(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 8, 1997 -- Decided October 28, 1997
PER CURIAM
The Supreme Court consolidated these cases for the purpose of its disposition of the issues raised on
appeal. These cases involve claims for teeth staining from ingestion of the drug tetracycline, an antibiotic
prescribed for the treatment of upper respiratory infections.
The London matter was tried first. Cathy London was born in 1957. As a child, London was
prescribed by her physician, Robert Pierce, M.D., various brands of tetracycline for the treatment of upper
respiratory infections. Dr. Pierce prescribed tetracycline on fourteen different occasions from January 8,
1958 through September 4, 1964. He specifically prescribed tetracycline manufactured by Lederle on eleven
occasions.
The ingestion of tetracycline drugs, particularly from birth through eight years of age, can result in
the staining and discoloration of bones and teeth. London's teeth have staining that is generally associated
with the use of tetracycline drugs. At trial, London testified that the discoloration of her teeth caused her to
become shy, withdrawn and extremely self-conscious about smiling. London testified that she wanted to have
her teeth capped but could not afford to do so on her low wages. Although London is college educated and
had considered a teaching career, she rejected the idea because of her shyness.
At the conclusion of trial, the jury was presented with twelve special interrogatories on which to base
their verdict. The jury found that Lederle knew of the tooth-staining effect of tetracycline by about 1958 or
1959; the ingestion of tetracycline was the substantial factor in the staining of London's teeth; and fifty
percent of the staining was caused by Lederle. Based on the jury's answers to the special interrogatories,
the trial court molded the verdict and entered judgment in London's favor for $43,200 for dental expenses
and $7500 for pain, suffering and emotional distress. The jury found that London was not entitled to collect
punitive damages against Lederle.
Lederle appealed the amount of the judgment, arguing that it was entitled to a judgment
notwithstanding the verdict. London cross-appealed, seeking additur or, in the alternative, a new trial for
compensatory damages and a new trial for punitive damages. The Appellate Division found that a new trial
on certain limited issues was warranted. The court reasoned that due to certain unartfully drafted
interrogatory questions, specifically interrogatories nine and four, the jury never rendered a verdict on the
issue of whether the absence of a warning from Lederle was the proximate cause of London's stained teeth.
The Appellate Division also held that the fifty percent reduction in the verdict was inconsistent with
the jury's answers to other interrogatories and may have resulted from either the jury's misunderstanding or
disregard of the trial court's charge or from the ambiguity of the special interrogatory.
On the question of additur, the Appellate Division found that the verdict was not so shockingly inadequate as to satisfy the additur or new trial standards. Lastly, the court held that the trial judge incorrectly combined the compensatory and punitive damage aspects at trial. Punitive damages are to be bifurcated from compensatory damages, pursuant to Herman v. Sunshine Chemical Specialties, Inc. Although finding the combined aspects alone not reversible error, the Appellate Division held that London
was unable to fully present her proofs on punitive damages during the liability and compensatory phase of
the trial. As such, she was forced to base her punitive damage claim on limited proofs. Thus, the jury was
not given the necessary tools to properly evaluate the punitive damage claim.
The Appellate Division remanded for a new trial, limited to the issues of: 1) whether Lederle's
failure to warn was a proximate cause of London's injuries, and if the jury so determines; 2) how
compensatory damages should be allocated; and 3) applying the procedures enunciated in Herman, along
with the appropriate jury instructions, whether punitive damages are to be awarded to London. The
Appellate Division let stand the balance of the jury's findings.
In Batson, Lederle appealed to the Appellate Division from a trial court order granting the
application of the principle of offensive collateral estoppel as to factual findings made in London. Collateral
estoppel permits one who is not a party to an action involving a common defendant or plaintiff to use a
finding of fact from that action to preclude relitigation of the issue in the pending case. Noreen London
Batson, Cathy London's sister, was born in 1955. She was prescribed tetracycline by Dr. Pierce during the
years 1957 through 1961. Since the same doctor prescribed the tetracycline, many of the issues presented in
London are duplicated in Batson.
The Appellate Division found that facts litigated in Feldman v. Lederle Laboratories concerning
when Lederle knew of the dangers of tetracycline should not have collateral estoppel effect because the
information disclosed in London previously had been unavailable in Feldman. In addition, the Appellate
Division did not consider the findings in Feldman as to Lederle's knowledge inconsistent with the findings in
London. The Appellate Division also held that Batson's failure to join her sister's litigation does not
preclude the invocation of offensive collateral estoppel in her trial. Because of the common issues and
parties, the court consolidated the two matters for trial on remand.
The Supreme Court granted certification in both Batson and London.
HELD: Due to the improper wording of the interrogatories submitted to the jury in London, the verdict
lacked a finding of proximate cause. In addition, the compensatory damages verdict was inconsistent
with other interrogatory responses. Furthermore, the jury instructions did not adequately guide the
jury's consideration of punitive damages. Therefore, to avoid a miscarriage of justice under the law,
a new trial on all issues is warranted. Batson and London will be consolidated for the purposes of
trial on remand.
1. A new trial is warranted. However, restricting the scope of the new trial to punitive damages, proximate
cause, and the allocation of compensatory damages will artificially and unrealistically restrict the jury's fact-finding role. Thus, the new trial should be on all issues. (p. 3)
2. Because the Court orders a new trial on all issues in London, and because these two matters are to be
consolidated for trial, the issue of whether offensive collateral estoppel should be applied is now moot.
(p. 4)
As MODIFIED, the judgment in London is AFFIRMED. That part of the judgment in Batson that
required joint trials is MODIFIED and AFFIRMED. In view of that modification, the remainder of the
judgment in Batson becomes MOOT. Both cases are REMANDED to the Law Division to conduct a
consolidated trial on all issues.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI,
STEIN and COLEMAN join in this PER CURIAM opinion.
