On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-14299-96.
Before Judges Pressler, Wefing and Lesemann.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is a legal malpractice case. Plaintiff Brett J. Prince appeals from a summary judgment dismissing his complaint against defendants, the law firm of Garruto, Galex, & Cantor, and several of their partners and associates. We reverse and remand.
The gravamen of plaintiff's legal malpractice action is the handling by defendants of his claims based upon the permanent discoloration of his teeth resulting from his ingestion on numerous occasions from 1965, the year of his birth, to 1970 of Declomycin, a tetracycline drug manufactured and distributed by Lederle Laboratories, Inc. In sum, the defendant-lawyers brought suit only against the pediatricians who had prescribed that drug and did not join Lederle, the manufacturer. Plaintiff claims that Lederle's notice to the medical profession of the teeth-staining risk, first required by the United States Food and Drug Administration (FDA) at the end of 1963, was inadequate and that it was not until 1970, after his pediatricians stopped prescribing Declomycin, that an adequate warning was finally imposed by the FDA on the tetracycline manufacturers. He thus asserts that during the period of 1965 to 1970, both Lederle and the pediatricians were jointly at fault and hence that the defendant-lawyers' failure to join Lederle deprived him of a recovery since the trial against the pediatricians resulted in a no-cause judgment. As we understand the basis of the trial court's decision, it was of the view that since the pediatricians knew of the risk of tooth discoloration when they prescribed the Declomycin, any inadequacy in Lederle's warning at the time in question had no causal effect on the plaintiff's injury and therefore Lederle's omission from the medical malpractice lawsuit resulted in no damage to him. We are unable to agree.
Before addressing the underlying malpractice action and the issue of whether the failure to join Lederle therein presents a prima facie case of legal malpractice, we refer briefly to what is by now the well-known tetracycline story, told and retold in a series of judicial decisions in this State. See, e.g., Batson v. Lederle Labs., 152 N.J. 14 (1997); Savage v. Old Bridge-Sayreville Med. Group, 134 N.J. 241 (1993); Feldman v. Lederle (III), 132 N.J. 339 (1993); Apgar v. Lederle Labs., 123 N.J. 450 (1991); Feldman v. Lederle (II), 125 N.J. 117 (1991); Feldman v. Lederle (I), 97 N.J. 429 (1984); London v. Lederle Labs., Inc., 290 N.J. Super. 318 (App. Div. 1996), aff'd as modified sub nom., Batson v. Lederle Labs. 152 N.J. 14 (1997). See also Wallace v. The Upjohn Company, 535 So. 2d 1110 (La. Ct. App. 1988), writ denied, 539 So. 2d 630 (La. 1989); In re Tetracycline Cases, 747 F. Supp. 543 (W.D. Mo. 1989); Dawson v. Bristol Labs., 658 F. Supp. 1036 (W.D. Ky. 1987); In re Tetracycline Cases, 107 F.R.D. 719 (W.D. Mo. 1985).
Tetracycline is a broad-spectrum antibiotic long considered safe and effective in the treatment of numerous infectious diseases. Declomycin was a much used form of that drug, particularly in children, since it requires lower dosages than other forms. Reports began to appear by the late 1950s, however, that ingestion of tetracycline by young children and even by fetuses antepartum had caused irreversible staining and discoloration of the permanent teeth and even, in extreme cases, malformation of the teeth. The knowledge of this phenomenon had become sufficiently widespread to induce the FDA, by the end of 1963, to require all tetracycline manufacturers to issue a precaution to physicians, respecting the tooth-staining risk of that medication. The precaution advised as follows:
The use of drugs of the tetracycline class during tooth development (last half of pregnancy, infancy and childhood to the age of 8 years) may cause permanent discoloration of the teeth (Yellow-Gray-Brown). This adverse reaction is more common during long-term use of the drugs but has been observed following repeated short-term courses.
In 1970, however, continued reports, information and documentation resulted in the FDA effectively upgrading the precaution into a warning to which the following language was added:
Tetracycline drugs, therefore, should not be used in this age group unless other drugs are not likely to be effective or are contraindicated.
The total warning, both the original precaution and the added language, are printed in capital letters in the Physicians' Desk Reference (PDR), in which the warning first appeared in 1971.
Much of the proof adduced in the malpractice trial against the pediatricians, Drs. Julian Orleans, Theodore Eisenstein and Morton Rachelson, was undisputed. During the first months of his life, plaintiff was under the care of Dr. Orleans, who had prescribed Declomycin for him for an upper respiratory infection when he was about seven months old. In December 1965, while still taking that prescription, plaintiff came under the care of Drs. Eisenstein and Rachelson, who practiced in partnership, and he was treated by both until 1979. During the first five years of his life, plaintiff was subject to frequent upper respiratory infections, including middle ear infections, and was prescribed Declomycin on fifteen occasions, although other medications were used from time to time. Indeed, Dr. Eisenstein testified that between 1965 and 1970, plaintiff suffered from infectious diseases on forty-seven occasions and was prescribed Declomycin on fifteen of them. On three occasions no antibiotics at all were prescribed, and on the twenty-nine others, antibiotics including sulfa drugs, erythromycin and lincocyn, all of which also posed some side-effect risks, were prescribed. Although treated with penicillin on occasion, plaintiff developed a penicillin allergy in 1968, ruling out further use of that drug.
Both Dr. Eisenstein and Dr. Rachelson testified that although they were aware, to some extent, of the potential tooth-staining risk of Declomycin, they regarded it nevertheless as the broad spectrum antibiotic of choice for infectious diseases, so recognized by the pediatric community, safe and effective, and routinely prescribed for, among other problems, upper respiratory infections, until 1970. In that year both Dr. Eisenstein and Dr. Rachelson stopped the routine prescription of Declomycin and other tetracyclines for upper respiratory infections. Dr. Eisenstein attributed two reasons to that decision. He testified that it had become "more and more apparent in the literature that tetracycline was probably responsible for some teeth staining." He also explained that other drugs were coming on the market that provided alternatives to tetracycline. Dr. Rachelson attributed his much more limited use of tetracycline after 1970 to the same causes, noting that "[t]here were increasing reports and knowledge that I had gained pointing out to this [the tooth-staining risk]...." Consequently, he then stopped prescribing tetracycline "routinely under the age of seven or eight," reserving its use for specific infectious diseases, not including upper respiratory ...