Oresman v. GD Searle & Co.

• Decision Date: 16 January 1975
• Docket Number: Civ. A. No. 4255.
• Citation: 388 F. Supp. 1175
• Court: U.S. District Court — District of Rhode Island
• Parties: Sandra ORESMAN and Richard Oresman, Plaintiffs, v. G. D. SEARLE & CO., Defendant.

388 F. Supp. 1175

Sandra ORESMAN and Richard Oresman, Plaintiffs, v. G. D. SEARLE & CO., Defendant.

Civ. A. No. 4255.

United States District Court, D. Rhode Island.

January 16, 1975.

COPYRIGHT MATERIAL OMITTED

Leonard Decof, Max Wistow, Tobin, Decof, LeRoy & Silverstein, Providence, R. I., for plaintiffs.

Thomas D. Gidley, Hinckley, Allen, Salisbury & Parsons, Providence, R. I., for defendant; William P. Richmond, Sidley & Austin, Chicago, Ill., of counsel.

OPINION

DAY, District Judge.

This is a civil action wherein the plaintiffs, citizens of Rhode Island, seek to recover damages allegedly sustained by them as a result of a severe stroke suffered by the plaintiff, Sandra Oresman, on February 25, 1968. Jurisdiction of this action is invoked under the provisions of 28 U.S.C. § 1332.

In their complaint the plaintiffs allege that the stroke suffered by said plaintiff, Sandra Oresman, resulted from her taking contraceptive pills manufactured by the defendant. In their amended complaint they allege the following grounds for the liability of the defendant to them for their claims asserted against it, viz:

Count I: breach of implied warranty that said pills were of merchantable quality for use as an oral contraceptive;

Count II: negligent manufacturing of said pills and negligent misrepresentation that the pills were safe to be taken;

Count III: negligence and res ipsa loquitur;

Count IV: strict liability in tort.

On January 6, 1971, this Court denied the defendant's motion for summary judgment in its favor as to Counts I, III and IV of said complaint, Oresman v. G. D. Searle & Co., 321 F.Supp. 449 (D.R. I.1971). Following the completion of prolonged discovery by the parties and hearings and decisions on further pretrial motions by the parties, the trial of this action before a jury began on February 5, 1974. On March 22, 1974, after thirty (30) days of trial, the jury returned verdicts in favor of the plaintiffs. Its verdict in favor of the plaintiff Sandra Oresman was in the sum of $500,000, and its verdict in favor of Richard Oresman, her former husband, was in the sum of $15,000.

On March 27, 1974, the Clerk of this Court entered judgments reflecting these verdicts with the addition of the sum of $168,000 as interest to the verdict in favor of said Sandra Oresman and the addition of the sum of $5,040 as interest to the verdict rendered in favor of said Richard Oresman.

This matter is now before me upon the motions of the defendant to:

(1) Strike said pre-judgment interest from the amounts of said judgments.

(2) For judgment in its favor notwithstanding said verdicts.

(3) For a new trial, or

(4) In the alternative, to grant it a remittitur.

MOTION TO STRIKE PRE-JUDGMENT INTEREST

As hereinbefore recited, said judgments entered by the Clerk of this Court included interest on the amounts of the verdicts rendered by the jury on March 22, 1974. The computation of said interest was based upon a rate of eight per cent (8%) per annum from January 9, 1970, the date of the filing of the plaintiffs' complaint until March 22, 1974, the date of the rendition of said verdicts, a period of four (4) years and seventy-two (72) days.

In its motion to strike said interest from said judgments, the defendant contends that the inclusion of pre-judgment interest in said judgments violates the provisions of 28 U.S.C. § 1961 and the Constitution of the United States.

28 U.S.C. § 1961 deals only with post judgment interest. It has no reference to pre-judgment interest. Although the defendant concedes that the Rhode Island statute, General Laws, R. I. Sec. 9-21-10, provides for the award of pre-judgment interest, it contends that said statute has no application to the federal courts. In my opinion this contention is clearly without merit. It is well settled that in diversity cases, such as this, federal courts follow state law on the question of pre-judgment interest.

In Massachusetts Benefit Association v. Miles, 137 U.S. 689, 11 S.Ct. 234, 34 L.Ed. 834 (1891) the Supreme Court in construing the provisions R.S. § 966, now found in 28 U.S.C. § 1961, said 137 U.S. at page 691, 11 S.Ct. at page 235:

"... Section 966, while providing only for interest upon judgments, does not exclude the idea of the power in the several states to allow interest upon verdicts, and, where such allowance is expressly made by a state statute, we consider it a right given to a successful plaintiff, of which he ought not to be deprived by a removal of his case to the federal court. The courts of the state and the federal courts sitting within the state should be in harmony upon this point."

