Beverly O'Hare v. Merck & Company, Inc., a New Jersey Corporation, Also Known as Merck, Sharp & Dohme

286 Circuit, 216(i) (1) (A) recent cases in the Third 223 Two tained § § distinguishable. however, scarcely (c) (2), 416(i) (1) (A) are 42 U.S.C. § filing Secretary, 423(c) (2), amended, each of these before made less § answer, by 205(g), stringent, permitted applicable to this his and as and made § taking (Pub.L. 303(f) (1), 89-97, of addi- moved remand case 79 § testimony. grant- 368); Gardner, motion was tional His Nichols v. 361 F.2d Stat. 963, Gardner, appeal (8 1966); Byrd

ed. The therefrom was dismissed 967 v. Cir. ground 1966) ; Sergeant (5 the remand order was 358 F.2d 291 v. Cir. meaning Gardner, (6 1966); not final within the 361 F.2d 334 Cir. § (3 Celebrezze, (d) improper F.2d 467 Marshall v. 351 when felt 1965); Mayersky Celebrezze, applied by Cir. v. standard been have (3 1965). Although Gardner, hearing examiner, F.2d 89 Cir. Moncrief v. present (5 court in the district case effected 357 F.2d Cir. motion, remand on its after own necessarily We assume that on remand Secretary’s answer been filed Secretary process will ex- study merits, after we see no dis- peditiously. long time has been a legal whatsoever, pre-

tinction so far as since the claim was filed. cept concerned, the Third between Cir- appeal is dismissed. cuit cases and this one. Those cases precedent and, furthermore, are here agree Gulfport Shipbuilding with them. Vallot, Corp. (5 v. 334 F.2d Cir.

1964), cert. den. 380 U.S. 85 S.Ct. 14 L.Ed.2d further affords

support. by any is not saved

theory district court was without Beverly O’HARE, power legally Appellant, remand in or that it had sending sufficient reasons the case v. very language pro back. The § COMPANY, Inc., MERCK & a New Jer- sey Corporation, vides the to the Merck, answer of basic also known as Sharp Dohme, Appellee.

power, specifically author remand is ized, Secretary either on motion of the No. 18581. any time, good answer “at Appeals United States Court of say cause shown”. And we cannot Eighth Circuit. the district court’s remand was without July 19, 1967. good (a) possessed cause when Rehearing Aug. Denied existing a reasonable desire docu mentary reports evidence and omitted record, Rhoades, Flemming from the v. 1960); Angell (5 Cir. Flemming, 1961); (4 291 F.2d Cir. Sage Celebrezze, F.Supp. 285,

(W.D.Va.1965); Wray Folsom,

F.Supp. 390, (W.D.Ark.1958); 394-396

(b) it felt unsure about ade- quacy and fairness administrative hearing because of the un- claimant’s

familiarity procedure, see Arms v.

Gardner, 197,199 (6

(c) when, Secretary’s after decision

became final on November

statutory disability con- definitions Minn., Skaar, Minneapolis,

Harvey E. appellant. Cunningham, Minneapolis, Alan G. Minn., appellee and filed brief Faegre Benson, McGough, Paul J. Minneapolis, Minn. OOSTERHOUT, VAN Before Judges. LAY, Circuit

