Stevens v. Parke, Davis & Co.

• Decision Date: 14 March 1973
• Citation: 107 Cal.Rptr. 45,507 P.2d 653,9 Cal.3d 51
• Court: California Supreme Court
• Parties: , 507 P.2d 653, 94 A.L.R.3d 1059 Janet STEVENS, a Minor, etc., et al., Plaintiffs and Appellants, v. PARKE, DAVIS & COMPANY, Defendant and Appellant, A. J. Beland, Defendant and Respondent. L.A. 30030. In Bank

Page 45

107 Cal.Rptr. 45

9 Cal.3d 51, 507 P.2d 653, 94 A.L.R.3d 1059

Janet STEVENS, a Minor, etc., et al., Plaintiffs and Appellants, v. PARKE, DAVIS & COMPANY, Defendant and Appellant A. J. Beland, Defendant and Respondent.

L.A. 30030.

Supreme Court of California,

In Bank.

March 14, 1973.

Harney, Ford & Schlottman, Harney, Ford & Charbonneau, David M. Harney, Robert L. Charbonneau and Robert E. Ford, Los Angeles, for plaintiffs and appellants.

Gibson, Dunn & Crutcher, Newport Beach, and G. Edward Fitzgerald, Los Angeles, for defendant and appellant.

Ball, Hunt, Hart, Brown & Baerwitz, Beverly Hills, and George C. McCarthy, Long Beach, for defendant and respondent.

SULLIVAN, Justice.

In this action for damages for wrongful death, plaintiffs appeal from an order granting defendants Parke, Davis & Company (Parke, Davis) and A. J. Beland, M.D. (Dr. Beland), a new trial on the issue of damages. Defendant Parke, Davis appeals from the judgment entered on the verdict in favor of plaintiffs and against Parke, Davis, and from the order denying said defendants' motion for judgment notwithstanding the verdict. ¹

Plaintiffs Janet, Suzanne and Kennan Stevens are the surviving children, and plaintiff John Stevens is the surviving husband, of Phyllis Stevens who died allegedly as a result of ingesting the drug Chloromycetin which was manufactured by Parke, Davis and prescribed by Dr. Beland. Since her youth, Mrs. Stevens had suffered from a chronic lung condition that was both discomforting and conducive to lung infection. She was nevertheless able to function normally as a housewife and mother of three children, and planned, after receiving a teaching credential, to work part-time as a substitute teacher.

In 1964, Mrs. Stevens sought the aid of Dr. Beland to see if something could be done for her lung condition that would make it easier for her to teach. Dr. Beland's initial physical examination disclosed that Mrs. Stevens, then 38 years of age, was of generally good health. However, X-rays confirmed that she was suffering from a lung condition diagnosed as bilateral bronchiectasis, an anatomical derangement in the bronchial tree that increases the susceptibility to lung infection. To alleviate this disorder, Dr. Beland recommended and eventually performed surgery on September 1, 1964.

Two days after the operation, Dr. Beland prescribed the first of six administrations of Chloromycetin, a broad-spectrum antibiotic used to guard against infection. The final dose was administered on November 20, 1964. Mrs. Stevens failed to improve following the surgery, and in June 1965 she was referred to Dr. Kurnick, a hematologist.

Dr. Kurnick found Mrs. Stevens to be suffering from bone marrow failure (aplastic anemia), that is, the inability of bone marrow to produce blood cells in sufficient numbers to ward off general infection. He testified that, in his opinion, this condition was caused by the administration of Chloromycetin, which has a history of causing aplastic anemia in certain patients and is thus considered by members of the medical profession to be a dangerous drug. ² Mrs. Stevens died of pneumonia on December 25, 1965, as a result of the inability of her body to produce the necessary blood cells to resist infection.

We summarize the evidence in the record bearing upon the development and promotion of the above antibiotic. Chloromycetin is the trade name given by Parke, Davis to the antibiotic drug chloramphenicol. Discovered in 1946, the drug first reached the market in 1949 after tests by Parke, Davis as to its effectiveness. Shortly thereafter, articles began appearing in medical journals, associating Chloromycetin with blood dyscrasias (disorders) such as aplastic anemia. In 1952, the United States Food and Drug Administration (FDA), after its own investigation, allowed continued sale of the drug but directed Parke, Davis to include the following warning on each label of the drug: 'Warning--Blood dyscrasias may be associated with intermittent or prolonged use. It is essential that adequate blood studies be made.' ³ Shortly thereafter, Parke, Davis distributed 'Dear Doctor' letters to the medical profession, summarizing the results of the FDA investigation.

