On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication April 30, 1996.
Before Judges Dreier, A.m. Stein and Kestin. The opinion of the court was delivered by Dreier, P.j.a.d.
The opinion of the court was delivered by: Dreier
The opinion of the court was delivered by DREIER, P.J.A.D.
Defendant, Lederle Laboratories, appeals from a judgment in favor of plaintiff Cathy A. London in the net amounts of $43,200 for dental expenses and $7500 for past and future pain, suffering and emotional distress. Plaintiff cross-appeals from the amount of the judgment and requests additur, a new trial, and a further remand for a jury to determine whether punitive damages should be awarded.
The underlying facts are those of a typical damage claim based upon tetracycline having stained plaintiff's teeth when she was a young child. See, e.g., Savage v. Old Bridge-Sayreville Med. Group, 134 N.J. 241, 633 A.2d 514 (1993); Feldman v. Lederle Labs., 132 N.J. 339, 625 A.2d 1066 (1993); Apgar v. Lederle Labs., 123 N.J. 450, 588 A.2d 380 (1991). A companion case, Batson v. Lederle Labs., N.J. Super. (App. Div. 1996), also decided by us today, involves a similar claim by plaintiff's sister. *fn1
Plaintiff, Cathy London, was born October 1, 1957. As a child, she periodically suffered from upper respiratory infections. During the first ten years of years of her life, she was treated for these illnesses exclusively by the family physician, Robert L. Pierce, M.D.
Dr. Pierce regularly treated childhood infections with a particular class of antibiotics known as tetracycline. On fourteen different occasions from January 8, 1958 through September 4, 1964, Dr. Pierce prescribed various brands of tetracycline to treat plaintiff's infections; he specifically prescribed brands of tetracycline manufactured by defendant Lederle on eleven of those occasions. Until February 4, 1963, Dr. Pierce had prescribed for plaintiff only Achromycin and Declomycin, both of which are Lederle products. Thereafter, on April 4, 1963 and September 4, 1964, he supplied plaintiff with prescriptions for Terramycin, a Pfizer drug, and on May 6, 1964 he prescribed Mysteclin F, a Squibb product. Overall, plaintiff received tetracycline prescriptions twice in 1958, four times in 1959, twice in 1960, once in 1961, once in 1962, twice in 1963 (one time from Lederle; one time from Pfizer), and twice in 1964 (one time from Squibb; one time from Pfizer). *fn2
The ingestion of tetracycline drugs, particularly during the period from birth through the time a child is approximately eight years old, has the capacity to stain and discolor bones and teeth. Plaintiff's teeth exhibit the type of staining associated with the use of tetracycline.
At trial, Dr. Pierce testified that he would not have prescribed Achromycin and Declomycin when he did if he had been aware of their side effects, unless "due to other circumstances you can't use anything but." However, at a 1989 pre-trial deposition, the doctor had agreed that he was aware of the correlation between tetracycline and tooth-staining in March of 1964, prior to the time he prescribed the Squibb and Pfizer products. This statement was brought to the jury's attention during the doctor's cross-examination. The doctor further agreed that plaintiff had never presented an illness that would require him to "override [his] best judgment and use tetracycline to treat her although [he] knew that it was possibly going to stain [plaintiff's] teeth."
Plaintiff testified that other children teased her about the discoloration of her teeth and she grew to be extremely self-conscious about smiling, shy and withdrawn. She would like to have had her teeth capped, but could not afford the cost due to her low-wage jobs. She is college educated, and originally considered a teaching career, but rejected teaching because of her shyness. Plaintiff's prosthodontist estimated that capping her entire mouth would cost $28,800 and that the caps would have to be replaced "a couple of times" or "several times." He estimated that the caps provided in each procedure would have lasted ten years.
The jury was presented with a series of twelve special interrogatories on which they noted their verdict. The interrogatories, along with the verdicts, are as follows:
1. WHEN DID LEDERLE HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE TOOTH STAINING EFFECT OF TETRACYCLINE?
2. DID LEDERLE ACT REASONABLY IN AWAITING FDA APPROVAL BEFORE ISSUING A WARNING FOR TETRACYCLINE?
IF YOUR ANSWER TO QUESTION # 2 IS "YES" -- STOP-- YOU HAVE REACHED A VERDICT FOR DEFENDANT
3. FOR EACH INGESTION OF TETRACYCLINE DID CATHY LONDON'S TREATING PHYSICIAN PRESCRIBE IT FOR ITS INTENDED PURPOSE OR IN A WAY THAT WAS REASONABLY FORESEEABLE TO LEDERLE?
IF YOUR ANSWER TO QUESTION # 3 IS "NO" AS TO ANY INGESTION ANSWER QUESTION # 4
4. IF YOUR ANSWER TO QUESTION # 3 IS "NO" PLEASE INDICATE ON WHICH OF THE INGESTION DATES THAT CATHY LONDON'S TREATING PHYSICIAN FAILED TO PRESCRIBE TETRACYCLINE FOR ITS INTENDED PURPOSE OR IN A WAY THAT WAS NOT REASONABLY FORESEEABLE TO LEDERLE.
IF SOME, PLEASE SPECIFY ...