Muilenberg v. The Upjohn Co.

• Decision Date: 11 August 1988
• Docket Number: Docket No. 93331
• Citation: 169 Mich.App. 636,426 N.W.2d 767
• Parties: Terry MUILENBERG, Plaintiff-Appellant, v. THE UPJOHN COMPANY, a Delaware corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 767

426 N.W.2d 767

169 Mich.App. 636

Terry MUILENBERG, Plaintiff-Appellant, v. THE UPJOHN COMPANY, a Delaware corporation, Defendant-Appellee.

Docket No. 93331.

Court of Appeals of Michigan.

Submitted Oct. 7, 1987.

Decided July 5, 1988.

Released for Publication Aug. 11, 1988.

Bleakley & McKeen, P.C. by Thomas H. Bleakley and MacArthur, Cheatham, Acker & Smith, P.C. by Dwight R. Robinson, Detroit, for plaintiff-appellant.

Gruel, Mills, Nims & Pylman by Grant J. Gruel, Grand Rapids, for defendant-appellee.

Before DANHOF, C.J., and CYNAR and MIES, ^* JJ.

MIES, Circuit Judge.

Plaintiff appeals as of right from a January 27, 1986, jury verdict of no cause of action on his products liability claim arising from injuries allegedly suffered due to ingestion of a drug (Cleocin) produced and distributed by defendant. Plaintiff was diagnosed as having colitis in 1971 after taking Cleocin for treatment of severe acne. His condition eventually necessitated surgical removal of his large bowel in 1973. Plaintiff claimed that defendant failed to warn of the drug's adverse side effects and was negligent in testing the drug.

This appeal is taken from the verdict in a second trial on plaintiff's claim after remand from this Court to Kent Circuit Court. The first trial resulted in a $750,000 jury verdict in plaintiff's favor, which this Court reversed due to errors in the proceedings. Muilenberg v. The Upjohn Co., 115 Mich.App. 316, 320 N.W.2d 358 (1982). This Court denied a rehearing requested subsequent to its 1982 decision, and the Supreme Court denied plaintiff leave to appeal, 418 Mich. 946 (1984). On this appeal, plaintiff argues as follows:

1. This Court should reverse its 1982 decision.

2. The circuit court erroneously excluded the former trial testimony of one of plaintiff's expert witnesses.

3. The circuit court erroneously limited plaintiff's theory of liability to the claim that his ingestion of Cleocin caused his injury.

4. The circuit court should have permitted plaintiff to introduce into evidence a stronger warning for Cleocin ordered by a Food and Drug Administration directive of March, 1975.

5. The circuit court should have instructed the jury that defendant was on constructive notice of medical and scientific literature concerning Cleocin.

6. The circuit court should have granted a mistrial when the wife of defendant's attorney demonstrated personal familiarity with a juror.

We find the foregoing arguments without merit, and affirm the verdict.

1. The law of the case doctrine precludes this Court from reversing its 1982 decision.

Plaintiff requests this Court to review its prior decision on the two issues which required reversal on the first appeal. Plaintiff argues that this Court incorrectly found error requiring reversal in his counsel's reference in closing argument to the denial of defendant's motion for a directed verdict. Moreover, plaintiff asserts that this Court erred in finding certain documents prepared by defendant to be inadmissible hearsay and irrelevant.

A question of law decided by an appellate court will not be decided differently on a subsequent appeal in the same case where the facts remain materially the same. The reason for the rule is the need for finality of judgment and the want of jurisdiction in an appellate court to modify its own judgments except on rehearing. Johnson v. White, 430 Mich. 47, 420 N.W.2d 87 (1988). Our Supreme Court has also held that this rule applies without regard to the correctness of the prior determination. Gourlay v. Ins. Co. of North America, 189 Mich. 384, 386, 155 N.W. 483 (1915); Damon v. DeBar, 94 Mich. 594, 54 N.W. 300 (1893). ¹ A party seeking relief from an incorrect appellate decision may either request a rehearing or appeal to the Supreme Court. Damon, supra.

There has been no material change in the facts since the first appeal in this case. Moreover, plaintiff has already sought relief from this Court's 1982 decision by way of a request for rehearing to this Court and an application for leave to appeal to the Supreme Court. Accordingly, we hold that the law of the case doctrine prevents us from reviewing our prior decision in this case.