MATTHES experi- Judge. produce a MATTHES, condition such as that Circuit by appellant. enced liability products case involves This Appellee timely filed a motion for a and sold prescription manufactured directed the close of all the (de- by appellee Inc. Merck & Court, Judge Nordbye, but evidence below). Beverly O’Hare, Min- fendant although entertaining doubt as to the citizen, filed suit in federal nesota sufficiency of the evidence to establish damages resulting from the to recover negligence, the submitted case the to surgical subsequent development re- and jury which returned verdict in a favor non-specific in the small of a lesion moval of the $5,000.00. There- intestine, in record referred to the also granted appellee’s the after Court motion prem- as an ulcer or bowel lesion. She judg- n. o. v. and entered theory of action the ised her cause on dismissing ment the oh the merits.1 by use of that the was caused her lesion judgment. This is from that HydroDIURIL Ka-50, re- hereinafter Judge Nordbye found that the January evi- Ka-50. ferred to as Between support dence sufficient to a find- April 1964, appellant 15, 1964 and ing of a causal connection between the forty pills. had taken of the Ka-50 about use Ka-50 of and the legs small bowel lesion overweight swelled and her She was appellant. Appellee in found does body. not in Her due to the excess fluids her challenge finding. that We are therefore medicines, prescribed one doctor three issue, e., faced with but one i. whether being March, 1964, she ex- In Ka-50. present the evidence was to sufficient a hospital- perienced pains, abdominal question negli- fact on the issue of the discharged improved con- in an ized and gence appellee respect testing of to hospital on dition. reentered the She drug giving adequate warning the and pains April re- 13th abdominal when prior placing to it on the market. surgery April occurred, on followed and again Supreme 15th. At the time of its removal take We note of the appellant’s Court’s observation in cause of v. New York lesion was unknown. Dick Life Insurance U.S. 444- 359 The case to was tried and submitted (1959), L.Ed.2d 935 jury solely alleged negligence on the question proper that it whether appellee failing engage of in in more apply a state or federal test of the suffi- testing extensive research and ciency support jury a evidence drug placing market, it on and jurisdiction where federal is rest- failing adequately in warn doctors diversity citizenship ed on remains prescribed drug who Theriot, that could unsettled.2 See also Mercer v. Judge Nordbye, experienced program an able and a duct more extensive research judge, style clearly pill in characteristic de before marketed one form: holding therefore, lineated suggestion, his reasons that “The that Merck Company evidence was insufficient matter of as a the exercise of reason- negligence part law to establish on the able care should made a have more ex- appellee. Judge emphasized investigation that tensive effect prior Ka-50, potassium to the introduction chloride released potassium by examining hospital diuretic and been chloride had bowel small rec- separate pills, patients administered two as to ords effects on there- consequently by potassium introduced reason of their use of Ka-50, chloride, a combination of a diuretic and or to more make a extended re- form, potassium pill potassium chloride a one on search the effects of chlor- new, put etc., animals, it did untried ide various to base prior market; principle damages that no to the fall of 1964 claim for unmitigated hindsight.” potassium suspected one chloride might have some deleterious effect on Judge Lumbard, however, recently ob- Judge Nordbye small bowel. ob further majority have served circuits long served that in view of medi the Erie is “subservient held doctrine * * * cally approved potassium jury use of chloride the kind of by preserved there was no occasion for con- courts federal Food and approval after 84 S.Ct. U.S. favora- similarly- Drug Prior Administration. We have L.Ed.2d 206 Agency, appellee had Jiffy Mar- action open. ble left human animal and extensive Vogel, conducted kets, Inc. v. testing. Motor v. Ford (8th Hanson Cir. (8th Cir. F.2d effect HydroDIURIL the known potas- reducing body’s content applied Since the test to be potas- to overcome In order sium. again here, issue decline take generally deficiency, ac- it was sium position question. definitive prescribe cepted practice doctors Creameries, Land Hun- O’Lakes Inc. v. undisput- It stands potassium chloride. gerholt, (8th 1963) 319 F.2d 352 Cir. history long has a the latter ed that Company Zahn, Ford Motor medical accepted safe use (8th 1959), by appellant, cited shows, also profession. evidence the familiar we reiterated rule that all potassium was however, chloride questions disputed permissible fact and non- taken in irritant when known inferences must be in the viewed nausea, gastric It caused form. enteric only plaintiff, most and favorable the pa- irritation, taste [and] had “a bitter substantially all or of the evi- where all stay it.” Since on just wouldn’t tients dence is one side should a directed po- 1950, however, coated enteric about Appellee does verdict be entered. not pill single form in a chloride tassium otherwise, contend and therefore we will use.4 common in has been ruling apply in test the coating permitted pill the The enteric presented.3 through pass into the stomach the dispute. pertinent