Bachynsky v. State

747 S.W.2d 868, 1988 Tex. App. LEXIS 844, 1988 WL 33331
Court of Appeals of Texas·Decided March 3, 1988·No. 05-86-00699-CV·Published·Cited by 10 cases

Opinions

HECHT, Justice.

The State of Texas sued Dr. Nicholas Bachynsky and five related weight-loss clinics (collectively “Bachynsky”). The gravamen of the State’s allegations is that Bachynsky used the drug Dinitrophenol (“DNP”) in his weight-loss programs even though it is a toxic herbicide never approved by the United States Food and Drug Administration as safe for human consumption. The State alleges violations of the Texas Deceptive Trade Practices— Consumer Protection Act1 and the Texas Food, Drug and Cosmetics Act.2 The State also alleges that Bachynsky was negligent in prescribing DNP for his patients. The jury found in favor of the State on all three theories and assessed statutory civil penalties against Bachynsky, which the district court awarded in its judgment. The district court also granted the State injunctive relief, attorney’s fees and costs.

We hold that the State cannot assert a parens patriae cause of action for negligence, at least in the context of this case, and that presentation of this claim probably confused and misled the jury. Accordingly, we reverse the judgment of the district court and remand the case for further proceedings. We further hold that the district court erred in admitting, over Bachyn-sky’s objection, certain irrelevant and unfairly prejudicial evidence.3

I

A state may sue parens patriae, as “parent of the country”, to protect a quasi-sovereign interest, including an “interest in the health and well-being — both physical and economic — of its residents in general.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982). As the cases cited in Snapp reflect, various causes of action may be asserted parens patriae — environmental pollution, public nuisance, trade barriers, [870] antitrust violations, employment discrimination — but the nature of the relief sought is almost always the same: injunctive or equitable. This is true of Snapp and all the examples it cites, as well as all the cases from our own jurisdiction cited by the State in its brief.4 Parens patriae actions for damages have been allowed in only a few cases involving claims for pollution cleanup and destruction of natural resources,5 and occasionally small overcharges against the entire populace of the state 6 and restitution for consumer fraud.7

The injunctive relief the State seeks in the present case is typical of parens patri-ae cases. Although the State’s pleadings do claim damages and restitution on behalf of any of its citizens injured by Bachyn-sky’s acts, the State abandoned all damage claims by not requesting a jury finding or judgment on them.8 The State argues that its negligence cause of action entitles it, not to money damages, but to the same injunctive relief claim by its statutory actions:

In addition to the standing conferred by the DTPA and the Food and Drug Act to halt appellants’ illegal practices, the State has parens patriae standing to seek an injunction prohibiting the appellants from engaging in what amounts to assembly-line malpractice.

Proving negligence would not entitle the State to the injunctive relief it seeks. Only in a most extraordinary situation — and we know of no reported decision involving one — could entitlement to injunc-tive relief be premised upon a finding of negligence. The reason is that equity need not intervene in negligence actions in which full relief is afforded by law through damages. The State in this case, fully authorized to obtain all the relief it seeks by the statutes it claims Bachynsky violated, cannot have redress against Bachynsky upon any claim of negligence.9

Nevertheless, the district court allowed the State to offer proof that Bachynsky [871] was negligent, including manner of treatment, dosages prescribed, and reactions of patients. Little if any of this evidence would have been admissible under either of the State’s other two causes of action. For the State to use a negligence claim to cast this case not only a dangerous drug and consumer fraud case but also a malpractice case, accusing Bachynsky of wrongs for which it could not recover, was highly prejudicial.

The district court submitted issues to the jury inquiring whether any negligence of Bachynsky in using DNP proximately caused injury to his patients. The jury answered affirmatively. Because the State had no cause of action for negligence, the district court erred in submitting these issues to the jury, and that error harmed Bachynsky.

The improper submission of issues constitutes reversible error when harm is suffered by the complaining party. Whether harm has been suffered may be considered in light of the charge as a whole_ Generally, error in the submission of an issue is harmless when the findings of the jury in answer to other issues are sufficient to support the judgment. ... An exception exists, however, when the erroneously submitted issue confuses or misleads the jury....

Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 749-750 (Tex.1980). The State confused and misled the jury into thinking that this case was one of malpractice. The judgment against Bachynsky must therefore be reversed.

II

In an advertising brochure, Bachyn-sky claimed that “there have been no fatalities associated with Mitcal ™ [i.e., DNP].” To prove this statement false, the State offered the testimony of Dr. Charles S. Petty that an autopsy on one David Barker established that he had died from an intentional overdose of DNP. The drug had been prescribed for him by Bachynsky. The State also offered a photograph of Barker’s corpse taken during the autopsy, ostensibly to show yellow stains on his hands indicating that he had handled DNP shortly before his death.

The relevance of this proof, the State argues, is to show that Bachynsky misrepresented that DNP is a safe and appropriate drug for use in a weight-loss program in violation of the DTPA. Admittedly, Ba-chynsky’s brochure does represent that DNP is a safe and appropriate drug for use in a weight-loss program. The brochure explains:

Are There Any Side Effects?
We only prescribe Mitcal™ for those patients that have tried “everything” but can’t seem to lose weight. You cannot take it if you are pregnant or have had a recent heart attack. The side effect is increased body heat. When your body starts burning off those excess calories, it gives off heat, and you may perspire more often. There have been no fatalities associated with Mitcal™.

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Bachynsky v. State, 747 S.W.2d 868, 1988 Tex. App. LEXIS 844, 1988 WL 33331 (Tex. Ct. App. 1988).

747 S.W.2d 868 (Bachynsky v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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