Notwithstanding the FDA's efforts to require adequate warnings concerning the use of Chloromycetin, Parke, Davis retained considerable latitude to promote and advertise its drug, in some instances without any warning whatsoever. Following the FDA directive of 1952, Parke, Davis sent letters to its salesmen that appeared to minimize the dangers of the drug. ⁴ Its salesmen continued concentrated promotions of Chloromycetin from 1952 through the period covered in this case. These promotions included personal visits to doctors by 'detail men' urging them to use the drug; no verbal warnings were given on these occasions, although brochures left with the physicians apparently included written warnings. Other promotional methods included the dissemination of calendars, rulers and other 'give-aways' carrying the name Chloromycetin, but no warning language. Full-page 'reminder ads' were published in medical journals, but contained no reference to the possibility of harmful side effects. ⁵ Nor did Parke, Davis include any warning concerning Chloromycetin in the description of the drug contained in the 1962 edition of the Physicians' Desk Reference (PDR), an encyclopedia of drugs widely used by physicians. ⁶

Plaintiffs brought the present action for damages for the wrongful death of Phyllis Stevens allegedly caused by the administration of Chloromycetin. The complaint named Parke, Davis and Dr. Beland as defendants, and stated three separate causes of action as to each: liability based on negligence (of Parke, Davis for overpromotion of the drug, and of Dr. Beland, for lack of due care in prescribing it); liability based on breach of implied warranty; and strict liability in tort. After the presentation of plaintiffs' case, the trial court granted Parke, Davis' motion for nonsuit as to the second and third causes of action, but denied it as to the first cause of action based on negligence. ⁷ The court also denied Dr. Beland's motion for nonsuit. ⁸

The jury returned a verdict in favor of plaintiffs and against both defendants in the amount of $400,000. The trial court, however, ordered remittitur of the verdict to the sum of $64,673.42 on the ground that excessive damages were awarded due to the 'prejudice and passion' of the jury. Plaintiffs' failure to consent to the remission resulted in an order granting defendants' motions for new trial solely on the issue of damages. The instant appeals followed.

I

We first take up plaintiffs' appeal from the order granting a new trial. Each of the defendants separately moved for a new trial on several grounds. The trial judge denied the motions on the issue of liability but granted a new trial as to both defendants solely on the issue of damages. An examination of the court's order, which we set forth in relevant part in the margin, ⁹ discloses that it was based on the sole ground that the damages were excessive. (Code Civ.Proc., § 657, subd. 5.) ¹⁰ Plaintiffs contend that this order should be reversed because it fails to contain an adequate specification of reasons in compliance with Code of Civil Procedure section 657. We agree.

Section 657 provides in relevant part as follows: 'When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated.

'. . . . .

'. . . on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons . . ..' (Italics added.)

We have said that '(n)o hard and fast rule can be laid down as to the content of such a specification, and it will necessarily vary according to the facts and circumstances of each case.' (Mercer v. Perez (1968) 68 Cal.2d 104, 115, 65 Cal.Rptr. 318, 322, 436 P.2d 315, 322.) However, we have emphasized on several occasions that if the ground relied upon is 'insufficiency of evidence,' the trial judge's specification of reasons 'must briefly identify the portion of the record which convinces the judge 'that the court or jury clearly should have reached a different verdict or decision. " (Id. at p. 116, 65 Cal.Rptr. at p. 323, 436 P.2d at p. 323, fn. omitted, quoting from Code Civ.Proc., § 657, third paragraph; see Miller v. Los Angeles County Flood Control District (1973) 8 Cal.3d 689, 106 Cal.Rptr. 1, 505 P.2d 193; Scala v. Jerry Witt & Sons (1970) 3 Cal.3d 359, 90 Cal.Rptr. 592, 475 P.2d 864.)

In Mercer, in delineating the particular requirement for the ground of insufficiency of evidence, we indicated that only in this way could the twofold purpose of the specification exacted by the statute be fulfilled. That purpose, we explained at length, was to encourage careful deliberation by the trial court before ruling on the new trial motion and to make a sufficiently precise record to permit meaningful appellate review. (Mercer v. Perez Supra, 68 Cal.2d at pp. 112--116, 65 Cal.Rptr. 315, 436 P.2d 315.)

In Scala and Miller we struck down new trial orders that, although purporting to specify reasons to support the ground of insufficiency of the evidence, were phrased in terms of ultimate facts ¹¹ and thus merely restated the grounds of the orders. As we stated in Scala: '(A) specification which merely recites that under the court's view of the evidence 'the defendant was not negligent' or 'the plaintiff was negligent' is of little if any assistance to the appellate or to the reviewing court.' (Scala v. Jerry Witt & Sons, Supra, ...