Toner for Toner v. Lederle Laboratories, a Div. of American Cyanamid Co.

• Decision Date: 16 September 1987
• Docket Number: No. 84-3906,84-3906
• Citation: 828 F.2d 510
• Parties: Prod.Liab.Rep.(CCH)P 11,565 David TONER, Guardian ad litem for Kevin TONER, an infant child, and David Toner and Susan Toner, husband and wife, individually, Plaintiffs-Appellees, v. LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID CO., a corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 510

828 F.2d 510

Prod.Liab.Rep.(CCH)P 11,565

David TONER, Guardian ad litem for Kevin TONER, an infant child, and David Toner and Susan Toner, husband and wife, individually, Plaintiffs-Appellees, v. LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID CO., a

corporation, Defendant-Appellant.

No. 84-3906.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted April 4, 1985.

Decided Sept. 16, 1987.

Elam, Burke, Evans, Boyd & Koontz, Robert J. Koontz, Boise, Idaho, for defendant-appellant.

Webb, Burton, Carlson, Pedersen & Webb, Kenneth L. Pedersen, Curtis R. Webb, Twin Falls, Idaho, Richard D. Poling, Charlotte, N. Car., for plaintiffs-appellees.

Appeal from the United States District Court for the District of Idaho.

Before WRIGHT, KENNEDY and ANDERSON, Circuit Judges.

KENNEDY, Circuit Judge:

This products liability case presented questions of state law which we certified to the Idaho Supreme Court. Toner v. Lederle Laboratories, 779 F.2d 1429 (9th Cir.1986). That court having issued a full opinion in response to the certification, Toner v. Lederle Laboratories, 112 Idaho 328, 732 P.2d 297 (1987), we now complete our disposition of the appeal, and we affirm the judgment for the plaintiff based on the jury's finding of negligence.

The facts are set forth in detail in our previous opinion. 779 F.2d at 1430-31. Kevin Toner, the plaintiff in the trial court, was paralyzed after vaccination with Tri-Immunol, a vaccine manufactured by the defendant, Lederle Laboratories. A state court action commenced by the plaintiff's parents was removed to federal court based on diversity of citizenship. 28 U.S.C. Sec. 1441 (1982). The plaintiff's principal contention was that Lederle had failed to develop and market Tri-Solgen, an alternative vaccine that would have been safer than the one given to him. In a special verdict, the jury found that Lederle was negligent in connection with the product, and that the negligence was the proximate cause of the plaintiff's injuries. In further special verdicts, the jury rejected the plaintiff's alternative theories of strict liability and breach of warranty. The jury awarded $1,131,200 in damages on the negligence claim. See 779 F.2d at 1433.

On appeal Lederle argues that the jury instructions on negligence were inadequate for failure to state that certain drugs are unavoidably unsafe and that it is permissible to market such products despite risks inherent in their use. See Restatement (Second) of Torts Sec. 402A comment k (1965). Lederle also contends that the jury's rejection of Toner's strict liability claim necessarily is a conclusion that any defect in the product was unavoidable, which, at least on the facts of this case, is fatally inconsistent with a finding that Lederle was negligent in its manufacture or distribution. We examine these arguments in light of Idaho's response to our certified questions.

The Idaho Supreme Court reformulated our certified questions as follows:

(1) Under Idaho law, do the principles set forth in Restatement (Second) of Torts Sec. 402A comment k (1965) apply to strict liability claims, and in particular to the claim in this suit?

(2)(a) Under Idaho law, do the principles set forth in Restatement (Second) of Torts Sec. 402A comment k apply to negligence claims, and in particular to the claim in this suit?

(b) If the above question no. (2)(a) is answered affirmatively, did the trial court's instructions on negligence sufficiently incorporate those principles?

732 P.2d at 303. The answers to these questions suffice to dispose of the first issue raised by Lederle, the sufficiency of the negligence instructions; and guide us further in the determination whether the jury verdicts are inconsistent. We conclude the jury instructions on negligence were sufficient under Idaho law and that the jury's special verdicts were not inconsistent.

