Opinion
Rehearing Denied April 17, 1972.
Opinion on pages 208 to 214 omitted
HEARING GRANTED
For Opinion on Hearing, see 107 Cal.Rptr. 45, 507 P.2d 653.
[101 Cal.Rptr. 65]Harney, Ford & Schlottman, David M. Harney, Robert L. Charbonneau and Robert E. Ford, Los Angeles, for appellants and respondents Stevens.
Gibson, Dunn & Crutcher by G. Edward Fitzgerald, Los Angeles, for appellant and respondent Parke Davis & Co.
Ball, Hunt, Hart, Brown & Baerwitz by George C. McCarthy, Long Beach, for respondent A. J. Beland, M.D.
ROTH, Presiding Justice.
A jury awarded $400,000 to plaintiffs, husband and children of decedent Phyllis Stevens, against Parke Davis & Co., the manufacturer of the drug chloromycetin and Dr. Arthur J. Beland, the physician who prescribed the drug which it found caused the death of Mrs. Stevens. Parke Davis' motion for a judgment notwithstanding the verdict wasenied. The court, however, on a motion for a new trial found that the damages were excessive [101 Cal.Rptr. 66] and ordered a new trial unless plaintiffs consented to a reduction of damages to $60,000 general and $4,672.42 special. Plaintiffs declined.
Parke Davis appeals from the judgment. Plaintiffs appeal from the order granting a new trial on the issue of damages.
It is conceded that the cause of Mrs. Stevens' dealth was aplastic anemia brought about by chloromycetin (trade name for chloramphenicol), a wide spectrum antibiotic administered upon Dr. Beland's successive prescriptions following complictions arising from a series of operations (partial lobectomies) performed by Dr. Beland. Dr. Beland filed no brief in support of his appeal from the judgment adverse to him, but he does contest plaintiffs' appeal from the order granting a new trial on the issue of damages.
In granting the motion for a new trial on the issue of damages, the trial judge stated:
'However, the law does allow a monetary compensation for the loss of society, companionship, comfort, and services to the decedent. So that we come down to a question of 'What is a reasonable amount that could be allowed under these circumstances?' Now, I will state this for the record, that I would have given a verdict for the plaintiffs in this case. However, I am certain that my judgment would be a great deal less than was awarded in this case, and I have thought over time and time again, if this had been just an ordinary automobile accident and the same death and the same family circumstances, I am quite sure that the jury would not have come anywhere near the amount of the award that they made in this case, which leads only to the conclusion that this was a feeling of passion and prejudice and an element of the punitiveness in their damage which arose primarily from the showing of a tremendous amount of money that was made in the sale of this product. * * *
'We have a situation that is the death of a housewife with three children and a husband. We had very meager evidence with regard to an earning capacity based upon the obtaining of a temporary teacher's certificate, and the argument made that she could and would have been a school teacher and capable of earning--I think the assertion is $5,000 a year. I am inclined to the opinion that whether or not she would have earned anything like that in the future was highly conjectural, that the evidence would not sustain a finding to the effect that that was established with reasonable certainty."
The foregoing complies with the requirements of Code of Civil Procedure, section 657. (See Mercer v. Perez, 68 Cal.2d 104, 65 Cal.Rptr. 315, 436 P.2d 315.) It is basic that in the absence of an abuse of discretion such an order will not be disturbed. (Doyle v. Hamren, 246 Cal.App.2d 733, 739, 55 Cal.Rptr. 84.) The court's order, based in part on the vague showing in respect of decedent's earning power and primarily on passion and prejudice equating with the desire of the jury to punish and resulting in a verdict far in excess of what would have been reasonable and just, was an appropriate exercise of its discretion.
We conclude further that the evidence does not support the verdict and the judgment against Parke Davis.
