Peters v. Johnson & Johnson Products, Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: PUDLOWSKI
• Citation: Peters v. Johnson & Johnson Products, Inc., 783 S.W.2d 442 (Mo. App. 1990)
• Decision Date: 23 January 1990
• Docket Number: No. 55322,55322
• Parties: Jason PETERS, et al., Plaintiffs-Appellants, v. JOHNSON & JOHNSON PRODUCTS, INC., et al., Defendants-Respondents.

Page 442

783 S.W.2d 442

Jason PETERS, et al., Plaintiffs-Appellants, v. JOHNSON & JOHNSON PRODUCTS, INC., et al., Defendants-Respondents.

No. 55322.

Missouri Court of Appeals,

Eastern District,

Division Two.

Jan. 23, 1990.

Daniel R. Devereaux, St. Louis, for plaintiffs-appellants.

Arter & Hadden, George Gore, Victoria Vance, Cleveland, Ohio, Evans & Dixon, Gerre S. Langton, St. Louis, for defendants-respondents.

PUDLOWSKI, Presiding Judge.

This is an appeal of a judgment in accord with a jury verdict. The appellant alleged that his mother, Sheri Peters, died on November 27, 1983 as a result of contracting toxic shock syndrome (TSS) from her use of respondents' defective o.b. tampon.

The transcript reveals that the appellant prior to trial discarded his theories of negligence and pursued his cause of action on the sole theory of a defective commodity in a strict product liability claim. Before we address appellant's numerous claims of trial court error, we are reminded of our Supreme Court's admonition that the singular inquiry in a strict product liability claim is the defective condition of the product not the manufacturer's knowledge, negligence or fault. Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 438 (Mo. banc 1984). Further, in Racer v. Utterman, 629 S.W.2d 387, 395 (Mo.App.1981), we observed that strict product liability is not a traditional cause of action as it now exists and that knowledge, fault or conduct of the defendant is simply no longer relevant. Strict liability in tort imposes a duty on a manufacturer not to introduce into commerce an unreasonably dangerous product--whether that danger arises from defective manufacture, defective design, or failure to warn of danger. The breach of that duty occurs by the act of introducing such product into commerce. That is the only conduct which is relevant to the manufacturer's breach of duty.

Appellant's first contention of error is that the trial court erred in excluding evidence of consumer complaints, adverse reaction reports, TSS case reports, and other company documents establishing known cases on the grounds they were inadmissible hearsay.

A trial court has considerable discretion in the exclusion of evidence and unless there is an abuse of that discretion its action will not be grounds for reversal. Appellant recognizes this principle but relies heavily on West v. Johnson & Johnson Products, Inc., 174 Cal.App.3d 831, 220 Cal.Rptr. 437, 454 (6 Dist.1985) where the California court allowed evidence of consumer complaints. In West, the plaintiff alleged four causes of action, negligence, breach of express warranty, breach of implied warranty of fitness and strict product liability based on defects in design and manufacture. The fourth allegation also included an allegation relating to punitive damages. The trial court, relying on California's Evidence Code, permitted the consumer complaints. After plaintiff rested, she advised the trial court that she would proceed solely on her fourth cause of action, i.e., strict product liability. J.J.P. made no request for a limiting instruction nor afforded itself the opportunity to point out in direct and cross-examination the dissimilarities of the complaints. Under these circumstances the trial court allowed that evidence to be admitted.

This reliance on West is inapposite. The facts and circumstances in West are dissimilar and we hold that the trial court did not abuse its discretion in this case in excluding the proposed evidence.

Appellant also argues that the consumer complaints should have been admissible under the business records exception to the hearsay rule. For business records exception to the hearsay rule to be admitted in evidence we look to § 490.680 of The Uniform Business Records as Evidence Law. It clearly states evidence shall be competent "if, in the opinion of the court, the sources of information method and time of preparation are such as to justify its admission." Thus, "the bottom line" regarding the admissibility of the business records is the discretionary determination by the trial court of their trustworthiness. Koenig v. Babka, 682 S.W.2d 96, 100 (Mo.App.1984). We find no abuse of discretion here. Although found by appellant among the respondent's business records during discovery, these unsolicited letters and unsubstantiated reports from alleged tampon users do not stand as to their trustworthiness and the court correctly forbade their introduction.

Appellant next argues that the court erred in excluding evidence of scientific knowledge, events and developments and medical and scientific literature subsequent to 1983. However, the transcript reflects that the trial court deferred ruling on the matter until the issue came up as the evidence was presented. On the first day of trial, during appellant's direct examination of Dr. Michael Graham appellant sought to introduce an epidemiological study performed by the Centers of Disease Control ("CDC") published in 1987. Appellant contended that the study, known as CDC III, purported to prove that o.b. tampons were defective because of an increased statistical association with cases of TSS. Over objection, the court allowed CDC III to be received. Appellant was permitted to use CDC III. Thereafter, the appellant was permitted to cross-examine the respondent's experts and witnesses about their interpretation of and the significance they attached to the findings reported in CDC III. Appellant was also permitted to make further reference to CDC III during his closing argument to the jury. The record makes it clear that the appellant was not precluded from making use of post-1983 evidence in his effort to prove a defect in the o.b. tampon.

Further, contrary to the appellant's representation in his brief, CDC III was not the only post-1983 document to be admitted into evidence. A 1987 article by Dr. Merlin Bergdoll which reported the results of his studies of the effects of different tampon fibers on the growth rates of staph aureus bacteria and proliferation of the TSS toxin known as TSST-1 was also received into evidence. Point II is denied.

In Point III appellant challenges the court's ruling to exclude all evidence of and reference to aggravating circumstances. The specific evidence the appellant refers to would have been admissible to enhance damages. However, since the jury decided only liability against the appellant and never reached the issue of damages, whatever error there was in excluding the evidence was harmless. The "refusal to admit evidence does not constitute reversible error unless it would have changed the result reached." Green v. Stanfill, 641 S.W.2d 490, 492 (Mo.App.1982). When the excluded evidence relates to damages, the error, if any will be considered harmless if the jury rules against the appellant on the issue of liability. Jensen v. Walker, 496 S.W.2d 317, 320 (Mo.App.1973), citing Mead v. Grass, 461 S.W.2d 708 (Mo.1971). This basic rule is reiterated in a source relied on by the appellant, Guthrie v. Missouri Methodist Hospital, 706 S.W.2d 938 (Mo.App.1986). In that case, our Kansas City brethren determined that the erroneous exclusion of damage evidence was harmless since the jury never reached the issue of damages.

In his fourth point relied on appellant claims that the trial court erred in excluding the alleged statement by decedent to her sister that the...