O.L. Mauldin v. The Upjohn Company

697 F.2d 644, 12 Fed. R. Serv. 485, 1983 U.S. App. LEXIS 30716
CourtCourt of Appeals for the Fifth Circuit
DecidedFebruary 7, 1983
Docket81-3209
StatusPublished
Cited by24 cases

This text of 697 F.2d 644 (O.L. Mauldin v. The Upjohn Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O.L. Mauldin v. The Upjohn Company, 697 F.2d 644, 12 Fed. R. Serv. 485, 1983 U.S. App. LEXIS 30716 (5th Cir. 1983).

Opinion

POLITZ, Circuit Judge:

In this product liability diversity case, the Upjohn Company, manufacturer of the antibiotics Lincocin and Cleocin, 1 appeals an adverse verdict in favor of plaintiff O.L. Mauldin, contending that: (1) Mauldin failed to establish a causal link between the drugs and his condition, (2) Mauldin failed to establish the inadequacy of the manufacturer’s warnings, (3) the trial judge ruled erroneously on evidentiary matters, and (4) the judge erred in her jury charge. Finding no reversible error, we affirm.

Facts

Mauldin severely injured his hand in March 1974 while working on a lake barge. He was treated by Dr. Herman E. Walker, Jr., who prescribed Lincocin as a guard against infection. When Dr. Walker released Mauldin from the hospital, he prescribed Cleocin as a continuing prophylaxis against infection. Mauldin was scheduled for a follow-up examination in three weeks.

Shortly after leaving the hospital, Maul-din began to suffer from a tenacious bout of diarrhea. He was treated by several physicians, one of whom prescribed the drug Lomotil, but his condition worsened and he was readmitted to the hospital. Mauldin’s physical condition continued to deteriorate, and he was ultimately subjected to multiple and extensive surgical procedures made necessary by ulcerative colitis. The period of hospitalization exceeded two months.

This tort action began in state court, was removed to federal court and initially ended in a mistrial. On retrial the jury returned a *646 verdict for $570,000, grounding liability on a finding that Upjohn had failed to warn adequately of the risk of pseudomembranous colitis posed by the two drugs. The instant appeal follows the denial of the motion for judgment n.o.v. or new trial.

Causation

Upjohn challenges causation on two grounds. It first contends that Maul-din failed to offer any direct medical evidence that either Lincocin or Cleocin probably caused his colitis. In response we note that failure to produce direct medical evidence is not fatal, for as we observed in Porter v. American Optical Corp., 641 F.2d 1128, 1142 (5th Cir.1981), a products liability case involving Louisiana law, “The plaintiff’s burden is to prove causation by a preponderance of the evidence, which may be met by direct or circumstantial evidence.” In a case of circumstantial evidence, Upjohn maintains that Mauldin must exclude all other reasonable hypotheses of causation if he is to prevail based on such evidence. We disagree. Mauldin does not bear that onerous burden; his “evidence need not negate all other possible causes.” Id. (citing Weber v. Fidelity & Casualty Ins. Co. of New York, 259 La. 599, 250 So.2d 754 (1971), and Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971)). The record contains circumstantial evidence that either Lincocin or Cleocin caused Mauldin’s disorder sufficient to require submission of that question to the jury.

Upjohn’s second challenge to causation relates to the warnings. Essentially, Maul-din complained that the warnings 2 on the package inserts did not adequately inform his physician of possible adverse reactions to the two antibiotics. Because of this failure, Mauldin contended that Upjohn is liable for the damages caused by his adverse reaction to the drugs.

In its defense to these contentions, Upjohn refers to the testimony of Dr. Walker, the prescribing physician, which indicates that he would have prescribed the medications, despite stronger warnings, because of the danger of infection and the reputation of the drugs. Upjohn argues that Dr. Walker’s testimony establishes that any failure on its part to warn adequately of potential side effects of the medications was not causally related to the later tragic events. 3 Upjohn maintains that Dr. Walker’s testimony severs the causal chain.

This argument is appealing but not compelling for Dr. Walker also testified that the regimen he would have followed would have differed if he had been made aware of the severity of the side effects and of the suggested treatment of the induced diarrhea. 4

*647 The manufacturer of a prescription drug is not obliged to warn each consumer of the dangers inherent in the use of its product if the prescribing physician receives adequate warnings of the potential adverse effects. See Givens v. Lederle, 556 F.2d 1341 (5th Cir.1977); Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974). Upjohn contends that its warning, see note 2, was sufficient to alert Dr. Walker of the potentially dangerous side effects of Cleocin and Lincocin. Although the contention has force, we are not convinced that it must be accepted as a matter of law. Rather, in the factual panorama presented by this case, the contention poses a jury question.

In Timm v. Upjohn Co., 624 F.2d 536, 539 (5th Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 921, 66 L.Ed.2d 840 (1981), a case also involving Cleocin, we concluded that in deciding whether the identical warning was sufficient, “The jury was entitled to weigh the conflicting statements made by [the prescribing doctor] and the other physicians along with all the other evidence presented in the case.” The instant case poses the same question. The jury heard and was called upon to evaluate Dr. Walker’s testimony as to what he understood the warnings to be and how he might have acted differently if he had been warned or advised differently. In addition to the testi-

mony that he probably would have prescribed the drugs regardless of the more detailed warning, there is further testimony about potential monitoring and cautionary advice to Mauldin and the impact of the failure to list any remedies or antidotes for adverse reactions. The evidence presented dictates neither an affirmative nor a negative answer to the inquiry whether Dr. Walker would have acted differently if the warnings had been different. Instead, the evidence presents the classic question for the trier of fact—in this instance the jury.

Inadequate Warnings

To establish his challenge to the inadequacy of the warnings for Lincocin and Cleocin in the package inserts and in Physician’s Desk Reference, Mauldin offered the testimony of Dr. Walker as well as that of Dr. Gordon McHardy, an internist specializing in gastroenterology. Dr.

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Bluebook (online)
697 F.2d 644, 12 Fed. R. Serv. 485, 1983 U.S. App. LEXIS 30716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ol-mauldin-v-the-upjohn-company-ca5-1983.