facts are in potassium where the small intestine appel- Ka-50 is a coined trademark By gradually pre- chloride dissolved. Hydrochlorothiazide combination of lee’s venting in the dissemination stomach potassium HydroDIURIL and chloride. effects of nausea and bitter the side appellee’s Hydrochloro- is trade name eliminated. taste were thiazide, diuretic. The des- which that Ka-50 uncontroverted It is also ignation presence “Ka” indicates of previously of two combination potassium chloride. Ka-50 is a combina- designed accepted pills mg. and was potassium used and tion of of chloride provide all the needed Hydro- primarily of mg. form and 50 of enteric coated form, single pill. In this in a medication chlorothiazide. The diuretic increases pill potassium of is the body the core the urine flow and rids ex- first, by chloride, an enteric surrounded fluids. also cessive effective mg. Hydrochloro- coating then 50 and treatment heart certain conditions. two-pill process years As in many thiazide. Diuretics have been used diuretic, Hydrochlorothiazide, is dis- or profession, the medical until but stomach, potassium but the discovery by appellee in the solved thiazides coating, chloride, 1950’s, enteric because the mid the diuretics then offered until very reaches HydroDIURIL does not dissolve effective. drug prescription small intestine. became available as a * * * son, Amendment, 109 N.W.2d Minn. and Seventh (1961); Sisters applied Benedictine Quick v. should be federal standard Minn, 470, Association, sufficiency Hospital the issue is the where required from N.W.2d evidence to take the case jury.” Mull Ford Motor alimentary pertains canal tbe Enteric (2d it re- doctor testified One or intestine. ap- Substantially and the “small intestine” test been ferred has same pill coating Supreme dissolved plied by means Court. enteric the Minnesota Malecha, intestine. small in the 266 Minn. McCormick (1963); David- Lott N.W.2d Approximately Prior of Ka-50 on of small distribution bowel lesions. the market conducted several half of the individuals tested had a his- tory using potassium premarketing tests which consisted chloride. Small begun March, monkeys weighing pounds studies chemical ten five to filing appel- heavy and continued until the were administered doses of Ka-50 Drug application high developed propor- and lee’s with Food and lesions conducted Administration. Tests were by tion of the animals tested. The results of investigators reported a number of clinical to the studies tests were product Drug Administration, administered Food and humans. which patients requested supple- cardiovascular various all manufacturers to warning previously given disorders. These tests established ment the efficacy safety by including doctors therein the informa- use, subject to the normal conditions of tion that small bowel lesions occur warning appearing precautions potassium with enteric coated tablets appellee’s humans they Of 136 literature. alone or are used with non- Ka- there no indication that tested enteric coated certain thiazides or other produce request or lesions 50 did would oral Pursuant diuretics. patients ex- A appropriate small bowel. few mailed an statement gastroin- perienced upset physicians. stomach to all complaints. These side effects testinal urging the court erred va- ap- recognized incorporated in were pellee’s cating argues judgment, appellant booklet basic information part irritating qualities potas- of physicians. The results were submitted many sium chloride years prior were well known Drug Administration Food and Ka-50; advent of Agency ap- 9, 1960 that June and assuming safety potassium of application proved appellee’s author- and chloride in combination form July 1, 1960 Ka-50. ized sale of Since improperly relied on fact that that pill ex- has been used the combination tensively drug had medical field been used thiazide and similar as have 1951; known since view of the pills hydrochlorothiazide enteric coated irritating quality potassium chloride of drug manufac- three other of at least negligent testing only turers.5 marketing patients prior 136 Ka-50 September, Prior to making 1964 the medical and in not extensive studies more profession subsequent wholly and tests on animals did unaware of caus- as it a relationship potassium published reports. al between to the chlor- ide and lesions in the small bowel. On of We turn to the standard care now September 28, publi- 1964 a Swedish drugs. imposed upon manufacturer of a appeared, cation followed in November litiga products liability The increase in of article, 1964 an American which brought body tion has forth of law a indicated that there was a causal relation dealing duty with the of manufacturers potassium non-spe- between chloride and drugs. Rheingold, of Products Li cific intestine, lesions in the small ability Drug Ethical Manufactur number of which had been discovered —The prior publication Liability, Rutgers to the of the two arti- er’s 18 947 L.Rev. Appellee promptly cles. acted after the (1964); Hart, Li Dillard Product & appeared. articles Between mid-October ability: Duty to Directions for Use and mid-December, and 1964 conducted a Warn, (1955). 41 Va.L.Rev. 145 study covering period which varied years prior established, firmly from five to ten to December It study disputed by appellant, 1964. That revealed cases not that a manu- 395 Appellee 247,264,700 pills, tablet, through had sold Ka-50 from 1960 Octo- combined 1,1965. ber

