Odgers v. Ortho Pharmaceutical Corp.

• Citation: 609 F. Supp. 867
• Decision Date: 29 May 1985
• Docket Number: Civ. No. 78-70543.
• Parties: Susan ODGERS, Plaintiff, v. ORTHO PHARMACEUTICAL CORP., Defendant.
• Court: U.S. District Court — Western District of Michigan

609 F. Supp. 867

Susan ODGERS, Plaintiff, v. ORTHO PHARMACEUTICAL CORP., Defendant.

Civ. No. 78-70543.

United States District Court, E.D. Michigan, S.D.

May 29, 1985.

Harry Philo and Linda Miller Atkinson of Philo, Atkinson, Steinberg, White, Vigilotti & Keenan, Detroit, Mich., for plaintiff.

Wallson G. Knack and Paul T. Sorenson of Warner, Norcross & Judd, Grand Rapids, Mich., for defendant.

OPINION AND ORDER

COHN, District Judge.

I.

This is a products liability case. Plaintiff Susan Odgers (Odgers) alleges that her use of Ortho-Novum, an oral contraceptive manufactured by defendant Ortho Pharmaceutical Corp. (Ortho), caused a blood clot resulting in her partial paralysis. Odgers claims that Ortho's failure to adequately warn her directly and failure to adequately warn her physician, Dr. Joan Wake (Dr. Wake), of the possibility of blood clotting makes it liable to her for the damages she has suffered.

The case was initially tried in June 1980 on an instruction that Ortho owed Odgers a duty to directly warn her of the risks and potential side effects of Ortho-Novum. The jury found for Odgers.¹ Thereafter I granted Ortho a new trial on the grounds that my instruction was erroneous under Michigan law.²

On Odgers' motion, I subsequently certified the following question to the Michigan Supreme Court under Michigan General Court Rules of 1963, 797.2:

"Does the manufacturer of an oral contraceptive which is a prescription drug, in addition to its duty under the common law of Michigan to warn physicians of any risks inherent in the use of the oral contraceptive which it knows or should know to exist, Smith v. E.R. Squibb & Sons, 405 Mich. 79, 273 N.W.2d 476 (1979), have a duty under the common law of Michigan to provide adequate warnings directly to persons using the oral contraceptives where (1) relevant federal regulations require that the manufacturer provide adequate warnings directly to such persons on the label of the package and certain other warnings in a brochure made available to physicians for discretionary distribution to persons prescribed oral contraceptives and (2) issuance of the prescription is based on informed choice rather than solely physician decision?"

The Michigan Supreme Court, some 18 months after accepting the certified question for review, responded first, that there is no rule of law in Michigan that answers the question and second, declined to state a rule of law which would answer the question. A minority of three justices agreed with the majority of four justices that there was no rule of law on the question but dissented, taking the position that the question should be answered. The dissent then went on to impose a duty on the manufacturer of oral contraceptives to warn a user directly of known hazards associated with the use of the drug. See In re Certified Questions, 419 Mich. 686, 358 N.W.2d 873 (1984), reh'g denied, 421 Mich. 1202 (1985).

Now before me is Ortho's motion for summary judgment. Ortho urges that, in the absence of any Michigan rule of law on the question, I should adopt the rule that the manufacturer's duty to warn runs only to the prescribing physician, not to the patient. Ortho also argues that, should I find that Ortho's duty was only to warn Dr. Wake, there was no cause in fact between Ortho's alleged failure to warn and Odgers' injury in light of affidavits and deposition testimony by Dr. Wake to the effect that had she been warned of all of the risks involved in the use of Ortho-Novum, she would have prescribed it to Odgers regardless. For the reasons which follow I disagree with Ortho on the scope of its duty to warn.

II.

The failure of the Michigan Supreme Court to state a rule of law on the question of a manufacturer's duty to warn a user of oral contraceptives does not relieve me of my duty to answer the question. "A federal court cannot decline jurisdiction of a case simply because it is difficult to ascertain what the state courts thereafter may determine the state law to be." 19 Wright, Miller & Cooper, Federal Practice & Procedure, § 4507 at 99; Meredith v. City of Winter Haven, 320 U.S. 228, 234-35, 64 S.Ct. 7, 10-11, 88 L.Ed. 9 (1943). "In the absence of a state court ruling our duty is tolerably clear. It is to decide, not avoid, the question." Dailey v. Parker, 152 F.2d 174, 177 (7th Cir.1945). See also Ann Arbor Trust Co. v. North American Co. for Life and Health Insurance, 527 F.2d 526, 527 (6th Cir.1975), cert. denied, 452 U.S. 993, 96 S.Ct. 2206, 48 L.Ed.2d 818 (1976) (quoting Krakoff v. United States, 431 F.2d 847, 848 (6th Cir.1970)) ("In spite of the uncertainty of Michigan law on this subject, this is not an appropriate case for abstention by this court.... `Abstention is not ordinarily granted in cases involving only common law questions which a federal court, under its diversity jurisdiction, is bound to decide.'").

