Tidwell v. Upjohn Co.

• Decision Date: 10 September 1993
• Citation: 626 So.2d 1297
• Parties: Prod.Liab.Rep. (CCH) P 13,670 Brenda G. TIDWELL, as administratrix of the Estate of James L. Tidwell, deceased v. The UPJOHN COMPANY. 1920265.
• Court: Alabama Supreme Court

Page 1297

626 So.2d 1297

Prod.Liab.Rep. (CCH) P 13,670

Brenda G. TIDWELL, as administratrix of the Estate of James L. Tidwell, deceased v. The UPJOHN COMPANY.

1920265.

Supreme Court of Alabama.

Sept. 10, 1993.

Rehearing Denied Nov. 5, 1993.

Stephen D. Heninger of Heninger, Burge & Vargo, Birmingham, for appellant.

Stephen E. Scheve of Shook, Hardy & Bacon P.C., Kansas City, MO, and Warren B. Lightfoot and John M. Johnson of Lightfoot, Franklin, White & Lucas, Birmingham, for appellee.

PER CURIAM.

Brenda G. Tidwell, as administratrix of the estate of her husband, James L. Tidwell, appeals from the summary judgment entered in favor of the Upjohn Company in her action against it, St. Vincent's Hospital ("St. Vincent's"), and Dr. Lamar Ager following her husband's suicide while a patient at St. Vincent's. The trial court entered a summary judgment in favor of Dr. Ager and entered a judgment based on the jury's verdict in favor of the hospital. Brenda Tidwell does not appeal from either of those judgments.

Pursuant to the Alabama Extended Manufacturer's Liability Doctrine, Brenda Tidwell alleged in her complaint that Upjohn had negligently manufactured, marketed, and distributed the drug Halcion, which James Tidwell had been taking immediately before his death. She also alleged 1) that Upjohn had wantonly manufactured, marketed, and distributed Halcion; 2) that it had negligently and wantonly failed to provide adequate warnings regarding the use of Halcion; and 3) that it had committed fraud, misrepresentation, and deceit in its development and marketing of Halcion. The sole issue on appeal is whether the deposition testimony of Mrs. Tidwell's two proffered experts, James O'Donnell, a pharmacist and pharmacologist, and Dr. Lyle Rossiter, a psychiatrist, was sufficient to establish proximate cause.

On Monday, February 22, 1988, after having had trouble sleeping for several nights, Mr. Tidwell consulted his family physician, Dr. Joseph Welden, saying that he had not been feeling well for about six weeks. Dr. Welden prescribed .25-milligram dosages of Halcion, a sleep-inducing drug, which Mr. Tidwell began taking that night. Mr. Tidwell returned to Dr. Welden on Thursday, February 25, 1988, because he was still sleeping fitfully. At that point, Dr. Welden surmised that, if there was not an organic explanation for Mr. Tidwell's problems, he could be suffering from major depression. As a result, Dr. Welden had Mr. Tidwell admitted to St. Vincent's that day to be tested for a possible tumor and to see if there was a physiological explanation for his problems. After the tests came back normal, Dr. Welden referred Mr. Tidwell to Dr. Ager, a psychiatrist, whose initial impression was that Mr. Tidwell was severely depressed. His opinion was that Mr. Tidwell was suffering from major depressive syndrome, and he increased Mr. Tidwell's dosage of Halcion to .5 milligrams. Mr. Tidwell took this amount on Friday evening and, according to the nurse's notes, was afterwards feeling better and was walking in the hall with his wife.

Mrs. Tidwell visited her husband on Saturday morning and brought a couple of newspapers for him to read. Although Mr. Tidwell attempted to look at one of them, he became frustrated and threw it on the floor, declaring that he thought he was "losing [his] mind." After a nurse brought his breakfast to him, Mr. Tidwell ate a few bites, picked up his coffee cup, went into the bathroom, and locked the door. Immediately after he entered the bathroom, Mr. Tidwell shot himself in the head with a handgun taken from his travel bag.

Mrs. Tidwell contends that the increased dosage of Halcion caused her husband to kill himself and that Upjohn failed to warn physicians properly of the effects of a .5-milligram dosage of Halcion. To prove causation, Mrs. Tidwell offered the deposition testimony of Mr. O'Donnell and Dr. Rossiter. Upjohn contends that the testimony of both was insufficient to establish causation. Specifically, Upjohn argues that Mr. O'Donnell was not competent to testify as an expert in this case because he is not a medical doctor and that, even if he were, he still would not qualify because, by his own admission, he had insufficient knowledge regarding Halcion and its use.

The trial court's order granting Upjohn's motion for summary judgment reads:

"1. The testimony of Mr. James O' Donnell is allowed and considered for the purpose of proving the pharmacologic properties of Halcion and on the question of warning. The testimony of Mr. O'Donnell is disallowed, however, insofar as it purports to render opinions concerning the cause of death of Mr. Tidwell or the question of whether the ingestion of Halcion caused Mr. Tidwell's death.

