Pearson v. Franklin Laboratories, Inc., s. 11552-11559

• Decision Date: 06 January 1977
• Docket Number: Nos. 11552-11559,s. 11552-11559
• Parties: 22 UCC Rep.Serv. 351 Donald PEARSON, Bert Fried, Don Van Slooten and Ervin Schuh, Plaintiffs, Respondents, and Cross Appellants, v. FRANKLIN LABORATORIES, INC., and American Home Products Corp., a corporation, Defendants, Appellants, and Cross Respondents. . Reassigned
• Court: South Dakota Supreme Court

Page 133

254 N.W.2d 133

22 UCC Rep.Serv. 351

Donald PEARSON, Bert Fried, Don Van Slooten and Ervin Schuh Plaintiffs, Respondents, and Cross Appellants, v. FRANKLIN LABORATORIES, INC., and American Home Products Corp., a corporation, Defendants, Appellants, and Cross Respondents.

Nos. 11552-11559.

Supreme Court of South Dakota.

Reassigned Jan. 6, 1977.

Decided May 26, 1977.

Newell E. Krause of Lakeman & Krause, Mobridge, for plaintiffs, respondents, and cross appellants.

Donald R. Shultz of Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, for defendants, appellants, and cross respondents.

WOLLMAN, Justice (on second reassignment).

Defendants appeal from judgments entered in favor of plaintiffs following a consolidated trial to the court of four separate actions for damages resulting from the use of defendants' cattle vaccine. Plaintiffs have cross appealed on the question of damages. We affirm.

Plaintiffs operate ranches in Perkins and Corson Counties, South Dakota. In the spring of 1971, each bought a supply of a combination infectious bovine rhinotracheitis vaccine and leptospira pomona bacterin (hereinafter IBR-Lepto) manufactured by Franklin Laboratories, Inc., (Franklin), a subsidiary of defendant American Home Products Corporation. Infectious bovine rhinotracheitis is an acute, contagious viral infection of cattle characterized by inflammation of the upper respiratory tract. It is also known as "Red Nose" because a common symptom is a crusted nose. The disease was first identified in Colorado in the early 1950's. A Dr. McKercer of the University of California succeeded in attenuating a live IBR virus. Based upon his technique, Cutter Laboratories began manufacturing a vaccine. Franklin, in turn, entered into a licensing agreement with Cutter laboratories and started manufacturing an IBR vaccine and lepto pomona bacterin in a combination product in 1965. Franklin produces approximately two million doses a year of the IBR vaccine. The vaccine purchased by plaintiffs and that used by the other farmers and ranchers whose herds suffered post vaccinal reactions came from a unit of production denominated Serial 651. From this unit of production 47,050 doses of Serial 651-A and 26,450 doses of Serial 651-B were produced and distributed throughout the United States. The only difference between the two subserial numbers was the fact that the subserial A was bottled in 50-dose vials and the subserial B in 25-dose vials. Three thousand eight hundred seventy-five doses of Serial 651-B IBR-Lepto were distributed by retail stores in Bison, Lemmon and McLaughlin, South Dakota, in April and May of 1971.

Plaintiff Fried lives some nine miles northeast of Bison, South Dakota. On May 27 and May 28, 1971, he purchased 80 doses of the IBR-Lepto vaccine from Bison Grain Company. On May 29, 1971, he vaccinated his cows with the vaccine. Prior to being vaccinated the cattle were apparently healthy and in good condition. After being vaccinated the cattle were divided into two herds and placed in separate pastures. Approximately two weeks later plaintiff Fried observed that some cattle in both herds were sick. The sick animals were gaunt, had a yellowish discharge from their eyes, were off feed, dehydrated and lethargic, had a discharge from the nose and suffered from black diarrhea. The sick animals appeared to be running a high temperature, as was evidenced by their peeling noses. Plaintiff Fried notified Bison Grain Company of the sick animals and then called his veterinarian. In all, six yearling heifers, fourteen cows and one calf became ill. One yearling heifer and one calf died. The other nineteen head eventually recovered.

Plaintiff Pearson lives 17 miles southeast of Lemmon, South Dakota. On June 2, 1971, he bought approximately 120 doses of the IBR-Lepto vaccine from Smith's Drug in Lemmon, South Dakota. On June 3, 1971, he vaccinated 118 cows with the vaccine. Prior to being vaccinated the cows had been grazing in two separate pastures approximately five miles apart and appeared to be in good condition. After being vaccinated the cows were returned to their separate pastures. Approximately two weeks later plaintiff Pearson observed that some of the cows in the home pasture were sick. He went immediately to the other pasture and observed the same problem in that herd. The sick cattle were suffering from a high fever, had red, dry, cracked noses, had yellowish sunken eyes, and were suffering badly from diarrhea. All 118 cows became ill. Thirty-five of them became much sicker than the rest, and of these three died.

