Moore v. Lederle Laboratories

• Decision Date: 02 August 1974
• Docket Number: No. 9,9
• Citation: 392 Mich. 289,220 N.W.2d 400
• Parties: Daniel MOORE, by his next friend, Thomas Moore, and Thomas Moore, in his own right, Plaintiffs-Appellants, v. LEDERLE LABORATORIES, a division of American Cyanamid Company, a foreign corporation, registered to do business in Michigan, Defendant-Appellee. 392 Mich. 289, 220 N.W.2d 400
• Court: Michigan Supreme Court

Page 400

220 N.W.2d 400

392 Mich. 289 Daniel MOORE, by his next friend, Thomas Moore, and Thomas Moore, in his own right Plaintiffs-Appellants, v. LEDERLE LABORATORIES, a division of American Cyanamid Company, a foreign corporation, registered to do business in Michigan Defendant-Appellee.

No. 9.

392 Mich. 289, 220 N.W.2d 400

Supreme Court of Michigan.

Aug. 2, 1974.

Collins & McCormick by Michael McCormick, Ypsilanti, for plaintiffs-appellants.

DeVine & DeVine by Edmond F. DeVine, Ann Arbor, for defendant-appellee.

Before the Entire Bench.

T. G. KAVANAGH, Justice.

Plaintiff, Daniel Moore, was born on October 1, 1959, with cystic fibrosis.

From shortly after birth until late 1964 he was treated with tetracycline manufactured by the defendant, Lederle Laboratories. The drug was administered in order to help prevent infections especially those associated with respiratory illnesses.

Due to a side effect of the drug, Daniel Moore's teeth became permanently stained blue-black. Plaintiffs filed suit against defendant on July 7, 1967 alleging that its product damaged Daniel's teeth and that defendant failed to discover the negative side effects and warn the medical profession.

Defendant's theory was that it was not liable for failure to warn of the drug's side effects, because with full knowledge of its side effects on the part of all concerned the drug was administered to save Daniel's life.

The trial was conducted in July, 1970. From a verdict of no cause for action, plaintiffs appealed to the Court of Appeals which affirmed.

The single issue raised by plaintiffs on appeal to this Court is whether certain testimony elicited on cross-examination from one of their expert witnesses was properly admitted.

Dr. Mehaffey, a dentist with a master's degree in public health, testified by way of deposition taken on July 8, 1970. He testified for plaintiffs as an expert on the tooth staining effects of tetracycline. Dr. Mehaffey agreed with defense counsel that he was not an expert on drugs.

'Q. Doctor Mahaffey, I assume you are not an expert in drugs, is that correct?

A. That is right.'

On direct examination Mehaffey testified that from his own experience tetracycline did not change the color of his teeth.

On cross-examination Mehaffey testified to the use of tetracycline by his own children and its causing a low degree of staining.

'Q. Have you yourself, as a family man, have you used the tetracycline drugs or administered them to your children?

A. Well, my children have been prescribed tetracycline drugs. My son, who has otitis media, or did have otitis media, which is a mild ear infection, quite frequently as an infant was given tetracycline drugs. Penicillin did not seem to touch this infection.

My daughter who had bronchial pneumonia while in Japan, was given large doses for a considerable period of time of this drug. My children in their primary teeth did exhibit some of the staining. Fortunately, it was of a very low degree, not an objectionable level. And their permanent teeth now are in the area of non-objectionable level.'

He then agreed with defense counsel that it was worth the tooth staining to save his child's life. It is the admission of this testimony that is in dispute:

'Q. So far as your daughter was concerned, you say the disease for which she was given a tetracycline drug was what?

A. Bronchial pneumonia.

Q. How sick was she with that?

A. She could have died within 24 hours had she not been placed on it immediately.

Q. Therefore, you realized--

A. I realized--

Q. --the tetracycling drug in that situation saved her life?

A. Right.

Q. And I am sure you have to hesitation in saying that it was worth the tooth staining to save her life, is that right?

A. Yes, I would say so.

Q. That would be consistent with your opinion in regard to these other cases which you studied if there were a life saving situation, isn't that true?

A. Many of the cases that I have observed are cases where it was a life saving situation, particularly in children who had congenital heart defects in which they were placed on this to reduce their potential for blood infection, which might cause their life to be lost.

MR. DEVINE: I don't think I have anything else.'

Prior to the taking of Mehaffey's deposition it was stipulated by the attorneys for both parties that any objections would be resolved by the trial court at the time the deposition was filed.

At the trial court's hearing on objections relevant to Mehaffey's testimony, some testimony although not that which is in dispute was struck as being incompetent and hearsay because Mehaffey was not a medical doctor.

Plaintiffs also objected to the disputed testimony quoted aboe on the grounds that it was hearsay and incompetent because Mehaffey was not a medical doctor and not a qualified medical expert who could give an opinion on what would have happened to his daughter if she had not received tetracycline.

The trial court overruled plaintiffs' objection on the grounds that: a) the testimony was relevant to Mehaffey's testimony on direct as to his own personal experience with tetracycline; b) plaintiffs' counsel failed to object when the deposition was being taken; and; c) Mehaffey was competent to testify as to his daughter's condition because he was her father.

The Court of Appeals correctly held that the trial court erred in ruling that plaintiffs' objection was not timely made. GCR 1963, 308.3(1). The defendant does not appeal from that holding.

The Court of Appeals further held that because of his medical training and background Mehaffey was competent to offer a general conclusion as to the seriousness of his daughter's illness. Moore v. Lederle Laboratories, 42 Mich.App. 689, 696, 202 N.W.2d 481, 485 (1972).

The Court of Appeals held that the admission of disputed testimony was error nevertheless because it was irrelevant to plaintiffs' theory of the case. Because the parties do not contest that holding we shall not speak to it, except to say that it could be argued that Michigan now follows the traditional rule on the scope of cross-examination which permits a party to cross-examine a witness on any matter so long as it is material and relevant to any issue in the case including the theory of the defense. Comments, Cross-examination: Permissible Scope in Michigan, 36 U.Det.L.J. 162 (1958).

The Court of Appeals went on to hold that the error in admitting the disputed testimony was harmless because the effect of that testimony was dispelled by plaintiffs' testimony and scientific evidence.

The plaintiffs argue that the trial court and the Court of Appeals erred in holding that Mehaffey's testimony was competent. We agree.

If a witness is to give an opinion an untrained layman could not, the witness must first qualify himself. People v. Loomis, 106 Mich. 250, 64 N.W. 18 (1895); Dunwoody v. Royal...