291 the skill is held to drugs A in- manufacturer is not an of ethical6 facturer particular of en- expert field respect products an its to the with surer with keep obligated deavor, informed and is Richard- v. which he deals. Cudmore knowledge discoveries Inc., son-Merrell, 644 scientific 398 S.W.2d Erie Baker, concerning Guffie (Tex.Civ.App.1966); field. Lewis v. (3rd Strayer Company, 381 I. 350 F.2d (Or.1966); cf. E. P.2d 403 Distributing Baridon, 1965); Roux Braun v. & Co. Cir. DuPont De Nemours 763; La supra, (8th 1934); Company, 312 S.W.2d Martin Cir. I. Nemours Bengue, Inc., E. De A.2d Plant v. DuPont 25 N.J. (Mo.App. 231, 240 (1957); Company, 346 Chemical S.W.2d Ebers v. General James, Harper The Law & Mich. N.W.2d (1956). manufacturer Torts, Hursh, 28.4 (1945); Law American § expert in its Liability, has is held accountable as Products 2:3§ dangers only which ordinary duty those and rea- field to exercise knowledge it could potential expose or those which it has sonable care not to through of reason- the exercise to an unreasonable risk discover consumer Liability attend products. The will its care.7 harm from the use of able resulting consequences injurious care this standard due those failure to meet product, harmful circum- the use the attendant from all developed negligence human of which “no stances will constitute effects knowledge.” foresight liability subject can afford the manufacturer skill or resulting consequences. Philip fact that Morris Ross v. injuries proximately (8th consumer’s product by the manufacturer’s caused duty to warn The manufacturer’s and of itself constitute does danger potential inherent users predicate which to sufficient basis product its in its is commensurate liability. the manufacturer’s When knowledge of risk involved actual negligence, a sounds in cause of action knowledge construc users or the those additionally duty to test manufacturer’s by tively imparted it scienti to available investigate propensities of its fic or other medical data. Land O’Lakes product dependent the foresee- Creameries, Hungerholt, F. Inc. v. 319 potential in users able risk of harm (8th 1963); 352, 2d 360 Gober Cir. light of current medical scientific Inc., 47, (4th Revlon, F.2d Cir. Wright knowledge and discoveries. Products, Inc., 1963); Howard v. Avon Products, Inc., 56-57 Carter 1011-1012; supra, 395 P.2d at Vanoven (2d Prod v. Avon Cir. Howard Hardin, Ark. 344 S.W.2d ucts, Inc., 395 P.2d 155 Colo. (1961). 340, 342-343 (1964); Richardson- Cudmore v. Inc., supra; Merrell, Roux Dis Braun v. assert, Appellant does not evi- tributing Company, 763- 312 S.W.2d prove, that Ka-50 con- dence does Lartigue (Mo.1958); v. R. J. cf. foreign ingredient, substance, any tained Reynolds Tobacco impurity in- it or other that rendered cert, (5th 1963), denied, herently dangerous 375 U.S. human or unfit consumption,8 any nor is there evidence 11 L.Ed.2d 92 liability drug” in 6. manufacturer’s The term is used here in test “ethical by appellee’s patent drugs negligence, knowl- measured contradistinction sold counter, pre- edge up time of the circumstances to the over the and refers those ap- injury. scription appellant’s Appellant drugs be which cannot sold safe- peal, ly except supervision moreover, that not contend of a does practitioner. Rheingold, op. be otherwise. cit. su- test should pra. cit., Rheingold, op. supra at observes majority charge jury, decided ethical In his to the to which no exception taken, Judge Nordbye arisen from harm caused cases have was pure essentially drugs carefully by impure than ones. rather delineated same potas- September, to establish that the diuretic