SUPREME COURT OF NEW JERSEY
A-3/
4 September Term 1997
NOREEN LONDON BATSON,
Plaintiff-Respondent,
v. (A-3)
LEDERLE LABORATORIES, a Division of
American Cyanamid Company, a Maine
Corporation doing business in the
State of New Jersey,
Defendant-Appellant.
CATHY A. LONDON,
Plaintiff-Respondent,
v. (A-4)
LEDERLE LABORATORIES, a Division of
American Cyanamid Company, a Maine
Corporation doing business in the
State of New Jersey,
Defendant-Appellant,
and
PFIZER, INC.; and BRISTOL-MYERS
SQUIBB COMPANY, known formerly as
E.R. SQUIBB & SONS, INC.,
Defendants.
Argued September 8, 1997 -- Decided October 28, 1997
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
290 N.J. Super. 49 (1996) (Batson v.
Lederle Laboratories).
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
290 N.J. Super. 318 (1996) (London v.
Lederle Laboratories).
Kevin R. Jespersen argued the cause for
appellant Lederle Laboratories (A-4)
(Slattery McElwee & Jespersen, attorneys).
William C. Slattery argued the cause for
appellant Lederle Laboratories (A-3)
(Slattery, McElwee & Jespersen, attorneys).
James I. Peck, IV, argued the cause for
respondents Noreen London Batson and Cathy A.
London.
PER CURIAM
These cases involve claims for teeth staining from the
ingestion of tetracycline, an antibiotic prescribed for the
treatment of upper respiratory tract infections. This Court has
previously articulated the controlling principles regarding the
liability of drug manufacturers in failure to warn causes of
action involving tooth discoloration caused by ingestion of
tetracycline. See, e.g., Savage v. Old Bridge-Sayreville Med.
Group,
134 N.J. 241 (1993); Feldman v. Lederle Lab.,
132 N.J. 339
(1993); Apgar v. Lederle Lab.,
123 N.J. 450 (1991).
The facts in plaintiff London's case have been clearly
stated by the Appellate Division in its published opinion.
290 N.J. Super. 318, 321-26 (1996). Based on special interrogatories
submitted to the jury, the trial court molded a verdict and
entered judgment in London's favor for $43,200 for dental
expenses and $7,500 for pain, suffering, and emotional distress.
The jury found that London was not entitled to collect punitive
damages.
On appeal, Lederle argued that it was entitled to judgment
notwithstanding the verdict. London, in her cross-appeal, sought
an additur, or in the alternative, a new trial for compensatory
damages, and a new trial for punitive damages. The Appellate
Division held:
The matter must be remanded for a new trial
on the issues of (1) whether defendant's
failure to warn was a proximate cause of
plaintiff's injuries, and if the jury so
determines, (2) how the compensatory damages
should be allocated, and (3), applying the
procedures dictated by Herman v. Sunshine
Chemical Specialties, Inc., [
133 N.J. 329
(1993)], and the appropriate jury
instructions, whether punitive damages are to
be awarded to plaintiff. The balance of the
jury's findings shall stand and be
incorporated in the new judgment, if any,
against defendant. As we have noted in the
companion case of Batson v. Lederle
Laboratories, the two cases are to be
consolidated for the trial in Batson and the
retrial of this case.
[London, supra, 290 N.J. Super. at 335-36.]
We granted Lederle's petition for certification.
147 N.J. 261
(1996).
We agree that a new trial is warranted substantially for the
reasons expressed by the Appellate Division. We differ, however,
regarding the scope of the new trial. By restricting the scope
of the new trial to punitive damages, proximate cause, and the
allocation of compensatory damages, the jury's fact finding role
will artificially and unrealistically be restricted. To avoid a
“miscarriage of justice under the law,” we direct that a new
trial on all issues be conducted. Dolson v. Anastasia,
55 N.J. 2, 7 (1969); R. 4:49-1(a).
In the companion case of Batson v. Lederle, reported at
290 N.J. Super. 49 (1996), the Appellate Division concluded that
based on the doctrine of affirmative collateral estoppel, the
jury's finding in London, that Lederle had actual or constructive
knowledge in 1958-1959 of the tooth staining effect of
tetracycline and its failure to issue an appropriate and timely
warning, should be controlling in Batson. Id. at 55-56. Because
we have ordered a new trial on all issues in London, and because
we agree with the Appellate Division that under the circumstances
the two trials should be consolidated pursuant to Rule 4:38-1(a),
the issue whether estoppel should be applied is now moot. In
light of our holding, we do not address the precedential value of
the Batson decision.
As modified, the judgment in London is affirmed. That part
of the judgment in Batson that required joint trials is modified
and affirmed. In view of that modification, the remainder of the
judgment in Batson becomes moot. Both cases are remanded to the
Law Division to conduct a consolidated trial on all issues.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this PER CURIAM opinion.
NO. A-3 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
NOREEN LONDON BATSON,
Plaintiff-Respondent,
v.
LEDERLE LABORATORIES, a Division of
American Cyanamid Company, a Maine
Corporation doing business in the
State of New Jersey,
Defendant-Appellant.
DECIDED October 28, 1997
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY
NO. A-4 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
CATHY A. LONDON,
Plaintiff-Respondent,
v.
LEDERLE LABORATORIES, a Division of
American Cyanamid Company, a Maine
Corporation doing business in the
State of New Jersey,
Defendant-Appellant,
and
PFIZER, INC.; and BRISTOL-MYERS
SQUIBB COMPANY, known formerly as
E.R. SQUIBB & SONS, INC.,
Defendants.
DECIDED October 28, 1997
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY