Travenol Laboratories, Inc. v. Bandy Laboratories, Inc.

• Citation: 608 S.W.2d 308
• Decision Date: 30 October 1980
• Docket Number: No. 6036,6036
• Parties: TRAVENOL LABORATORIES, INC. and Herndon Medical and Surgical Supply, Inc., Appellants, v. BANDY LABORATORIES, INC., Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 308

608 S.W.2d 308

TRAVENOL LABORATORIES, INC. and Herndon Medical and Surgical Supply, Inc., Appellants, v. BANDY LABORATORIES, INC., Appellee.

No. 6036.

Court of Civil Appeals of Texas, Waco.

Oct. 30, 1980.

Rehearing Denied Dec. 4, 1980.

Robert A. Gwinn and Charles L. Perry, Seay, Gwinn, Crawford, Mebus & Blakeney, Dallas, Hilton H. Howell, Naman, Howell, Smith, Lee & Muldrow, P. C., Waco, for appellants.

Charles B. McGregor and David B. Kultgen, Beard & Kultgen, Waco, for appellee.

HALL, Justice.

This is a suit for damages based upon bacterial contamination of three serials of rabies vaccine manufactured by plaintiff Bandy Laboratories, Inc. In the processing of the vaccine, plaintiff's employees used surgeon's gloves manufactured by defendant Travenol Laboratories, Inc., which were sold to plaintiff by defendant Herndon Medical and Surgical Supply, Inc. The gloves were marketed by Travenol and sold by Herndon in sealed packages labeled "Sterile Latex Surgeon's Gloves." Plaintiff asserted the cause of the contamination of its vaccine was microscopic holes in the gloves which permitted bacteria to pass from the hands of an employee into the vaccine during processing. Suit was brought on theories of negligence, products liability, warranty, and deceptive trade practices.

The case was tried to a jury in October, 1978. Plaintiff's motion for judgment based upon the verdict was granted, and judgment was rendered in November, 1978, awarding plaintiff $120,000.00 damages, and attorney's fees totaling $24,000.00. Defendants brought this appeal. We affirm the judgment.

The rabies vaccine produced by plaintiff was "caprine origin, killed virus type vaccine" produced from the brains of goats that had been infected with rabies virus. The rabies virus was transmitted to the goats by injection directly into the brains of the animals. A goat's head was shaved and the skin was painted with iodine. The skin was incised, and a hole was drilled through the skull with a trephine. Live rabies vaccine was then injected hypodermically into the brain through the hole in the skull. After the injection the opening in the skin and skull was again painted with iodine, but the hole was not plugged or covered in any way.

The infected goat was then returned to a holding pen until it developed rabies. When the goat exhibited symptoms of rabies, it was moved to a "downer pen." The goat was held in the downer pen until it was totally paralyzed and perilously near death. As the disease progressed, the animal gradually lost all motor control, staggering at first, and eventually becoming totally paralyzed. The animal also lost all control of its excretory functions and ended lying in animal waste in the downer pen with other infected goats. When the goat was totally paralyzed it was killed, and the virulent brain was removed, frozen, and stored for eventual processing into vaccine by plaintiff.

A "serial" of vaccine manufactured by plaintiff was the quantity made from approximately fourteen "lots" of brains which were "pooled" after processing for the purpose of necessary testing for release for use. The usual number of brains in a "lot" was nineteen. We are concerned here with plaintiff's three vaccine serials numbered 60, 61, and 62.

The processing of the vaccine in the laboratory began with the brains being unfrozen. In a machine which worked much like a kitchen blender, the thawed brains were liquefied and homogenized, and then mixed with a solution containing among other things measured quantities of the preservative "phenol" and the antibiotic "gentamicin." The ratio of brain material to the resulting solution was 40%. This solution was then heated for eight days. The addition of the preservative and the antibiotic and the heating were designed to inactivate and kill the rabies virus and any contaminants that might have been present in the 40% solution and render the solution sterile. Upon completion of the heating, a saline solution was added to the 40% solution, reducing the concentration of brain material to 20%. At this stage of the production the solution contained particles of brain material too large for passage through hypodermic syringes. This material was removed by filtering the 20% solution through a succession of progressively finer screens. The filtered material was delivered into a single steel tank where the lots were combined or pooled into an entire serial. Eventually, the serial was used to fill thousands of small vials called "doses." For example, serial 60 contained enough vaccine to provide at least 60,000 doses.

