Tetuan v. A.H. Robins Co.

• Citation: 738 P.2d 1210,241 Kan. 441
• Decision Date: 12 June 1987
• Docket Number: No. 58502,58502
• Parties: , 56 USLW 2044 Loretta L. TETUAN, Appellee, v. A.H. ROBINS COMPANY, Appellant.
• Court: United States State Supreme Court of Kansas

Page 1210

738 P.2d 1210

241 Kan. 441, 56 USLW 2044

Loretta L. TETUAN, Appellee, v. A.H. ROBINS COMPANY, Appellant.

No. 58502.

Supreme Court of Kansas.

June 12, 1987.

Syllabus by the Court

1. When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.

2. Actionable fraud includes an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or recklessly made with disregard for the truth, where another party justifiably relies on the statement and acts to his injury or damage.

3. Actionable fraud also includes anything calculated to deceive, such as omissions or concealment of acts and/or facts which legally or equitably should be revealed, which results in damage to another.

4. Reliance in an actionable fraud case must be reasonable, justifiable, and detrimental.

5. Fraud is never presumed and must be proved by clear and convincing evidence.

6. Where a patient relies upon a physician for treatment or advice as to an ethical or prescription device or drug justifiable reliance by the physician on the misrepresentations or concealment by the manufacturer of that device or drug, constitutes justifiable reliance by the patient in an action for fraud against the manufacturer.

7. Punitive damages are allowed not because of any special merit in the injured party's case, but are imposed to punish the wrongdoer for malicious, vindictive, or willful and wanton invasion of the injured party's rights, the purpose being to restrain and deter others from the commission of like wrongs.

8. In determining whether improper actions by counsel amount to reversible error, great weight is given to the presence or absence of an objection and the curative effect of a well-phrased admonition to the jury. It is only in the extreme case that counsel's misconduct cannot be cured by instructing the jury to disregard it.

9. In an action by a patient against the manufacturer of an intrauterine device for injuries resulting from the use of the device, the record is examined and it is held that (1) there is no reversible error as to the jury instructions; (2) there is sufficient evidence to support the jury verdict of fraud; (3) plaintiff's lawyers' conduct was not such that it denied defendant a fair trial; (4) the compensatory and punitive damage awards are not excessive; (5) the punitive damage award is not contrary to the public interest nor does it unconstitutionally punish defendant; and (6) the trial court did not commit error by denying defendant's motion for remittitur or new trial.

Ronald D. Heck, of Fisher, Heck & Cavanaugh, Topeka, argued the cause, and Cynthia J. Schriock, of the same firm, was with him on the briefs, for appellant.

Bradley Post, of Post, Syrios & Bradshaw, Wichita, argued the cause, and Andrew Bradshaw, of the same firm, Robert E. Keeshan, of Hamilton, Peterson, Tipton & Keeshan, Topeka, and Gene E. Schroer and Frank Rice, of Schroer & Rice, P.A., Topeka, were with him on the brief, for appellee.

ALLEGRUCCI, Justice:

Plaintiff Loretta L. Tetuan filed the present civil action against defendant A.H. Robins Co., Inc., on January 29, 1982. The plaintiff's suit concerned personal injuries allegedly resulting from her use of an intrauterine contraceptive device known as the "Dalkon Shield," and alleged negligence, civil conspiracy, strict liability in tort, breach of warranty of merchantability, breach of express warranty, fraud, and gross wanton negligence. On May 3, 1985, a jury returned a verdict in the plaintiff's favor for $1.7 million in compensatory damages and $7.5 million in punitive damages. Defendant Robins appeals.

The factual background relating to the plaintiff can be summarized as follows. Loretta Tetuan was born on February 11, 1952. She married Michael Tetuan with whom she had attended school. Plaintiff testified there were no difficulties in the marriage prior to her health problems. The Tetuans had two children: Michael, d.o.b. 12/25/69, and Christina, d.o.b. 7/31/71. Plaintiff did not finish high school and worked in the Ramada Inn laundry department in Topeka, Kansas. She had never had any serious illness other than appendicitis.

Because Christina was born with Down's syndrome, Michael and Loretta decided not to have any more children for awhile, although they did plan to have more children eventually. Plaintiff's sister suggested that she try an intrauterine device (IUD). Plaintiff brought up the subject of an IUD with Dr. Robert Pfuetze on September 14, 1971.

