to Mr. Magee's death, and knew, prior to Mr. Magee's death, that rare individuals might be sensitive to Sparine and other promazine drugs; that death might result in such rare individuals. Dr. Duncan, in no way, criticized Sparine or the literature that accompanied it and testified that he is still using the drug; that, in his opinion, it is a safe drug. Other than Mr. Magee's case, there were no other adverse reactions associated with the drug at the Las Encinas Sanitarium.'

Dr. Keith Ditman, a well-qualified psychiatrist, a Diplomate of the American Board of Neurology and Psychiatry, 'testified that he has used Sparine and promazine drugs since they were put on the market in 1956 and that he has used these drugs in hundreds of cases; that the Council on Drugs of the American Medical Association, on occasion, solicit his opinion as to particular drugs. He testified that in his opinion, Sparine is a safe and adequate drug; that, in fact, Sparine is safer than most similar drugs in that it has fewer side effects, and in other particulars.' Also, 'he testified that promazine drugs had been a greater revolution to medicine than antibiotics; that thousands and thousands of mental patients have been restored to normal life through the use of Sparine and similar promazine drugs. He testified that medical knowledge is such at the present time that it is impossible to manufacture drugs that rare individuals will not be sensitive to; that all drugs have side effects with rare individuals, including aspirin and penicillin; that approximately 200 people a year die from sensitivity to penicillin; that Sparine is a far safer drug than penicillin. He testified that Agranulocytosis is a very serious complication and if a patient develops the condition he must have immediate attention or he will not survive.'

Returning now to the testimony of Dr. Duncan. He had read the Direction Circular (exhibit 5) and other literature which was furnished periodically by Wyeth and 'knew, prior to Mr. Magee's death, that rare individuals might be sensitive to Sparine and other promazine drugs; that death might result in such rare individuals.' Also was familiar with the following portion of the document: 'Agranulocytosis has occurred in 18 instances from some 3 1/2 million patients who have received the drug. Patients should be observed frequently and asked to report immediately any sudden appearance of any signs of infection, if white blood cell counts and differential smears give an indication of severe cellular depression the drug should be discontinued and antibiotic and other suitable therapy should be initiated.' He also testified, 'that Tarence Magee entered the Sanitarium on October 7, 1958 and received Sparine in heavy doses from about this time until November 14 or November 15. He developed a temperature and sore throat on November 14 or 15, 1958; that this condition became progressively worse. No white cell blood count was ever done until November 15th or 16th. That the white cell count was reported critically low; that no specialist was called on the case until November 17, 1958, when Dr. Edward R. Evans, a specialist in internal medicine, was called in and determined that Tarence Magee was acutely ill with Agranulocytosis; that this diagnosis was not made until November 17, 1958. There was no testimony that Mr. Magee had been instructed to report any of the signs of Agranulocytosis, as suggested by the Direction Circular. The matters set forth in the above paragraph also appeared in the hospital records of the Las Encinas Sanitarium.'

The question of whether plaintiffs' requested instruction should have been given is the important one in the case. No warranty instruction was requested until after the evidence had been concluded (see, Code Civ.Proc. § 607a); the judge indicated that plaintiffs' requests on warranty were erroneous but said he would give further consideration to same if revised. Counsel argued both negligence and warranty. No revised instruction was submitted until after the judge had begun to deliver his instructions. The Statement says that no instruction on warranty was given and the only such request before the court seems to have been number 11, for that is the only one in our record. ¹

We are not confronted with any problem of privity of contract for that element is no longer necessary to a warranty of food or drugs. (See Greenman v. Yuba Power Products, Inc., 59 A.C. 67, 71, 73, 27 Cal.Rptr. 697, 377 [214 Cal.App.2d 348] P.2d 897; Gottsdanker v. Cutter Laboratories, 182 Cal.App.2d 602, 607, 6 Cal.Rptr. 320, 79 A.L.R.2d 290.)

Manifestly, this proposed instruction is erroneous; it assumes, without supporting evidence, that decedent 'did actually or by implication make known to defendant the purpose for which said drug was to be used, and directly or impliedly relied upon the skill and judgment of the defendant in relation thereto.' The inescapable inference is that Mr. Magee did not purchase this drug or rely upon the skill or judgment of anyone other than his physicians and the hospital staff. It was administered intravenously or intramuscularly, and there is no evidence to the effect that decedent knew the identity of the drug given him or whence it came. Appellant's counsel conceded on oral argument that Mr. Magee did not know what medicine he was taking.

The instruction would leave to the jury the question of whether the drug 'was in fact a proximate cause of the death of said decedent.' As we have no other instructions upon any subject in the record it is to be presumed that the trial judge accurately and fully instructed upon the subject of proximate cause. But there is no showing that the jury had any enlightenment upon the subject of superseding causes in a case of this...