Renfro v. Black

• Court: Ohio Supreme Court
• Writing for the Court: MOYER; HERBERT R. BROWN; HERBERT R. BROWN
• Citation: Renfro v. Black, 52 Ohio St.3d 27, 556 N.E.2d 150 (Ohio 1990)
• Decision Date: 13 June 1990
• Docket Number: No. 89-196,89-196
• Parties: , Prod.Liab.Rep. (CCH) P 12,524 RENFRO et al., Appellants, v. BLACK; Smith Laboratories, Inc., Appellee.

Page 27

52 Ohio St.3d 27

556 N.E.2d 150, Prod.Liab.Rep. (CCH) P 12,524

RENFRO et al., Appellants, v. BLACK; Smith Laboratories, Inc., Appellee.

No. 89-196.

Supreme Court of Ohio.

Submitted Feb. 20, 1990.

Decided June 13, 1990.

Murray & Murray Co., L.P.A., and Michael T. Murray, Sandusky, for appellants.

Robison, Curphey & O'Connell, James E. Brazeau, Toledo, Wildman, Harrold, Allen & Dixon, James P. Dorr and Steven E. Danekas, for appellee.

MOYER, Chief Justice.

Plaintiffs-appellants' first and third propositions of law are interrelated and will be considered together.

I

Plaintiffs argue that the trial court should have permitted the jury to consider the "timeliness" of a so-called "Dear Doctor" letter dated "November, 1983" that Smith Laboratories sent to Dr. Dwight, and that the trial court should have instructed the jury as plaintiffs requested in proposed instruction No. Four. ²

Dr. Dwight testified that he periodically received correspondence from Smith Laboratories regarding the drug Chymodiactin. Prior to injecting Yvonne Renfro with Chymodiactin, Dr. Dwight received a November 1983 "Dear Doctor" letter from Smith Laboratories.

Among other information, the four-page letter reported that ten patients had suffered "CNS disturbances" of varying degree after chemonucleolysis, including chills, hypertension, shifting levels of consciousness, paresis or paraplegia, and, in some instances, cerebral hemorrhage. Three deaths were reported as having occurred in the ninety days preceding the November 1983 letter. These deaths were for reasons other than the paraplegia suffered by Mrs. Renfro. ³

The essence of plaintiffs' argument with regard to the "Dear Doctor" letter is that Smith Laboratories was negligent in not sending the letter in sufficient time to warn physicians who might perform a chemonucleolysis procedure. Plaintiffs' requested instruction No. Four would direct the jury that a warning may be found to be unreasonable if it was unduly delayed, reluctant in tone or lacking in a sense of urgency. The trial court refused to submit the question of timeliness of the November letter because delay had not been established as a proximate cause of Mrs. Renfro's injury.

As plaintiffs indicate, in Seley v. G.D. Searle & Co. (1981), 67 Ohio St.2d 192, 198, 21 O.O.3d 121, 124, 423 N.E.2d 831, 837, we stated that "[a] warning may be found to be unreasonable in that it was unduly delayed, reluctant in tone or lacking in a sense of urgency." However, a trial court has discretion whether to give a requested jury instruction based on the dispositive issues presented during trial. " 'It is the duty of a trial court to submit an essential issue to the jury when there is sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue. * * * ' " Bostic v. Connor (1988), 37 Ohio St.3d 144, 147, 524 N.E.2d 881, 884. A review of the record indicates that the emphasis at trial was the content or substance of the warning in the correspondence sent by Smith Laboratories to Dr. Dwight and other physicians.

Dr. Dwight testified that he had attended a seminar in Chicago in which he learned that if either the Chymodiactin or the dye got into the intrathecal space the result could be paralysis or subarachnoid transverse myelitis. Additionally, Dr. Dwight knew from the DPI that the drug was extremely toxic when injected intrathecally in animals, and therefore great caution must be exercised in assuring that Chymodiactin is not injected intrathecally. He testified to a full understanding of these dangers before he performed the procedure on Mrs. Renfro.

Dr. Dwight testified that he received and read the November 1983 letter before performing the chemonucleolysis on Renfro. Nevertheless, Dr. Dwight felt that the warning contained in the November "Dear Doctor" letter was insufficient to warn of paraplegia as a possible side effect. Clearly, the issue for the fact finder was to determine whether the substance of the letter constituted adequate warning in light of the three new cases of paraplegia reported to Smith Laboratories in August and October 1983.

In view of the evidence before the court, we find no error in the trial court's refusal to permit the issue of timeliness of the "Dear Doctor" letter to be placed before the jury. The issue of whether testimony or evidence is relevant or irrelevant, confusing or misleading, is best decided by the trial judge, who is in a significantly better position to analyze the impact of the evidence on the jury. Columbus v. Taylor (1988), 39 Ohio St.3d 162, 164, 529 N.E.2d 1382, 1385; Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 24 O.O.3d 322, 436 N.E.2d 1008. The first and third propositions of law are overruled.