The bacterial contaminants in the serials in question were identified by an independent laboratory selected by plaintiff as "enterococci," bacteria native to human and animal feces, and "staphylococci epidermis," bacteria found on both human and animal skins. Travenol's laboratory, which tested only serial 60, identified the contaminant as only staphylococci epidermis.

The screening of the vaccine solution and the transfers of the solution from one container to another during the various stages of the processing were accomplished through the use of an instrument called an "Amacon pump." A hollow rod approximately three feet long attached to the pump was inserted into a filled container for withdrawal and transfer to another container. The only technician who handled these transfers was Mr. Andres Menchu. He testified that in order to steady and guide the rod as it was moved from one container to another, it was necessary for his gloved hand to touch portions of the rod which were wet with vaccine. It was plaintiff's contention that the vaccine was contaminated during these transfers. Plaintiff argued that the Travenol gloves worn by Menchu had microscopic holes in them which allowed bacteria from Menchu's hands to pass through the gloves onto the rod and into the vaccine solutions. Travenol and Herndon defended primarily on the theory that the bacterial contaminants originated in the squalid conditions of the downer pens; that the bacteria infiltrated the goats' brains through the open skull wounds; and that plaintiff's processing was unsuccessful in eliminating the contaminants.

Answering special issues numbered as follows, the jury made these findings:

1. (a) The defendant Travenol's label "Sterile Latex Surgeon's Gloves" on the packages of gloves constituted a warranty to plaintiff of benefits or characteristics the gloves did not have; and

(b) plaintiff relied upon the warranty.

2. (a) Defendants represented to plaintiff that the gloves in question were of a particular standard, quality or grade when they were not of said standard, quality or grade; and

(b) plaintiff relied upon such representation.

3. (a) The gloves in question were not fit for the ordinary purpose for which they were manufactured; and

(b) the sale of the gloves in such condition was a deceptive trade practice.

4. The sale of the gloves in question in their condition was an unconscionable action.

5. The condition of the gloves in question was unreasonably dangerous to the property of plaintiff.

6. Rabies vaccine made by plaintiff and handled by persons using the gloves in question became contaminated so as to be unsuitable for the use for which it was manufactured.

7. Defendant Travenol was guilty of acts or omissions constituting negligence in its manufacture and marketing of gloves in question used by plaintiff.

8. Such negligence was a proximate cause of the damages in question.

12. The defective condition of the gloves in question

(a) was a producing cause of the contamination of the vaccine; and

(b) adversely affected plaintiff; and

(c) was a proximate cause of the contamination of the vaccine.

15. and 16. Before this suit was filed, both defendants had written notice of plaintiff's complaint with respect to the gloves in question.

19. $40,000.00 would compensate plaintiff for its actual damages.

20. Plaintiff should be awarded $100,000.00 exemplary damages.

21. (a) Plaintiff should recover $16,000.00 attorney's fees for the trial of the case, and

(b), (c) and (d) additional attorney's fees totaling $8,000.00 in the event of appeals.

The jury failed to find (special issue 9) that plaintiff was guilty of acts or omissions constituting negligence during the production of the rabies vaccine in question, and failed to find (special issue 13) that plaintiff was guilty of acts or omissions which constituted a misuse of the gloves in question.

Plaintiff moved for judgment on the verdict for $120,000.00 damages (being the jury's award of $40,000.00, trebled), and for the attorney's fees found by the jury. This motion was based upon § 17.50(b)(1) of the Deceptive Trade Practices Act (V.T.C.A., Bus. & C. § 17.41 et seq.) which provided at the time pertinent to this lawsuit that an "adversely affected" consumer who prevailed in his cause of action under the Act was entitled to recover "three times the amount of actual damages" and attorney's fees. The motion was granted. Judgment was rendered awarding plaintiff recovery against the defendants of $120,000.00 damages, plus $24,000.00 attorney's fees, with provisions for appropriate reduction of the attorney's fees in the event the appeals for which they were awarded were not taken.

The judgment also awarded Herndon recovery against Travenol for any sum paid by Herndon to plaintiff in satisfaction of the judgment. This provision is not in question.

In alternative points, defendants assert the evidence is legally and factually insufficient to support any finding of causation against them.

The contamination was discovered when plaintiff was filling serial 60 into the final dose vials. Routine tests of stoppers used to seal the vials showed contamination. Further tests established that stoppers which were sterilized with steam and then handled with Travenol gloves showed contamination, but that stoppers from the same sterilized lot handled with sterile forceps tested...