The opinion of the Idaho Supreme Court discloses that Idaho adheres to the "unavoidably unsafe product" defense, as set forth in comment k, in strict liability cases based on defective design. 732 P.2d at 308. The doctrine recognizes that some products pose inherent risks, but that the benefits outweigh the risks inherent in their intended use, so that strict liability will not be imposed. Under Idaho law, as in most states, however, the plaintiff may proceed under a negligence cause of action even if comment k provides a defense to strict liability. Id. at 303 n. 5, 309-10. Quoting a decision of the Washington Supreme Court, the Idaho court in the case before us states that "[n]egligence and strict liability are not mutually exclusive because they differ in focus: negligence focuses upon the conduct of the manufacturer while strict liability focuses upon the product and the consumer's expectation." Id. at 303 n. 5 (quoting David v. Globe Mach. Mfg. Co. 102 Wash.2d 68, 684 P.2d 692, 696 (1984)).

The court also tells us that analysis under comment k is similar to negligence analysis in a general sense:

under negligence analysis, the utility of the act depends upon the value of the interest advanced, the extent to which it is advanced, and the opportunity for a less dangerous course of conduct, Restatement (Second) of Torts Sec. 292 (1965), just as comment k's application depends on the value of the product's benefit, the extent to which the benefit accrues, and the availability of a feasible alternative design. The risks too are similarly considered by comment k and negligence law. See Restatement (Second) of Torts Sec. 293 (1965). Such a weighing is implicit in the duty to use due care to avoid injuries while rendering services. Stephens v. Stearns, 106 Idaho 249, 257, 678 P.2d 41, 49 (1984). In sum, the determination under comment k that the design of a product is unavoidably unsafe and yet affords benefits outweighing its risks varies little from the determination under negligence law that the designing and marketing of the product was reasonably done.

732 P.2d at 310-11. The opinion states in summary that the jury instructions on negligence adequately enabled the jury to consider all the relevant factors. Id. at 311-12.

The decision of the Idaho Supreme Court allows us to hold with confidence that the jury's determination of negligence was reached in accordance with Idaho law and that Lederle is not entitled to judgment on the negligence issue. The instruction on negligence permitted the jury to assess the reasonableness of Lederle's conduct "in light of all the attendant circumstances," Id. at 312, among which were the state of scientific knowledge and the utility of the Tri-Immunol vaccine in light of alternatives known by Lederle to be available. The concern we expressed in our prior opinion, that "the trial court may have omitted a material element of negligence in failing to instruct the jury to decide whether Tri-Immunol was an unavoidably unsafe product," 779 F.2d at 1432, has been allayed.

We turn to the issue of whether the jury's special verdicts are fatally inconsistent. We are bound to find the special verdicts consistent if we can do so under a fair reading of them. Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963); Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962); Blanton v. Mobil Oil Corp., 721 F.2d 1207, 1213 (9th Cir.1983), cert. denied, 471 U.S. 1007, 105 S.Ct. 1874, 85 L.Ed.2d 166 (1985). When faced with a claim that verdicts are inconsistent, the court must search for a reasonable way to read the verdicts as expressing a coherent view of the case, and must exhaust this effort before it is free to disregard the jury's verdict and remand the case for a new trial. Gallick, 372 U.S. at 119, 83 S.Ct. at 666. The consistency of the jury verdicts must be considered in light of the judge's instructions to the jury. Id. at 120-21, 83 S.Ct. at 666-67; Bates v. Jean, 745 F.2d 1146, 1151 (7th Cir.1984).

The crux of the inconsistency issue is whether the jury could have found that Lederle was not strictly liable on the ground that Tri-Immunol was an unavoidably unsafe product, but also found that Lederle was negligent in failing to develop the Tri-Solgen vaccine. A similar inconsistency is alleged to exist between the negligence verdict...