and studies revealed that might one-pill potassium produce in sium chloride form was chloride small any percentage lesions in minuscule different content from the same bowel drugs they previously apply if of individuals. as admin- Even test two-pill allergy cases, in the it is of istered form. The no avail thera- peutic drugs appellant is a total of' action of the into since there lack combined appellee Ka-50 was identical action in evidence that had actual or con- to their two-pill knowledge, form. structive it made Ka- July, 1960, possible of the available potassium chloride It is true relatively harmful con- effects to a few is em was a irritant. This fact known sumers. phasized by support her appellant appellant’s have all We considered appellee’s premarketing contention that and those revealed inde- .authorities humans, testing Ka-50, limited to 136 pendent compels- research. None of them wholly inadequate particularly judgment. In reversal court’s ap of the studies and tests which analysis the final the crucial pellee after conducted learned fairly simple for determination is a one. possible relationship potassium between evidence, proper Does the tested chloride Aside and small bowel lesions. standard, present a fact issue as irritating quality of from the known whether in the exercise of the potassium form chloride nonenteric degree imposed upon of care to- failed Sep and the events which occurred after adequate make and tests before research tember, 1964, this no contention finds making prescription Ka-50 as a available support Appellant record. made history drug? long (a) In view of attempt no establish direct evi continuous, frequent, and successful premarketing dence that tests were chloride, potassium use of enteric coated inadequate or did not to the conform knowledge by (b) ap- the lack of actual care and skill which a manufacturer pellee product might of the harm its required Moreover, the ir exercise. cause to the time some users at ritation was confined the stomach consumer, became a and the lack of potassium where the non chloride knowledge time scientific so pre enteric form would dissolve. charge knowledge, cisely spawned this side effect en (c) the total absence evidence potassium pills. teric coated chloride administering potassium chloride view these therefore circumstances pill produce and the diuretic one would judge liability appellee’s we must experienced side adverse effects knowledge basis of scientific available drugs those were administered drug placed it at the the time was we, Judge separately, Nordbye, like are the stream of commerce. forced to conclude resort hind- that to party attempts analogize Neither to sight required in would be order to sus- injurious consequences resulting the jury’s tain the verdict. from the use Ka-50 to those situa- product pro- tions where the involved Inasmuch as there was no ac duces harmful results to a small and negligence regard testing, tionable to persons limited number were al- who precautions imparted it follows that the lergic hypersensitive or in- to certain profession to the medical gredients present See, product. in the placed at the time Ka-50 g., Sterling Drug, Cornish, e. Inc. v. adequate comported market were and (8th Magee 370 F.2d 82 duty Obviously, ap with the to warn. Wyeth Laboratories, Inc., Cal.App. pellee required pos was not of a to warn Cal.Rptr. (1963); 2d Braun sible adverse side effect which it Distributing supra; Roux knowledge. no or actual constructive Wright Inc., Products, supra. v. Carter remains, however, post- The fact that Affirmed. falsely alleges and “the defendant that REHEARING FOR

