May v. Parke, Davis & Co.

• Decision Date: 12 July 1985
• Docket Number: Docket No. 73452
• Citation: 370 N.W.2d 371,142 Mich.App. 404
• Parties: Alan MAY, Plaintiff-Appellee, v. PARKE, DAVIS & COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 371

370 N.W.2d 371

142 Mich.App. 404

Alan MAY, Plaintiff-Appellee, v. PARKE, DAVIS & COMPANY, Defendant-Appellant.

Docket No. 73452.

Court of Appeals of Michigan.

Submitted Dec. 4, 1984.

Decided May 6, 1985.

Released for Publication July 12, 1985.

Thomas H. Bleakley, P.C., by Brian J. McKeen, Detroit, for plaintiff-appellee.

Miller, Canfield, Paddock & Stone, by Wolfgang Hoppe, Gillian Steinhauser, and Sally L. Geib, Detroit, for defendant-appellant.

Before HOOD, P.J., and T.M. BURNS and BELL, ^* JJ.

T.M. BURNS, Judge.

Defendant appeals as of right from a jury verdict rendered against it and an award of damages in the sum of $2,275,000.

In the Fall of 1975, plaintiff's decedent, Martha Sue Ash, a 20-year-old college student, sought birth control information from Dr. Harold Reid in contemplation of her upcoming marriage. Dr. Reid prescribed Norlestrin 1 mg., which is a birth control pill manufactured and sold by defendant, Parke, Davis & Company. Norlestrin 1 mg. contains 50 mcg. of ethinyl estradiol, a synthetic estrogen.

On December 1, 1975, Ms. Ash began taking one of these pills daily in accordance with the prescription. On December 20, 1975, approximately 19 days later, Ms. Ash suddenly collapsed and lapsed into unconsciousness. She was immediately admitted to the hospital. After varying periods of consciousness, she lapsed into a coma and died on December 26, 1975.

Dr. Gordan Ohl performed an autopsy on Ms. Ash on December 27, 1975. He concluded that the cause of death was a blood clot in the brain which caused destruction in the brain stem. He also found multiple pre-mortem blood clots in the lungs, measuring up to 5 centimeters in their greatest dimension.

Plaintiff, the personal representative of decedent's estate, brought this wrongful death action against defendant alleging inter alia that defendant was negligent in failing to inform Dr. Reid that: 1) the dosage level of estrogen in the birth control pill Norlestrin created a greater risk of blood clotting in users than birth control pills containing lower dosages of estrogen; 2) a family history of strokes in a patient contemplating the use of birth control pills is an indicator of blood clotting potential in a person; 3) certain blood tests are useful in screening potential users of birth control pills for hyper-coagulability (a predisposition to blood clotting problems); and 4) persons with Blood Type A have a greater risk of blood clotting potential by using birth control pills. ¹

At trial, plaintiff presented two medical experts, Dr. John Hillabrand and Dr. Robert Laird. Both of these experts concluded that Ms. Ash's death was caused by Norlestrin. They also concluded that Ms. Ash had Blood Type A because of her parents' blood types, that she suffered cerebral vascular and pulmonary emboli, and that the clots developed after taking 19 consecutive birth control pills. Their opinions were also based, in part, upon reports in medical journals which indicated that women with Type A blood who also took birth control pills suffered from blood clotting disorders three times as often as women with other blood types under similar circumstances. Both experts concluded that defendant should have warned of these risks.

Dr. Laird also testified that two simple lab tests can be performed to measure the thrombin (blood clotting factor) and anti-thrombin (thrombin inhibitor) levels. He indicated that if these tests had been performed on Ms. Ash before she began using the pill, they probably would have indicated abnormal levels of thrombin or anti-thrombin. The prescribing information provided by defendant for Norlestrin in 1975 did not refer to or recommend such blood testing. Dr. Laird, therefore, was of the opinion that the prescribing information for Norlestrin did not adequately reflect the state of knowledge at the time concerning blood testing for hyper-coagulability.

At the close of plaintiff's proofs, defendant moved for a directed verdict. The trial court denied defendant's motion. Defendant then offered the testimony of Dr. Julian Ambrus. Dr. Ambrus testified that there was only a 50 percent chance that Ms. Ash had Blood Type A. Dr. Ambrus testified that the only way to determine a blood group is to perform a specific laboratory test and that since no blood-type testing was done on decedent, he was unable to determine her blood type. He specifically rejected the articles in the medical journals, which were relied upon by plaintiff's experts, as a basis for determining blood type. Dr. Ambrus also testified that tests recommended by Dr. Laird would not identify women who are hyper-coagulable before they begin taking oral contraceptives. While Dr. Ambrus found that certain hemotalogic workups would be useful, he also noted that they would be so expensive that they would not be practical to administer to every woman taking birth control pills.

Dr. Ambrus testified that he had two possible theories as to the cause of Ms. Ash's death: 1) that she suffered an arythmia or irregular heart beat, which allowed for the formation of blood clots which then travelled to the brain and lungs; or 2) a blood vessel burst in her brain.

