Muilenberg v. Upjohn Co.

• Decision Date: 11 June 1982
• Docket Number: Docket No. 50216
• Citation: 320 N.W.2d 358,115 Mich.App. 316
• Parties: Terry MUILENBERG and Marvin Muilenberg, Plaintiffs-Appellees, v. The UPJOHN COMPANY, a Delaware corporation, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 358

320 N.W.2d 358

115 Mich.App. 316

Terry MUILENBERG and Marvin Muilenberg, Plaintiffs-Appellees, v. The UPJOHN COMPANY, a Delaware corporation, Defendant-Appellant.

Docket No. 50216.

Court of Appeals of Michigan.

Submitted Feb. 3, 1982.

Decided April 21, 1982.

Rehearing Denied June 3, 1982.

Released for Publication June 11, 1982.

Macarthur & Cheatham, P. C., Thomas H. Bleakley, P. C., and Gromek, Bendure & Thomas by James G. Gross, Detroit, for plaintiffs-appellees.

Cholette, Perkins & Buchanan by Grant J. Gruel, Grand Rapids, for defendant-appellant.

Before ALLEN, P. J., and R. B. BURNS and J. H. GILLIS, JJ.

R. B. BURNS, Judge.

A jury verdict of $750,000 was rendered in favor of plaintiff Terry Muilenberg ¹ in this products liability action. The action stemmed from plaintiff's ingestion of a drug, Cleocin, produced and distributed by defendant Upjohn Company. The theories of the case were failure to warn of the drug's side effects and negligence by Upjohn in the pretesting of the drug.

On July 22, 1971, plaintiff went to Dr. Harrell, a dermatologist at the University of Michigan Medical Center, for treatment of acne. The drug Cleocin was prescribed for treatment. The label on the drug, at that time, did not indicate that colitis possibly was a side effect of the medication.

Plaintiff was instructed by Dr. Harrell to take the medication two times a day. Approximately three days after plaintiff started taking the drug he experienced bleeding and diarrhea. Prior to ingestion of the drug, plaintiff had complained of rectal bleeding. He consulted a doctor, who diagnosed the problem as hemorrhoids. At that point plaintiff had not experienced the extreme stomach cramping and diarrhea which occurred while he took Cleocin.

Plaintiff was sickly, weakened from the diarrhea. Finally, on August 1, 1971, his family contacted their physician, Dr. Howie who instructed plaintiff to discontinue using Cleocin. Later that same day plaintiff went to the emergency room of Blodgett Hospital. On August 9, 1971, he consulted Dr. Benjamin, who instructed plaintiff to check into the hospital. He remained in the hospital four weeks. When the colitis condition subsided, he was released from the hospital and recuperated at home an additional two weeks. He returned to the hospital in September, 1971, and in April, 1972, for blood transfusions, required because of the bloody diarrhea. After constant medical attention, in January, 1973, plaintiff underwent a colectomy and ileostomy to alleviate his condition of severe chronic ulcerative colitis.

Several issues are raised on appeal in this complex products liability case. First, the defendant claims prejudicial error occurred when plaintiff's counsel, before the jury, during the rebuttal argument, referred to the trial court's denial of defendant's motion for a directed verdict. Plaintiff's counsel's argument, defendant proposed, insinuated that the denial of the motion for a directed verdict was proof of defendant's negligence.

During rebuttal argument plaintiff's counsel addressed the jury as follows:

"That's not the only issue, of course, of the lawsuit, but it is one of the issues, and you must keep it in mind in making your determination.

"As a matter of fact, I suggest that you satisfy yourself on that issue before you move on to the other issues of the lawsuit, because without negligence, I wouldn't be in court, Terry Muilenberg wouldn't be in court. That is a prerequisite to allow me to even argue before you now. If I had not proved at least for jury determination that the Upjohn Company was negligent, Mr. Knack would have been entitled to a directed verdict at the close of my proofs. He moved for it, and it was denied."

Plaintiff concedes that the argument was improper, but argues no reversible error occurred, especially where the court gave a cautionary instruction on the reference to the directed verdict motion. Further, plaintiff argues that the remark, if prejudicial, is not per se cause for reversal unless deliberately and continuously made.

The trial court instructed the jury:

"During the rebuttal argument of the plaintiff's counsel, Mr. Bleakley, he stated that unless they had shown that the defendant was negligent, he couldn't have argued that issue to the jury because there would have been a directed verdict, and he proceeded to say that Mr. Knack moved for a directed verdict and it was denied.