ON PETITION drug represented” fraudulently that PER allegation CURIAM. Such an was harmless. pleading concepts federal the liberal rehearing by panel petition The for relief claim for to state a said can be denied, and en banc is and the Court warranty. implied express See or an on petition be extent that 8(a). Law also Prosser Fed.R.Civ.P. trial, a new as motion for considered (3d Torts, ed. 678-81 § denied. motion for a new trial is ambiguity Again, record there LAY, Judge (concurring Circuit appellant’s counsel, in his to whether as dissenting part part). judge, colloquy waived the trial with warranty. implied How- his claim plaintiff’s use This arose from the suit ever, doubt- waiver seems an intentional manufactured defendant. request an for of his ful jury solely The was submitted warranty. implied on instruction negligence. jury the issue plaintiff returned a verdict circumstances, I feel these Under granted mo- trial defendant’s court the district remanded to be case should ground o. v. tion for judge with a so trial court that proof plaintiff’s was insufficient him, review complete can before record neg- any finding of to sustain actionable grounds for new time the the first ligence. appealed plaintiff this upon such this rules Before court trial.1 judge’s court and we trial affirmed the us, initially issues, now raised denying plaintiff-appellant relief. order ordinarily op- have an court should trial question. portunity pass upon regard petition appellant’s re- court obvious reasons that the trial is for hearing, majority in I concur urge a preferred in which forum is the overruling petition rehearing as Pulp Virginia trial. new Cone v. West error our to the claimed of this court in 215-216, Paper Co., 67 S.Ct. 330 U.S. original opinion. This court does not ; Liquor (1946) 91 L.Ed. 849 Globe has raised feel over- 571, 573-574, Roman, U.S. v. San Co. affecting point looked of merit those (1948); 92 L.Ed. 177 68 S.Ct. thoroughly origi- issues considered in the Pugh, Inc., Dichmann, Wright & Weade Judge nal forth Matthes’ set L.Ed. 1704 337 U.S. opinion. excellent particularly where true This However, appellant’s peti- filed with appellate in- court the record before rehearing incorporated tion for there- complete. grant ap- is motion court upon this court I incumbent feel pellant ground a new trial on the court remand to the district so failing trial erred to instruct appel- judge might entertain jury implied express warranty. complete motion in lant’s view Appellant warranty contends that counts least, very be would record. At pleaded request salutary op- parties allow both made to the trial court to make such in- portunity to be heard in court this Admittedly, ap- struction. the record on light respective their contentions peal incomplete regard the to appellant’s new motion for trial. request the for instruction to and as attempt claimed Eby abortive to How- Neely amend. K. Martin Constr. Co., 329-330, appear complaint S.Ct. ever 317 at does that U.S. Eby Co., Neely trial so that 1. In K. record sufficient v. Martin Constr. ruling informed can an court make U.S. (1967), trial. im- for new the Court the motion 18 L.Ed.2d 75 plies appropriate make that to remand is Advisory 50(c) (1967), Committee’s at 18 L.Ed.2d note Rule Supreme (2) explains follows: after the Court of as Court stated Appeals v., granted judgment had a o.n. “Even if the verdict-winner makes although a motion new trial was for trial, no motion newa he is entitled for presented by not the verdict-holder upon judgment appeal from n. his rehearing, petition nor for a urge only judg- o. v. not was, course, that “It incumbent on the judg- ment should reversed and be Appeals Court of consider the new trial upon verdict, ment entered but question its own ex- during that errors were committed perience with case. But not we will trial which a at the least him to entitle duty ignored the court its assume new trial.” 31 F.R.D. 646 although respect, in this have it would (Emphasis mine) opinion expressly been better its had gives approval Supreme The Court question.” (Em- dealt with trial the new Eby Neely viewpoint Martin K. this phasis mine) supra, 386 U.S. Constr. appellant The in his motion for re- it states: S.Ct. at hearing prays as follows: “Likewise, plaintiff’s if the application “If of the law of court on defend- the trial set aside implied warranty was and essential may motion, plaintiff ant’s n. o. v. justice to the determination of in this directly very grounds bring these matter, plantiff respectfully requests a moving appeals for without the court rehearing issue, on this or that this the district court.” a new trial upon Court its own motion vacate its Therefore, appellant is clear judgment and remand this a for by failing rights has not waived new trial jury to be submitted to the trial make his motion new theory warranty basis practical There are court below. originally pleaded by as appellant.” cogent non- rule of reasons this While it is true that this motion is en waiver, appeal- verdict-winner that a only “petition rehearing,” titled ing primarily judgment o. from a required pleading are to treat of that desires a review broadly and look for matters substance gen- reinstatement of the verdict. He is rather than matters See Fed. form. erally