Zuchowicz v. United States

140 F.3d 381, 49 Fed. R. Serv. 495, 1998 U.S. App. LEXIS 5366, 1998 WL 136193
CourtCourt of Appeals for the Second Circuit
DecidedMarch 20, 1998
DocketDocket Nos. 97-6057, 97-6099
StatusPublished
Cited by149 cases

This text of 140 F.3d 381 (Zuchowicz v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zuchowicz v. United States, 140 F.3d 381, 49 Fed. R. Serv. 495, 1998 U.S. App. LEXIS 5366, 1998 WL 136193 (2d Cir. 1998).

Opinion

CALABRESI, Circuit Judge:

The defendant, the United States of America, appeals from a judgment of the United States District Court for the District of Connecticut (Warren W. Eginton, Judge). This suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, was originally filed by Patricia Zuchowicz, who claimed to have developed primary pulmonary hypertension, a fatal lung condition, as a result of the defendant’s negligence in prescribing an overdose of the drug Danocrine. Following Mrs. Zuchowicz’s death in 1991, her husband, Steven, continued the case on behalf of his wife’s estate, claiming that the defendant was responsible for her death. After a bench trial, the district court awarded the plaintiff $1,034,286.02 in damages.

The case statement recited above goes to the heart of the law of torts. A plaintiff claims to have developed a fatal condition as a result of a defendant’s negligence in prescribing an excessive amount of a drug—a tragic injury allegedly caused by defendant’s wrong. There is no doubt in the case before us either as to the injury or as to the defendant’s wrong; both are conceded. The only issue is causation.

Did the action for which the defendant is responsible cause, in a legal sense, the harm which the plaintiff suffered?—a question easily put and often very hard to answer. There is, moreover, no older requirement in this area of law than the need to show such a link between the defendant’s actions and the plaintiffs loss. It long precedes the obligation to show that the defendant was at fault.1 Along with the showing of injury, [384]*384causation constituted an essential part of what the plaintiff had to demonstrate for the early common law action in trespass to lie.2

Over the centuries the courts have struggled to give meaning to this requirement—in the simplest of situations, who hit whom,3 and in the most complex ones, which polluter’s emissions, if any, hurt which plaintiff.4 It is the question that we must seek to answer today in the context of modern medicine and a very rare disease.

1. Background

A. Drug, Illness, and Death

1. The Overdose

The facts, as determined by the district court, are as follows. On February 18, 1989, Mrs. Zuchowicz filled a prescription for the drug Danoerine at the Naval Hospital pharmacy in Groton, Connecticut. The prescription erroneously instructed her to take 1600 milligrams of Danoerine per day, or twice the maximum recommended dosage. The defendant has stipulated that its doctors and/or pharmacists were negligent and violated the prevailing standard of medical care by prescribing this wrong dosage.

Mrs. Zuchowicz took the 1600 milligrams of Danoerine each day for the next month. Thereafter, from March 24 until May 30, she took 800 milligrams per day. While taking Danoerine she experienced abnormal weight gain, bloating, edema, hot flashes, night sweats, a racing heart, chest pains, dizziness, headaches, acne, and fatigue. On May 30, she was examined by an obstetrician/gynecologist in private practice who told her to stop taking the Danoerine. During the summer, she continued to experience severe fatigue and chest tightness and pain, and began having shortness of breath. In October 1989, she was diagnosed with primary pulmonary hypertension (“PPH”), a rare and fatal disease in which increased pressure in an individual’s pulmonary artery causes severe strain on the right side of the heart. At the time she was diagnosed with the disease, the median life expectancy for PPH sufferers was 2.5 years. Treatments included calcium channel blockers and heart and lung transplantation.

Mrs. Zuchowicz was on the waiting list for a lung transplant when she became pregnant. Pregnant women are not eligible for transplants, and pregnancy exacerbates PPH. Mrs. Zuchowicz gave birth to a son on November 21, 1991. She died one month later, on December 31,1991.

2. Primary Pulmonary Hypertension

Pulmonary hypertension is categorized as “primary” when it occurs in the absence of other heart or lung diseases. “Secondary” pulmonary hypertension is diagnosed when the hypertension results from another heart or lung disease, such as emphysema or blood clots. PPH is very rare. A National Institute of Health registry recorded only 197 eases of PPH from the mid-1980s until 1992. It occurs predominantly in young women. Exogenous agents known to be capable of causing PPH include birth control pills, some appetite suppressants, chemotherapy drugs, rapeseed oil, and L-Tryptophan.

According to the district court’s findings of fact, the disease involves the interplay of the inner layers of the pulmonary blood vessels known as the endothelium and the vascular smooth muscle. The endothelium releases substances called vasodilators and vasoconstrictors, which dilate and constrict the blood vessels. These substances can also cause growth of the vascular smooth muscle. Experts currently believe that an imbalance in [385]*385vasodilators and vasoconstrictors plays a part in the development of pulmonary hypertension. If too many vasoconstrictors are released, the blood vessels contract, the endothelial cells die, and the vascular smooth muscle cells proliferate. These actions create increased pulmonary vascular resistance.

S. Danocrine

Danoerine has been extensively studied and prescribed since the late 1960s for endometriosis. According to the testimony of plaintiff’s expert Dr. W. Paul D’Mowski, who personally performed much of the initial research on the drug, Danoerine is safe and effective when administered properly. Based on studies by Dr. D’Mowski and others, Danocrine was approved by the Food and Drug Administration (“FDA”) for use in dosages not to exceed 800 mg/day. Mrs. Zuchowicz was accidentally given a prescription instructing her to take twice this amount—1600 mg/day. According to Dr. D’Mowski no formal studies of the effects of Danocrine at such high doses have been performed, and very, very few women have received doses this high in any setting.

B. The Expert Testimony

The rarity of PPH, combined with the fact that so few human beings have ever received such a high dose of Danocrine, obviously impacted on the manner in which the plaintiff could prove causation. The number of persons who received this type of overdose was simply too small for the plaintiff to be able to provide epidemiological, or even anecdotal, evidence linking PPH to Danocrine overdoses. The plaintiff (Mrs. Zuchowicz’s husband and executor), therefore, based his case primarily on the testimony of two expert witnesses, Dr. Richard Matthay, a physician and expert in pulmonary diseases, and Dr. Randall Tackett, a professor of pharmacology who has published widely in the field of the effects of drugs on vascular tissues. In rendering a judgment for the plaintiff, the district court relied heavily on the evidence submitted by these two experts. The defendant challenges both the admissibility and the sufficiency of their testimony.

1. Dr. Matthay

Dr.

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Bluebook (online)
140 F.3d 381, 49 Fed. R. Serv. 495, 1998 U.S. App. LEXIS 5366, 1998 WL 136193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zuchowicz-v-united-states-ca2-1998.