Defendant then presented a neurologist who supported Dr. Ambrus's theory that blood clots were formed by an irregular heart beat. On rebuttal, plaintiff presented the testimony of a thoracic cardiovascular surgeon who examined a tissue slice from decedent's heart and found no evidence of a virus, inflammation, or any other heart disease which would have caused decedent's heart to beat irregularly.

The jury returned a verdict in favor of plaintiff and awarded damages in the amount of $2,275,000. Defendant then filed a motion for a new trial or in the alternative for judgment notwithstanding the verdict, making the same allegations of error that it now makes on appeal. The trial court denied defendant's motion. Defendant then appealed as of right to this Court.

On appeal, defendant claims that it cannot be held liable for decedent's death because of several defects in plaintiff's case. The essence of these claims is that plaintiff has failed to make a prima facie case of negligence and therefore the trial court improperly denied defendant's motion for a new trial or, in the alternative, judgment notwithstanding the verdict.

It is within the trial court's sound discretion to grant or deny a motion for new trial. Wigginton v. City of Lansing, 129 Mich.App. 53, 60, 341 N.W.2d 228 (1983), lv. den. 419 Mich. 880 (1984). The standard of review is whether the jury's verdict was against the overwhelming weight of evidence. Wigginton, supra, citing Drouillard v. Metropolitan Life Ins. Co., 107 Mich.App. 608, 623, 310 N.W.2d 15 (1981), lv. den. 413 Mich. 874 (1982). A reviewing court affords deference to the trial judge's decision since the trial judge, having heard the witnesses, is uniquely qualified to judge the jury's assessment of their credibility. Drouillard, supra. This Court will not substitute its judgment for that of the jury unless a review of the record reveals a miscarriage of justice. Groth v. DeGrandchamp, 71 Mich.App. 439, 446, 248 N.W.2d 576 (1976).

In reviewing a trial court's refusal to grant a motion for directed verdict or judgment notwithstanding the verdict, we must view the evidence in a light most favorable to plaintiff to determine whether plaintiff has established a prima facie case of negligence. Caldwell v. Fox, 394 Mich. 401, 407, 231 N.W.2d 46 (1975); Taylor v. Wyeth Laboratories, Inc., 139 Mich.App. 389, 362 N.W.2d 293 (1984). To establish a prima facie case of negligence, plaintiff must prove the existence of a legal duty which defendant owes to plaintiff, that defendant failed to exercise ordinary care in performing this duty, and that plaintiff suffered damages proximately resulting from defendant's negligence. Clark v. Dalman 379 Mich. 251, 150 N.W.2d 755 (1967); Muilenberg v. The Upjohn Co., 115 Mich.App. 316, 330, 320 N.W.2d 358 (1982). A plaintiff must present proof on each of these four elements to establish a prima facie case. Beals v. Walker, 98 Mich.App. 214, 296 N.W.2d 828 (1980), rev'd. on other grounds, 416 Mich. 469, 331 N.W.2d 700 (1982). The case should be removed from the jury's consideration only if the evidence demonstrates with the utmost clarity that plaintiff failed to present sufficient proofs on these elements. Krugh v. Miehle Co., 503 F.2d 121 (CA 6, 1974).

Plaintiff's theory of negligence is premised on defendant's warning regarding the use of Norlestrin. In Dunn v. Lederle Laboratories, 121 Mich.App. 73, 78-80, 328 N.W.2d 576 (1982), this Court stated the law applicable to such a claim:

"Unavoidably unsafe products must be properly marketed with adequate warnings of their dangers. See Calabrese v. Trenton State College, 162 NJ Super 145; 392 A2d 600, 604 (1978), aff'd 82 NJ 321; 413 A2d 315 (1980) (rabies vaccine).

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"The manufacturer must adequately warn of dangers it knows or had reason to know of. 2 Restatement Torts, 2d, Sec. 388, pp 300-301. In this respect, the manufacturer is held to the knowledge of an expert and is presumed to know of scientific studies and articles concerning the safety of its products. Borel v. Fibreboard Paper Products Corp, 493 F2d 1076, 1089 (CA5, 1973), cert den 419 US 869; 95 S Ct 127; 42 L Ed 2d 107 (1974); Krug v. Sterling Drug, Inc, 416 SW2d 143, 149 (Mo, 1967). Taking this knowledge into consideration, the adequacy of a warning is an issue of reasonableness. Smith v. E R Squibb & Sons [405 Mich. 79, 273 N.W.2d 476 (1979) ], supra, 90. Reasonableness is a question of fact."

In the instant case, plaintiff presented testimony to support the claim that the warnings provided by defendant in 1975 regarding the use of Norlestrin were inadequate and unreasonable. Plaintiff's experts testified that in 1975 defendant should have been explicitly warning of the correlation between higher doses of estrogen and...