Some evidence discussed infra was presented by plaintiffs purporting to show that chloromycetin was negligently overpromoted by Parke Davis. Conceding arguendo that there was ubstantial evidence of overpromotion, the test of Parke Davis' liability would be that if Dr. Beland's prescription of the drug was '* * * not caused by over-promotion of Parke-Davis then, however negligent such over-promotion may have been, Parke-Davis could not be held liable. Its negligence would not have been an inducing, or proximate, cause of the resulting injuries. [Dr. Beland's] negligence would have been an intervening, independent, and solely proximate cause [citation].' (Love v. Wolf, 226 Cal.App.2d 378, at 399-400, 38 Cal.Rptr. 183, at 196.) Wolf is on all fours with the case at [101 Cal.Rptr. 67] bench. The drug involved was chloromycetin. The manufacturer was Parke Davis and the issues were in relevant part identical.
It is apparent therefore that we must examine the record to see whether the proof adduced at trial on the issue of Parke Davis' liability was sufficient to raise a reasonable inference that it negligently overpromoted the drug and if there was such negligence, whether the negligent overpromotion was the proximate or a concurring proximate cause of the death of Mrs. Stevens for which plaintiffs seek damages. (Love v. Wolf, supra, 226 Cal.App.2d at 400, 38 Cal.Rptr. 183; Spencer v. Beatty Safway Scaffold Co., 141 Cal.App.2d 875, 882, 297 P.2d 746.)
Chloromycetin is and has been sold under the warning label the content of which is fixed at the direction, and which is subject to the approval of the Food and Drug Administration of the United States. The content of the label under which chloromycetin was sold was fixed in 1961, and was concededly unequivocal in its terms.
'WARNING Serious and even fatal blood dyscrasias (aplastic anemia, hypoplastic anemia, thrombocytopenia, granulocytopenia) are known to occur after the administration of chloramphenicol. Blood dyscrasias have occurred after short term and with prolonged therapy with this drug. Bearing in mind the possibility that such reactions may occur, chloramphenicol should be used only for serious infections caused by organisms that are susceptible to its antibacterial effects. Chloramphenicol should not be used when other less potentially dangerous agents will be effective, or in the treatment of trivial infections such as colds, influenza, viral infections of the throat, or as a prophylactie agent.
Dr. Beland testified under examination by plaintiffs that: he had been aware of the deleterious effects of the drug for seven to nine years prior to 1964; he knew then (1964) that the prolonged use of the drug was dangerous and that it could cause aplastic anemia; in 1964 when he prescribed the drug he was aware of the contents of the warning label itself; and that he knew (in 1964) that the drug should only be used when there were no other less dangerous drugs that could be used as substitutes.
Plaintiffs' evidence, consisting in the main of the testimony of various medical doctors, was persuasive on the issue that chloromycetin was extremely dangerous and was prescribed too lightly by the medical profession in general. Additionally, there was medical testimony to the effect that the drug should not have been prescribed to Mrs. Stevens by Dr. Beland. [101 Cal.Rptr. 68] There is, however, no evidence whatsoever which would show, or from which one could reasonably infer, that in the case at bench Dr. Beland's prescription of chloromycetin was induced or influenced by any overpromotion, wholly aside from negligent overpromotion of the drug by Parke Davis. Plaintiffs cryptically summarize Dr. Beland's testimony in their brief as follows:
'Dr. Beland testified he first started using Chloromycetin in 1950 or 1951. Dr. Beland started using the Physicians' Desk Reference when he started private practice in Long Beach in 1954. Dr. Beland has used Chloromycetin from 1950 continuously to 1964. Dr. Beland said he obtained information about Chloromycetin from medical articles, discussions with fellow physicians, pharmacists, and information which comes with the packaging of the drug. Dr. Beland stated that he has also spoken to drug salesmen from time to time from 1954 to 1964, although he has no specific recollections of speaking to a salesman from Parke, Davis.'
Plaintiffs argue that the jury by its verdict showed that it disbelieved the testimony of Dr. Beland. If that is indeed the case, the verdict against Parke Davis must rest essentially on the latter's negligent, overpromotional campaign, and on the testimony of certain doctors that the drug was generally being erroneously prescribed as the result of that negligent promotional effort. There is no testimony to which our attention has been invited which would serve to show that Dr. Beland prescribed the drug because of a negligent or any advertising campaign of Parke Davis.