Plaintiff is incorrect in his reliance on Burk v. Warren (After Remand), 137 Mich.App. 715, 359 N.W.2d 541 (1984), aff'd. 427 Mich. 32, 398 N.W.2d 896 (1986), reh. den. 428 Mich. 1206 (1987), for the proposition that this Court may review its prior ruling in his case. This Court reversed its prior determination in Burk because our Supreme Court significantly altered the controlling law subsequent to the first appeal, and instructed the trial court on remand to proceed in light of the change. Here, where the Supreme Court denied plaintiff leave to appeal this Court's 1982 decision, there has been no significant change in the law which warrants review of our previous decision.

2. Prior trial testimony of plaintiff's expert witness was not admissible due to plaintiff's failure to show the witness' unavailability pursuant to MRE 804.

Subsequent to his testimony at the first trial in this case, one of plaintiff's expert witnesses moved to Israel. Plaintiff's counsel indicated at trial that the witness had stopped returning his telephone calls in 1980. Plaintiff sought before and during trial to introduce the witness' former testimony pursuant to MRE 804(b)(1), which provides that prior testimony is not excluded by the hearsay rule if the declarant is unavailable as a witness, and the opposing party had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. The circuit court refused to admit the former testimony, holding that plaintiff had neither shown the witness' unavailability nor plaintiff's own attempts to procure the witness' presence at the second trial.

MRE 804(a)(5) provides the relevant definition for "unavailable" in this case:

"(a) Definition of unavailability. 'Unavailability as a witness' includes situations in which the declarant--

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"(5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance ... by process or other reasonable means, and in a criminal case, due diligence is shown."

Since the witness was without the range of court process in this case, we must determine whether plaintiff was unable to obtain his attendance by "other reasonable means."

Decisions of our Supreme Court rendered prior to the adoption of MRE 804 reached inconsistent conclusions as to whether a witness' mere presence outside the court's jurisdiction constituted unavailability in the absence of a showing of reasons why the witness could not be produced at trial. In Hudson v. Roos, 76 Mich. 173, 42 N.W. 1099 (1889), a witness was found unavailable and her former testimony read into evidence on the basis of her residence in another state, despite the fact that no effort was made to obtain her presence at trial. In Pontiac School Dist v. Sachse, 274 Mich. 345, 350, 264 N.W. 396 (1936), a showing of sufficient reason for the witness' absence was a prerequisite to introduction of prior testimony. We are aware of no more recent cases in which this issue was addressed in light of MRE 804. We note, however, this Court's decision in Sakas v. Savoie, 53 Mich.App. 158, 218 N.W.2d 853 (1974), that the proponent of a subpoenaed witness and the court must take reasonable steps to enforce the subpoena as a prerequisite to admission of prior testimony. See also Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972), in which a witness was deemed unavailable after attempts to serve a subpoena proved futile and his son testified at trial that he resided abroad.

We hold that a witness located outside the court's jurisdiction is unavailable under MRE 804(b)(1) only after the proponent of his or her testimony has employed "reasonable means" to obtain the witness' presence at trial. To hold otherwise would render the express language of MRE 804(a)(5) mere surplusage. Where, as here, a witness' location is known, we will not find unavailability absent a showing that the proponent of the testimony attempted in good faith to obtain the witness' attendance at trial. As plaintiff in the instant case made no effort to obtain the witness' presence at the second trial, we find no unavailability for purposes of MRE 804(b)(1). The circuit court committed no error in refusing to admit the prior testimony.

Plaintiff raises for the first time on appeal an alternative argument that the former testimony should have been admitted under MCR 2.308(A)(1)(c). This question is not properly preserved for appeal since plaintiff did not raise it in the court below. Marietta v. Cliffs Ridge, Inc., 385 Mich. 364, 374, 189 N.W.2d 208 (1971). In any case, MCR 2.308 concerns use of depositions at trial, not former trial testimony, and is a rule distinct from MRE 804. See Beachum v. Bay Valley Associates, 120 Mich.App. 412, 419, 328 N.W.2d 54 (1982), lv. den. 418 Mich. 853 (1983).

3. The circuit court properly limited plaintiff's theory of liability to the claim that his ingestion of Cleocin caused his injury.

Although plaintiff's complaint alleged that his consumption of Cleocin "was the direct and proximate cause of various ill effects, including ulcerative colitis," his counsel's opening statement and the evidence offered in support of his case presented the theory that the drug may have aggravated a preexisting condition. When defendant objected to such theory, plaintiff moved on the third day of trial for leave to amend his complaint. The circuit court denied plaintiff's motion because it was made too late. Plaintiff challenges the denial of his motion, and the court's refusal to allow him to present proof that the drug aggravated a preexisting condition.

Leave to amend a complaint "shall be freely given when justice so requires." MCR 2.118(A)(2). A motion to amend a complaint should be denied only for such...