Plaintiff Van Slooten lives 27 miles south of Keldron, South Dakota. On May 24, 1971, he bought 110 doses of the IBR-Lepto vaccine from Smith's Drug in Lemmon. On May 29, 1971, he vaccinated 105 cows. Prior to being vaccinated, the cows were in good condition and appeared to be free from disease. After being vaccinated the cattle were divided into two herds and placed in pastures a mile and a quarter apart. On June 12, 1971, plaintiff Van Slooten discovered a dead cow near his stock dam and observed that a number of cows were suffering from black diarrhea and had red, dry, cracked noses and yellow eyes. Most of the cattle were sick; forty-six head were sicker than the rest. Two cows and two yearling heifers died. Nearly all of the calves were sick and 22 calves died.

Plaintiff Schuh lives 20 miles south of McIntosh, South Dakota. On May 24, 1971, he purchased 120 doses of the IBR-Lepto vaccine from Mattern's Store in McIntosh, South Dakota. On May 25, 1971, he vaccinated 112 cows with the vaccine. Prior to being vaccinated, the cattle were in good condition and apparently healthy. On June 16, 1971, plaintiff Schuh observed that some of the cows appeared to be sick. They were gaunt, suffering from diarrhea and had dry, scabby, runny noses and sunken yellowish eyes. In all, fifty-seven cows became ill. Of these, ten cows died, along with three calves.

In addition to the post-vaccinal sicknesses in the herds owned by the four plaintiffs, it was developed at trial that similar symptoms were observed in a herd near Prairie City, South Dakota, a herd near Meadow, South Dakota, a herd near White River, South Dakota, a herd near Bison, South Dakota, a herd near Isabel, South Dakota, and in five herds in the Esmond, North Dakota, area. All of these herds had been vaccinated with Franklin's IBR-Lepto 651-B vaccine.

According to defendants' evidence, Franklin received complaints of sick animals following vaccination with Serial 651-B from the northwest South Dakota area; one complaint from White River, South Dakota; a complaint from a veterinarian in North Dakota; and one complaint from Nebraska. Only a fraction of the cattle in each herd became sick and some of the sick cattle had not been vaccinated with the vaccine.

Dr. David Reed, a virologist and associate professor of veterinary science at South Dakota State University, testified that IBR is caused by a herpes virus and that it takes some five or six different forms. Some of the clinical signs of IBR in cattle are a high fever, crusted and runny nose, and runny eyes. He testified that bovine virus diarrhea (BVD) is a virus disease that has clinical symptoms similar to those in an animal suffering from IBR. He testified further that the use of an improperly attenuated IBR vaccine on stressed animals, such as those brought in from a pasture and run through a chute and vaccinated, could result in the incidence of IBR in any one of its five or six forms. Dr. Reed conducted virus isolation tests on tissues from an animal from plaintiff Pearson's herd and isolated IBR virus from a pool of intestines and spleen. He also conducted virus isolation tests on tissues from animals from the Fried, Van Slooten and Schuh herds, but detected no viral agents. In response to a hypothetical question based upon the clinical symptoms observed in plaintiffs' herds and the other herds in the area that became ill after being vaccinated with Serial 651-B, Dr. Reed testified that in his opinion the vaccine was the cause of the sickness and death that followed its use. He explained that the reason not all of the animals in the herds became ill following vaccination was that only a percentage of the animals in each herd would be susceptible to IBR. He admitted that with the exception of the Pearson herd he did not know what disease was caused by the vaccine. He also acknowledged that the IBR virus isolated in the Pearson animal could have been the IBR virus contained in the vaccine. He further acknowledged, as did the veterinarians who testified in behalf of plaintiffs, that both IBR and BVD can exist in an animal without the manifestation of any clinical symptoms of those diseases.

All of the veterinarians who examined and treated plaintiffs' cattle following vaccination expressed the opinion that the illness in the cattle resulted from the use of the vaccine. All of the veterinarians acknowledged that a positive diagnosis of IBR or BVD could be made only as a result of a laboratory test that isolated those viruses in animal tissue. Notwithstanding this, however, they all steadfastly maintained their opinions that based upon their experience in diagnosing livestock illnesses from observations of clinical symptoms in the field, the animals in question were suffering illnesses resulting from the use of the vaccine. The veterinarians were in agreement that it is a difficult task to isolate either IBR or BVD virus from tissues taken from dead animals in the field, in view of the fact that in many cases there is a considerable delay between the death of the animals and the delivery of the tissues to the animal health laboratory at Brookings. The evidence revealed that the tissues submitted from plaintiffs' animals were quite decomposed by the time the veterinarians performed the post mortem examinations. The veterinarians were in agreement that the fact that the...