One doctor testified in essence in the face of and over numerous objections that he was 'confident' that the promotion of the drug by Parke Davis 'played a role' in the unwise use of chloromycetin by the medical profession in general. This type of testimony of a state of mind of a witness or his opinion on how a few unnamed members of the medical profession exercise their judgment or exercise no judgment in the prescription of chloromycetin, is conclusional hearsay. It is not legal proof of a fact. (Evid.Code, § 600(b); Sanchez v. Rodriguez, 226 Cal.App.2d 439, 442, 38 Cal.Rptr. 110; Hamilton v. Pac. Elec. Ry. Co., 12 Cal.2d 598, 602, 86 P.2d 829.)
This case does not present an uncontradicted set of facts from which conflicting inferences may be drawn, in which event we would be bound to rely on those inferences which support the judgment. (Hamilton, supra, at p. 602, 86 P.2d 829; see generally, 6 Witkin, California Procedure (1971), p. 4245.) The evidence adduced by the plaintiffs on the issue whether Dr. Beland prescribed the drug as a result of the promotional campaign was, insofar as there was any testimony which could create a conflict with Dr. Beland's clear admissions, of his knowledge of the dangers inherent in the drug. It is our duty to decide whether such testimony is 'reasonable in nature, credible, and of solid value,' whether it is "substantial' proof of the essentials which the law requires in a particular case.' (Estate of Teed, 112 Cal.App.2d 638, 644, 247 P.2d 54, 58.) We cannot accept the conclusional hearsay testimony relied upon by plaintiffs as being of ponderable legal significance. There is no evidence, except the vaguest kind of conclusional hearsay, which, at best, remotely squints at a suggestion that Dr. Beland prescribed the drug because of Parke Davis advertisements, negligently or otherwise made. In reality, plaintiffs base their contention of a concurrent inducing cause on the vague and tendentious inference that some members of the medical profession did not exercise independent and professional judgment but relied on Parke Davis' advertising. Inference and innuendo drawn with alleged logic from conclusional hearsay is not probative evidence and does not approach 'solid,' 'credible' and 'substantial evidence.'
We conclude that there is no evidence which supports a judgment against Parke Davis.
[101 Cal.Rptr. 69]The judgment against Parke Davis is reversed with directions to the trial court to enter judgment in its favor.
The order granting the motion for a new trial to Dr. Beland is affirmed.
Appellants or respondents Stevens, et al. to bear costs.
FLEMING and COMPTON, JJ., concur.
'Precautions: It is essential that adequate blood studies be made during treatment with the drug. While blood studies may detect early peripheral blood changes, such as leukopenia or granulocytopenia, before they become irreversible, such studies cannot be relied upon to detect bone marrow depression prior to development of aplastic anemia.'
The excerpt above should be compared with the evidence in Wolf and the label used by the manufacturer in the Wolf litigation, and it should be noted that much of the criticisms of an earlier label introduced in Wolf have been eliminated at bench. Specifically, too, the testimony of the prescribing doctor in Wolf left some doubt as to whether he, in treating the infection there involved, considered and relied upon it because he was treating one of '* * * potentially dangerous infections of a type for which Parke-Davis inferentially had recommended use of the drug' (Wolf, 226 Cal.App.2d p. 400. 38 Cal.Rptr. p. 106) referring to the quoted statement and other evidence of exaggeration by detail men and in advertising the court, in Wolf said on this issue: 'We, therefore, must not only accept this evidence as sufficient to establish that chloromycetin was an extremely toxic agent which did cause Mrs. Love's anemia, but also we must accept the evidence leading to justifiable inferences that Parke-Davis, believing otherwise, had watered down its regulations-required warnings and had caused its detail men to promote a wider use of the drug by physicians than proper medical practice justified.' (p. 402, 38 Cal.Rptr. p. 197.) (Emphasis added.)
There is no such evidence in the record before us and on the facts at bench, particularly in view of the unequivocal evidence of Dr. Beland, lwe have no such issue in this case.