"As I indicated to you at the beginning of the trial and before that, there would be times when certain matters would be brought up regarding the law and that you would not be privy to that. In other words, you would be excused while we argued that, a particular motion, and that has occurred throughout all trials that have ever been held where the law is being argued. And in this instance, certainly there are motions made and the fact that they're granted or denied is of no import to you. It's--it's something that has to be determined, and it doesn't necessarily mean that the Judge is right in whatever he does. It may be a motion on some facts.

"Now, you are the triers of the facts, and when the Judge has a jury, he concerns himself with the law and not with the facts, only insofar as it's necessary to review those facts during the course of his instructions to you after argument.

"So, you shouldn't concern yourself with whatever decision the Judge has made when you were not present, because it--it may--if you do, then it would certainly prejudice your--your remarks, so I would ask you to forget, if you possibly can, or disregard this statement made by Mr. Bleakley as to what occurred out of your presence, and--because such a statement is--is not for your deliberation. It's something that I had to make a--have to make a decision on, and I some--as I've indicated, sometimes the Judge is overruled in his decision in the higher court, and sometimes he's sustained. So, for that reason, I would ask you to disregard the reference to a directed verdict.

"I hope that you'll take that. I know of no other way to put it to you than just that."

Generally, it is improper for counsel to highlight to the jury that the opposing party's motion for a directed verdict was denied. See Robelen Piano Co. v. DiFonzo, 53 Del. 346, 169 A.2d 240 (1961); Sanchez v. Stremel, 95 Ariz. 392, 391 P.2d 557 (1964); Daly v. Pere Marquette R. Co., 197 Mich. 340, 163 N.W. 883 (1917). In order to determine the prejudicial impact of the statement the substance of the curative instruction, where the trial court gave one, must be analyzed. In 10 ALR3d 1330, 1332, it is stated:

"Thus, under ordinary circumstances, and in the absence of corrective action by the trial judge sufficient to obviate the effects of such an argument, it is generally held that resort to such tactics by counsel prejudices the rights of the opposing party, necessitating reversal or a new trial." (Emphasis added.)

Upon close scrutiny of the instruction, we find it did not obviate the prejudicial impact of the plaintiff's counsel's statement. In Willett v. Ford Motor Co., 400 Mich. 65, 253 N.W.2d 111 (1977), where the trial judge granted a new trial even though he previously had given a cautionary instruction to the jury in reference to the argument of plaintiff's counsel, the Supreme Court made it clear that just any curative instruction would not be sufficient to eradicate improper arguments. The Court stated:

"The giving of a cautionary instruction does not preclude further relief from an unjust verdict if the trial judge, or reviewing court on appeal, finds that under all the circumstances the instruction may not have prevented the feared prejudicial impact. In granting a new trial for the plaintiff in Lapasinskas v Quick, 17 Mich App 733, 739, 170 NW2d 318 (1969), then-Judge Levin stated:

" 'We have no way of knowing whether the defendants' injection of this issue influenced the jury or whether the trial judge's cautionary instruction in fact removed any effect adverse to plaintiff's action. See Clark v Grand Trunk W R Co, 367 Mich 396, 402 (1962); cf. Felice v Weinman, supra [372 Mich 278, 126 NW2d 107 (1964)].' " Willett, supra, 72, 253 N.W.2d 111.

Here, the Court, rather than negate the reference to the directed verdict, added credence to the insinuation that the judge believed there was evidence to support plaintiff's case. The instruction failed to advise the jury that the motion for a directed verdict had no bearing on the issue of defendant's negligence. Instead, the curative instruction focused on the fact that the judge had ruled on the law, and that was his province, not to be of concern to the jury since if his decision was erroneous the higher court would reverse it. This curative instruction did not discount the impact of the plaintiff's statement but to the contrary may have endorsed the plaintiff's argument in the juror's minds. As stated in Robelen Piano Co. v. DiFonzo, supra, 361, 169 A.2d at 248, where plaintiff's counsel argued that if there was not a case they wouldn't be before the jury, we think the Court should have been more positive in its instructions to the jury and should have admonished counsel as to the impropriety of the argument.

Since a general verdict was returned we have no way of knowing if the impact of the prejudicial remark was erased. See Willett, supra. On the face of the instruction, we cannot conclude that the potential prejudice to defendant's case from the comment was cured.

Next, defendant contests the admission of several exhibits into evidence. Defendant argues that letters transmitted between Upjohn and a doctor who conducted a study of the side effects of Cleocin for Upjohn should have been excluded pursuant to MRE 407, which guards against the admission into evidence of subsequent remedial measures.

During 1973-1974, more than two years after plaintiff's illness, Dr. Tedesco, Chief of Gastroenterology at the Medical College of Georgia, conducted a...