On the same day, Dr. Pfuetze inserted plaintiff with a Dalkon Shield but did not inform her of the brand of the IUD. Dr. Pfuetze had been detailed by Robins representatives on the Dalkon Shield. Dr. Pfuetze did not tell her of any possible danger from infection and said only that her periods would be a little heavier.

Other than the heavier menstrual periods, plaintiff initially suffered no ill effects from the Dalkon Shield. She resumed work at a new job at Josten's Yearbook Company.

In 1974, Mr. Tetuan joined the United States Army and was stationed in Fort Carson, Colorado. Plaintiff accompanied her husband to Colorado. Because her menstrual flow increased, she went to the post clinic. She was told by an Army nurse that she should have her IUD removed to reduce the heavier flow. She was not told of any dangers from the Dalkon Shield or of the possibility of infection. Her periods returned to normal after the first visit. When Mr. Tetuan was discharged, the couple returned to Topeka.

In 1978, she went to Dr. Pfuetze for a Pap smear. She had not had any physical problems prior to this time. She inquired about having the IUD removed. According to plaintiff, Dr. Pfuetze told her, "You've worn it this long, I don't think you'll have any problem with it."

On September 21, 1979, she went to another physician, Dr. Darrell Weber, after experiencing fever and severe pain in the pelvic area. She had missed a week or two of work because of the pain. Dr. Weber told her she had a pelvic infection and gave her some antibiotics. Dr. Weber did not mention her IUD as a possible source of the infection. Dr. Weber testified that he had received no warnings from Robins regarding the dangers of the Dalkon Shield.

Because the antibiotics were ineffective in relieving the pain, she was hospitalized, given additional antibiotics, and then released. In March 1980, Dr. Weber removed the Dalkon Shield. No one had yet indicated to her that the Dalkon Shield IUD might be dangerous.

Because the pain still did not subside, in May 1980 she saw Dr. Lucien Pyle, who referred her to Dr. Charles Joss. In order to remove all the diseased tissue, on June 25, 1980, Dr. Joss performed a "total abdominal hysterectomy with bilateral salpingo oophor"--the complete removal of plaintiff's uterus, Fallopian tubes, and ovaries.

After the operation, the Tetuans' marriage disintegrated and they filed for divorce in March 1981. Plaintiff now works at the American Bindery Company where she makes $4.15 per hour. She testified the operation made her feel less of a woman. Dr. Joss testified that "many women who have lost their pelvic structures have a deep feeling that they've lost their femininity and desirability to their husbands and become depressed and mentally sick this way." Otherwise, her physical prognosis was generally good. Because of the loss of her ovaries, plaintiff will have to take synthetic hormones for the rest of her life. Testimony at trial indicated that women taking these hormones over a long period of time can experience dangerous side effects which, though not common, include

"increased risk of developing cancer of the lining of the womb, endometrial cancer. They're at increased risk of other cancers like breast cancers, they're at increased risk of liver disorders, of gall bladder disease, of abnormal blood clotting with thrombosis and embolisms, some of which are pretty frightening conditions, like stroke, coronary disease, embolism to the vessels of the eye and so forth, very serious kinds of problems can occur."

Of course, plaintiff will not have to worry about endometrial cancer (cancer of the uterus). She no longer has a uterus.

Loretta Tetuan sued defendants Robins and Dr. Weber. The jury apportioned fault as follows: Plaintiff: 16%; Robins: 84%; Dr. Weber: 0%. The jury found for the plaintiff on the fraud count.

In order to understand the issues raised by this appeal, it is necessary to also summarize the history of the Dalkon Shield.

The Dalkon Shield is a white piece of plastic less than two centimeters in diameter. Roughly oval in shape, it contains four phalanges on either side which enable it to remain secure in the uterus and gives the shield a crab-like appearance. Attached to the shield is a black string 8-9 centimeters in length. As with all IUDs, no one knows exactly why the Dalkon Shield inhibits conception.

The Dalkon Shield IUD was originally developed by Irwin S. Lerner and Dr. Hugh Davis. The rights to the device were held by the Dalkon Corporation. The Dalkon Corporation was made up of Lerner, Davis, Dr. Thad J. Earl, and Robert E. Cohn. The Dalkon Corporation began manufacturing Dalkon Shields in late 1968.

On February 1, 1970, Dr. Davis published a study in the American Journal of Obstetrics and Gynecology entitled, The Shield Intrauterine Device: A Superior Modern Contraceptive. This article would soon become the core of Robins' Dalkon Shield promotional campaigns. In the article, Davis related his study of 640 Dalkon Shield insertions, which he claimed established that the Shield had a 1.1% pregnancy rate per year on the...