In its opinion the Supreme Court was careful to point out that this rule is applicable only to cases where the jurisdiction of the Federal court is based upon diversity of citizenship and the existence of a controversy in the requisite amount. Jurisdiction of this action is based upon diversity of citizenship of the parties and the existence of a controversy in excess of $10,000. 28 U.S.C. § 1332.

In Moore-McCormack Lines, Inc. v. Amirault, 202 F.2d 893 (1 Cir. 1953), the Court of Appeals held 202 F.2d at page 895:

"... But 28 U.S.C. § 1961 has no bearing on the problem whether pre-judgment interest is allowable as an item of damages on a particular claim, to be included in the total amount of the money judgment. As to that we must seek elsewhere for the applicable rule of law."

Similarly, in the case of Sylvania Electric Products, Inc. v. Barker, 228 F. 2d 842 (1 Cir. 1955) the Court of Appeals held 228 F.2d at page 851:

"On principle, interest on a verdict from the date of the writ is an item of substantive damages awarded "in order that the plaintiff may be more fully and justly compensated for the wrong complained of.' Moore-McCormack Lines, Inc., v. Amirault, 1 Cir., 1953, 202 F.2d 893, 895. And Massachusetts accepts this general principle, for in D'Amico v. Cariglia, 1953, 330 Mass. 246, 112 N.E.2d 807, the Supreme Judicial Court of Massachusetts in discussing the statute now under consideration and its predecessor said that `Under both statutes interest was to be included as an item of damages.' Under Massachusetts conflicts rules, therefore, it follows that the plaintiff's right to interest on the verdict in the personal injury case figured from the date of the writ must be determined by the law of Nebraska.

We are not referred to any Nebraska authority supporting the plaintiff's position. In this situation the Nebraska rule is presumed to be the general common-law rule as it prevailed in Massachusetts prior to the statutory changes, see John B. Fray Co. v. S. Silk, Inc., 1923, 245 Mass. 534, 140 N. E. 259, and the Massachusetts rule prior to the statutory changes was that interest is not an element of the damages recoverable in actions of tort for personal injuries...."

Since the plaintiffs are citizens of Rhode Island and the alleged tort of the defendant was committed in Rhode Island, the right of the plaintiffs to interest on the verdicts in their favor must be determined by the law of Rhode Island.

At the time of the rendition of the verdicts in this action, Section 9-21-10 of the General Laws of Rhode Island provided as follows:

"In causes of action and actions for damages to the person or to real and personal estate in which a verdict is rendered or a decision made for pecuniary damages, there shall be added by the clerk of the court to the amount of damages, interest at the rate of eight per cent (8%) per annum thereon from the date of commencement of the action which shall be included in the judgment entered therein."

Said provision was enacted by Public Law 1970, Chapter 184, Sec. 1. Said Public Law provided that it would become effective as of September 1, 1970. The instant action was commenced in January, 1970. At that time said Section 9-21-10 provided interest at the rate of six per cent (6%) per annum. The defendant also contends that said rate of six per cent (6%) should have been applied by the Clerk in determining the amount of said interest to be added to said verdicts. In my opinion this contention is without merit. Foster v. Quigley, 94 R.I. 217, 179 A.2d 494 (1962).

In Foster v. Quigley, supra, the plaintiff had commenced his action in May, 1951. A verdict was not entered in his favor until October, 1961. When said action was commenced, there was no statute in Rhode Island providing for the addition of prejudgment interest on verdicts. While said action was pending trial, the legislature enacted the predecessor of the present section 9-21-10 of the General Laws which provided for pre-judgment interest at the rate of six per cent (6%) per annum. By its terms said statute was to be effective on September 1, 1958, more than seven (7) years after the plaintiff commenced his action.

In holding that the plaintiff was entitled to pre-judgment interest on said verdict from the date of the commencement of his action the Supreme Court of Rhode Island held in its opinion, 94 R.I. at pages 218-219, 179 A.2d at pages 495-496 as follows:

"Interest on a judgment in an action of trespass or trespass on the case for damages to person or property is not of the substance of the right of action but exclusively an incident attached thereto by legislative fiat after such right has been adjudicated. The period for computation of such interest is in the same category. It is in essence analogous to costs concerning which it is said that `a statute establishing costs and fixing court fees applies to pending cases equally with those arising after its enactment, unless a contrary purpose is expressed or fairly inferable from the words used.' 20 C.J.S. Costs § 3 p. 264 ...

Here of course it is not a question of whether the legislature could make the provision for interest computable from the date of a writ commencing an action before the enactment of the statute but whether it intended to have its fiat thus applied. Its language readily responds to

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