"2. The admissible medical/psychiatric testimony concerning causation, especially that of Dr. Rossiter being considered in the light most favorable to plaintiff suggests, at best, the mere possibility that Halcion was a contributing cause of Mr. Tidwell's death."

The trial court's summary judgment in favor of Upjohn was appropriate if there was no genuine issue of material fact and if Upjohn was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. Once Upjohn made a prima facie showing that it was entitled to a judgment, the burden shifted to Mrs. Tidwell to present substantial evidence supporting her position and creating a genuine issue of material fact, to withstand the granting of Upjohn's motion. Hilliard v. City of Huntsville Electric Utility Board, 599 So.2d 1108 (Ala.1992). Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); Ala.Code 1975, § 12-21-12.

Proximate cause is an essential element of Mrs. Tidwell's prima facie case of negligent failure to adequately warn. See Kelly v. M. Trigg Enterprises, Inc., 605 So.2d 1185 (Ala.1992); Gurley v. American Honda Motor Co., 505 So.2d 358 (Ala.1987); E.R. Squibb & Sons, Inc. v. Cox, 477 So.2d 963 (Ala.1985). It is also an essential element of her other causes of action against Upjohn: wantonness and fraud. Thus, the sole issue on appeal is whether the testimony offered by Mrs. Tidwell was "substantial evidence" that Mr. Tidwell's treatment with the drug Halcion at a dosage of .5 milligrams proximately caused him to commit suicide.

A ruling on the admissibility of expert testimony is largely within the discretion of the trial court and will not be overturned unless there has been an abuse of discretion. Bell v. Hart, 516 So.2d 562 (Ala.1987); Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972). The purpose of expert testimony is to aid the trier of fact where the subject matter is beyond the ken of the average juror. Ex Parte Hill, 553 So.2d 1138 (Ala.1989); Thompson v. Jarrell, 460 So.2d 148 (Ala.1984). Thus, where a witness has sufficient "knowledge, skill, experience, or training ... that his opinion will be considered in reason as giving the trier of fact light upon the question to be determined" it should be admitted as expert testimony. Ellingwood v. Stevens, 564 So.2d 932 (Ala.1990), citing, C. Gamble, McElroy's Alabama Evidence, § 127.01(5) (3d ed. 1977). A critical distinction in this case is that an objection to testimony of a competent expert based on the witness's lack of knowledge goes to the weight of the evidence and not its admissibility. See Ellingwood, supra; Thaggard v. Vafes, 218 Ala. 609, 119 So. 647 (1929); Pollard v. State, 549 So.2d 593 (Ala.Crim.App.1989).

This is not a medical malpractice case. Mrs. Tidwell's claim against Upjohn is based on the Alabama Extended Manufacturer's Liability Doctrine, Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976); Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976). See Ala.Code 1975, § 6-5-500 et seq. While expert testimony of a physician is required in a medical malpractice case in order to determine the proper medical standard of care, Levesque v. Regional Medical Center Board, 612 So.2d 445 (Ala.1993), the testimony of a medical doctor is not required in order to prove causation relating to the effects of drugs or toxins. See Bell v. Hart, supra; Police & Fireman's Ins. Ass'n v. Mullins, 260 Ala. 173, 69 So.2d 261 (1953); Thaggard, supra. In Bell, this Court cited with approval a passage from Rodriguez v. Jackson, 118 Ariz. 13, 574 P.2d 481 (Ariz.App.1977), clearly stating that a witness need not be a physician to testify as to medical causation.

Upjohn contends that the trial court was correct in ruling that Mr. O'Donnell was not qualified to render an expert opinion on whether the increased dosage of Halcion proximately caused Mr. Tidwell to kill himself, because Mr. O'Donnell is not a physician. However, Upjohn, in its brief to this Court, acknowledges that the issue of causation in this case relates to Mr. O'Donnell's expertise in pharmacology. Upjohn stated that "[t]he complex issues of medical causation [in this case] turn on testimony relating to psychopharmacology, pharmokinetics, epidemiology, and psychiatry" (emphasis added).

Mr. O'Donnell is a pharmacist and pharmacologist with a Pharm.D. degree from the University of Michigan. He is the editor-in-chief of a professional pharmacy journal, has served as the assistant director of pharmacy at a Chicago hospital for 12 years, and has been an assistant professor of pharmacology at a Chicago medical school. The trial court considered him to be an expert on the pharmacologic properties of Halcion. Mr. O'Donnell testified that he possesses expertise in the area of pharmacologic toxic effects of benzodiazepines such as Halcion.

Given Mr. O'Donnell's education, experience, study, and background in pharmacology, we conclude that he had sufficient knowledge to testify as an expert on the issue of whether Halcion ingestion at a dosage of .5...