In deciding an unsettled issue, it is my obligation to make an educated guess as to what decision would be reached by the Michigan Supreme Court,³ "with respect to the policies involved in this litigation under the facts of the present case." Ann Arbor Trust Co. v. North American Co. for Life and Health Insurance, supra, at 527; Travelers Insurance Co. v. Young, 580 F.Supp. 421, 423 (E.D.Mich.1984); Dunbar v. United Insurance Company of America, 557 F.Supp. 228, 230 (E.D.Mich.1983). This entails consideration of analogous cases from this and other jurisdictions "scrutinized with an eye toward the broad policies that informed those adjudications, and to the doctrinal trends which they evince." McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 662 (3rd Cir.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980); Overstreet v. Norden Laboratories, Inc., 669 F.2d 1286, 1289-90 (6th Cir.1982); Korzetz v. Amsted Industries, Inc., 472 F.Supp. 136, 140 (E.D.Mich. 1979).⁴ I may also consider scholarly treatises, the restatements of the law, and pertinent law review articles. McKenna v. Ortho Pharmaceutical Corp., supra, at 662-63.⁵ In addition, "faced with an unprecedented question of state law, I may also be guided by the law which in my opinion provides the most just and reasoned analysis." Harrison v. McDonough Power Equipment, Inc., 381 F.Supp. 926, 930 (S.D.Fla.1974). While I must keep in mind that my function is to choose the rule that I believe the state's highest court, given "all that is known about its methods of reaching decisions," is likely to adopt sometime in the future, and not to choose the rule I would adopt were I free to decide for myself, at the same time diversity litigants should not be penalized for the choice of federal court by being deprived of the flexibility that a state court could reasonably be expected to show. Wright Miller & Cooper, supra, § 4507 at 103.⁶

III.

Unlike the usual case in which I must make an "Erie guess", Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), as to how the state's highest court would decide an issue, in In re Certified Questions the Michigan Supreme Court was squarely presented with the question to be decided. Besides holding that there was no rule of law on the subject in Michigan the majority also stated that:

"the allocation of the duty to warn patients is a public policy question involving the marketing system and economics of a major industry and the everyday practice of an essential profession. We believe that the Legislature is in a better position to allocate those duties."

In re Certified Questions, at 868-869. I conclude, however, that the Michigan Supreme Court's deference to the legislature is, in the area of tort duties, clearly excessive, and that portion of the majority opinion which indicates that this issue might best be left to the legislature may be discounted and is not an obstacle to my answering the question.

The development of tort law has been characterized by the establishment of broad governing principles providing justice in individual cases.⁷ Even the most radical changes in tort law have not generally been accomplished by legislative action. While it may be argued that far-reaching policy decisions should be implemented through legislation rather than judicial decision, "it may be questioned whether codification would improve on the flexibility and responsiveness of the common law." ABA Report, at 2-15.

"American courts have a great responsibility for participation in the creative adaptation of law to current needs. Though some types of reform are beyond the judicial function, primarily because of the distinctive investigatory facilities of legislatures and their distinctive role in relation to reforms of comprehensive character, it is never a satisfactory answer to an argument for judicial creativity that the need for change is one that could be accomplished by statute. Where a need for reform is clear but no reforming statute has been enacted, courts must choose among the unsatisfactory precedent and other rules open to judicial adoption, even though the range of choice may not be as wide as that open to a legislature.

Increasingly in recent decades, American courts have been discharging this responsibility. Some sense of this performance can be obtained from an examination of recent decisions overruling precedents.... In the area of tort law, precedents overruled in decisions of very recent vintage have included decisions concerned with immunities (governmental, charitable, and intrafamily), mental suffering, prenatal injury, consortium, methods of advocacy on issues of damages for pain and suffering, the measure of damages in death actions, the scope of liability of the several tortfeasors who contribute to an injury, liability for nonnegligent trespass, the nature of a railroad company's duty with respect to hazards at grade crossings, liability of an occupier of land to a fireman injured on the premises, privity, and extentions of strict liability. Not only is the nature of these

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