Ramey v. Collagen Corp.

821 S.W.2d 208, 1991 WL 160439
CourtCourt of Appeals of Texas
DecidedSeptember 12, 1991
DocketC14-89-00765-CV
StatusPublished
Cited by10 cases

This text of 821 S.W.2d 208 (Ramey v. Collagen Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ramey v. Collagen Corp., 821 S.W.2d 208, 1991 WL 160439 (Tex. Ct. App. 1991).

Opinion

OPINION

SEARS, Justice.

This is an appeal from a take-nothing judgment in a products liability lawsuit. Appellant sued appellee, alleging that she sustained severe injuries as a result of using appellee’s Zyderm collagen product. After a lengthy jury trial, the jury found that appellee was negligent in failing to provide adequate warnings and instructions for the safe use of Zyderm but failed to find that such negligence was a proximate cause of appellant’s injuries. In two points of error appellant contends the jury’s failure to find that appellee’s negligence was a proximate cause of injury was (1) against the great weight and preponderance of the evidence, and (2) an irreconcilable conflict with the jury’s other findings. We affirm.

This products liability case involves Zy-derm collagen, an extract of cowhide. Zy-derm is injected under the skin to remove wrinkles, scars and other skin deformities. The package insert for Zyderm contained a precaution regarding use of the product “in patients with histories of atopic and allergic reactions to other substances” because such use had “been associated with allergic hypersensitivity reactions especially in patients with such histories.”

*210 Appellant received a test dose of Zyderm in July 1983 and did not suffer an adverse reaction. In October 1983 Zyderm was injected into appellant’s face. Shortly thereafter, appellant suffered severe abdominal cramping, headaches, facial swelling, flu-like symptoms, and urinary problems. She also developed redness and swelling around the injection sites.

Appellant saw a series of doctors and was initially diagnosed as suffering from systemic lupus erythematosus. She was later diagnosed as having dermatomyosi-tus, an autoimmune disease which causes skin and muscle inflammation.

The physician who administered the collagen injections, Dr. Jean Cukier, testified that he was aware that appellant suffered from many allergies, including an allergy to beef. He testified that appellant had been taking allergy shots for a number of years for food and inhalants. He also testified that he read the package insert for Zyderm and was aware of the precaution against use of the product in extremely allergic people.

The record also reflects that appellant received silicone breast implants in 1981. Subsequently, appellant suffered a fall which allegedly ruptured the right breast implant. That implant was subsequently removed because it allegedly was leaking. Dr. Cukier replaced the implant in July 1983, just prior to the administration of the collagen test dose. In 1987 Dr. Cukier replaced both breast implants.

In 1985 appellant filed this products liability lawsuit against appellee. At trial she argued that appellee specifically failed to contraindicate persons with beef allergy in the package insert for Zyderm. Several expert witnesses testified during the trial regarding the cause of appellant’s injuries. Appellant’s experts attributed her dermato-myositus to the Zyderm collagen injections while appellee’s experts attributed appellant’s complaints to other sources, including the silicone gel implants and allergy shots.

The jury found that appellee failed to provide Dr. Cukier with adequate warnings and instructions for the safe use of Zyderm and that such failure was negligence. The jury failed to find, however, that appellee’s negligence was the proximate cause of injury to appellant. The jury also found appellant negligent in having the collagen treatment but failed to find that her negligence was the proximate cause of her injuries. The jury did not answer the damage issues because they were conditioned on an affirmative finding of proximate cause. Thus, the trial court entered a take-nothing judgment in favor of appellee. Appellant subsequently filed a motion for new trial which was denied by the trial court.

In her first point of error appellant contends the jury’s failure to find appellee’s negligence was a proximate cause of injury was against the great weight and preponderance of the evidence. Appellee argues that the jury’s refusal to find proximate cause was supported by a preponderance of the evidence. Further, appellee argues that the alleged error is harmless because appellant waived unconditional submission of her damages issue and, therefore, there is a deemed finding of no damages. Appel-lee also argues that appellant failed to preserve her great weight point because she failed to include it in her motion for new trial.

We disagree with appellee’s contention that there is a “deemed finding” of no damages because the damages issue was conditioned on an affirmative finding of proximate cause. The Texas Rules of Civil Procedure specifically provide that “[t]he court may predicate the damage question or questions upon affirmative findings of liability.” Tex.R.Civ.P. 277.

We do agree, however, that appellant failed to preserve her great weight point because she failed to specifically present it to the trial court in her motion for new trial. The rules of civil procedure require that a party must present a complaint that a jury finding is against the overwhelming weight of the evidence in a motion for new trial as a prerequisite to complaint on appeal. Tex.R.Civ.P. 324(b)(3). The rules also state that grounds of objection couched in general *211 terms shall not be considered by the court. Tex.R.Civ.P. 322. Texas courts have held that an assignment of error which merely states that the verdict is “contrary to law” or “contrary to the evidence” does not adequately present the error to the trial court. See Birkeland v. Rollins Services, 561 S.W.2d 24, 25 (Tex.Civ.App.—San Antonio 1977, writ ref d n.r.e.); Powell v. Powell, 554 S.W.2d 850, 853 (Tex.Civ.App.—Tyler 1977, writ ref’d n.r.e.); Smith v. Brock, 514 S.W.2d 140, 142 (Tex.Civ.App.—Texarkana 1974, no writ). In Smith, the court explained the reason for the requirements of particularity for assignments of error in a motion for new trial:

The requirements of particularity for assignments of error in a motion for new trial are not only for the benefit of the appellate court. They are primarily for the benefit of the trial court. They are designed to perform the important function of not merely laying a predicate for an appeal, but of presenting to the trial judge each ruling or error complained of in such a way that he can clearly identify and understand it, so that he may be able to review all of them with more deliberate consideration than is practicable during trial, and will then have the first full and fair opportunity to correct the errors or grant a new trial if need be.

514 S.W.2d at 142.

In the present case, appellant asserted in her motion for new trial that “when the record is viewed as a whole, the jury’s verdict is against the great weight and preponderance of the evidence.” In her reply brief appellant cites Security Savings Ass’n v. Clifton, 755 S.W.2d 925

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Cite This Page — Counsel Stack

Bluebook (online)
821 S.W.2d 208, 1991 WL 160439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramey-v-collagen-corp-texapp-1991.