II

In their second proposition of law, plaintiffs argue that the trial court erred in ruling that "the only evidence of other adverse reactions to Chymodiactin which are relevant are those related to adverse reactions which are substantially similar to the alleged reaction in this cause of action."

The law in the area of admissibility of "prior accidents" or occurrence evidence was succinctly stated in McKinnon v. Skil Corp. (C.A.1, 1981), 638 F.2d 270. There, the court considered admissibility of prior accident evidence in a products liability action concerning an allegedly defective Skil saw. The plaintiff attempted to introduce answers to interrogatories regarding prior personal injury accidents involving the Skil saw. The answers did not indicate how the injuries occurred or whether they resulted from defective lower blade guards. Plaintiff contended that the interrogatory answers were admissible on Skil's knowledge of prior accidents relevant to the duty to warn, to establish evidence of the existence of defect, causation, and negligent design, and to attack the credibility of the defendant's expert witness. The court held that "[e]vidence of prior accidents is admissible on the first four issues only if the proponent of the evidence shows that the accidents occurred under circumstances substantially similar to those at issue in the case at bar. * * * " (Citations omitted.) Id. at 277. See Hale v. Firestone Tire & Rubber Co. (C.A.8, 1985), 756 F.2d 1322, 1332; P.B. Mutrie Motor Transp., Inc. v. Interchemical Corp. (C.A.1, 1967), 378 F.2d 447, 450-451 (substantial identity); Jaffe v. Powell (1929), 121 Ohio St. 355, 169 N.E. 31, syllabus; Cottman v. Federman Co. (1942), 71 Ohio App. 89, 93, 25 O.O. 435, 437, 47 N.E.2d 1009, 1011; Robitaille v. Netoco Community Theatres of North Attleboro, Inc. (1940), 305 Mass. 265, 25 N.E.2d 749.

As plaintiffs admit, the trial court properly permitted evidence of three cases of paraplegia that were reported to Smith Laboratories in August and October 1983. During cross-examination of Dr. Eugene J. Nordby, a consultant for Smith Laboratories, plaintiffs sought introduction of other alleged incidents of neurological reaction to Chymodiactin, which presumably are those listed in defendant-appellee's answer to plaintiff's interrogatory No. 2. ⁴ The following exchange occurred:

"[Plaintiffs' counsel]: Your Honor, I understand the Court has already ruled that there can be no testimony relating to any adverse neurological reaction which occurred.

"[Court]: Which are not substantially similar.

"[Plaintiffs' counsel]: Which are not substantially similar meaning paraplegia, as I understand the court's ruling?

"[Court]: I don't know anything else that is substantially similar.

"[Plaintiffs' counsel]: Oh yeah.

"[Court]: Name me something.

"[Plaintiffs' counsel]: Paresis.

"[Court]: That's only weakness.

"[Plaintiffs' counsel]: Paresis, permanent paresis may be if it's permanent. That might be substantially similar if it's a wide thing but a foot drop is clearly not substantially similar and it must be permanent and I think substantially similar to this case would be paralysis. That's permanent and that's wide spread. That means at least beyond one limb. * * * I feel it essential to get it into the record at this point in time because I do feel the other cases of adverse neurological reaction are relevant. I don't see where they would have to be exact same types like even paralysis because--

"[Court]: I think the law is substantially clear. I may be 100% wrong. Do you wish to add anything?

"[Defendant's counsel]: My only concern is that * * * [plaintiffs' counsel] is not going to go into those areas?

"[Plaintiffs' counsel]: I'm not going to."

In Stedman's Medical Dictionary, Fifth Unabridged Lawyer's Edition (1982) 1031, "paresis" is defined as "partial or incomplete paralysis," or a disease of the brain known as "dementia paralytica "; "paraparesis" is defined as "a slight degree of paralysis, affecting the lower extremities." Id. at 1028. It is arguable that the cases of paraparesis listed in the defendant's answer to the interrogatory may have been similar to the event causing Mrs. Renfro's paraplegia. The November "Dear Doctor" letter mentions paresis, but we find no reference in the answer to plaintiffs' interrogatory to "paresis" events. However, the law is clear that in order for such occurrences to have been admissible to show prior knowledge on the part of Smith Laboratories, these incidents must have occurred under circumstances substantially similar to those in Renfro's case. We find no proffer by plaintiffs to show how the four cases of paraparesis or the other cases of neurological reactions were substantially similar to the circumstances leading to Mrs. Renfro's paraplegia so as to render the evidence admissible.

A trial judge has wide discretion when determining the admissibility of such evidence, and will not be disturbed on appeal absent a clear showing of abuse of discretion. Worsham v. A.H. Robins Co. (C.A.11, 1984), 734 F.2d 676, 686. On review of the substantial record in this case, we find no abuse of discretion and will not substitute our judgment for...