pursuing im- interested 8(f). R.Civ.P. There should little be order, which, grant- if mediate new trial appellant court, doubt that only supersede moved has ed trial could judgment. appealable trial If a new previous reconsideration the court’s granted would rulings be verdict-winner but time, also for the first for a opportunity re- left obtain with no new rehearing trial. denial of The can original judgment. Of view his only appel relate to matters which course, enter the trial could already hearing. lant has Rule of a trial as well conditional order new Cir.). U.S.Ct.App. (8 problems granting v., n. o. under Fed.R.Civ. presented by appellant on his motion for 50(b) (c), these P. but even under trial, however, original new are at this plaintiff may re- be circumstances point. new luctant for a trial because to move uncertainty be argued the order will appellant be has conditional. by failing waived his motion for new move, pursuant trial court only serious is whether 50(c) (2).2 However, required Fed.R.Civ.P. case was party days entry 2. “The whose verdict has been after of the set later judgment notwithstanding than 10 judgment aside on motion for notwith- the verdict.” may standing 50(c) serve motion a Fed.R.Civ.P. pursuant for a new trial to Rule 59 not Variety origi- American Guild In Smith v. a trial his of new the issue raise Artists, (8 1966), could he appellate or whether nal brief emphasized matters not our rule that ruling on the for our wait argument upon appeal or in brief raised moving trial a new for o. v. before by ordinarily passed upon an be will rehearing. petition along for his However, policy appellate court. by Mr. Again, feel this is answered I allowing by is not this rule contravened opinion: Eby Justice White trial for new to move a verdict-winner choose petition can “Moreover first time on for rehear- for for necessarily ing. are not faced his Here we to make own convenience his problems.3 We are substantive with new may bring he his a mew trial: case for request for first time with a faced trial grounds trial for new remedy. It is newa first judge’s defendant attention when singular my opinion, disagreeing with the may motion, he o. an n. makes pre- majority, whenever the motion argue appellee’s question his this though arguable grounds, even sents appeals, or he court of brief petition the first time with a raised for re- seek in suitable situations rehearing, we should allow the trial appeals hearing the court after from pass upon the motion new court * * judgment has been his reversed. trial, face it be unless its should “ * * * presents If no granted Cone v. West Vir- or denied. Cf. his or in Co., supra. issues in brief ginia Pulp Paper new trial rehearing, petition court of viewpoint emphasize only I this is appeals may, any event, order a new majority judge panel. of one its own nor trial on motio refer ruling herein, every should verdiet- make question court, to the district based holder-appellant to assert cautious its own re- on factors encountered in grounds brief. new in his main for a trial 328-329, view of the case.” 386 U.S. although ruling, simply I feel mine) (Emphasis at 1080 87 S.Ct. orderly traditional, perhaps more situa- spirit above discussion relates contrary rules to the liberal 50(d) verdict- development pro- tion Rule where the pragmatic appellee, but exists holder was the there play.4 likewise con- fair I feel it cedural apparent why Neely logic spirit reason state- trary no the same of the Dichmann, applicable case, is not the verdict- ment where well as Weade appellant. Wright Pugh, Inc., supra.5 holder is Eby nor 3. Neither the Smith case 386 U.S. at Constr. pertain upon, mo- authorities relied at 1084. authority new remedies. Each tions for urged in dissent Black 5. Mr. Justice referring to to raise a the failure hearing trial be- for a on a new remand specific questions law. Neely. The the District Court fore Black, dissenting Supreme said: remand be- Mr. Justice denied the Court “This issue of whether new trial the Court it had not been raised cause rehearing. justified Appeals, after a set ei- now verdict is aside We even appellate right ther a trial or an court motion to raise the foreclose the rehearing. neces- in his new issue which was not Black Mr. Justice Weade, summary sary original dissent, trial. reflects the decide in apropos here: is a factual issue and appropriate remanded tribunal is the more “There we ordered the petitioner’s pass on uni- trial court to to determine has been almost petitioner versally accepted by new trial because federal and motion for both years.” suggested throughout there to this Court state courts theory presented (My Neely emphasis) K. alternative v. Martin appeals finally Until the court of has granting Erle G. SWANSON and Helen F. ruled on the of defendant’s Swanson, Appellants, judgment v., motion for n. o. verdict- single purpose holder’s is to reinstate COMMERCIAL ACCEPTANCE CORPO- jury. verdict he obtained below from the RATION, Appellee. finality judgment Until he in- sees No. 20908.

validating verdict, again, not he is Appeals suggesting United States Court of interested in even a new trial. Ninth Circuit. many fact, appeals the court of June argument jury instances his proper could record emphasis be vitiated his simultaneous pleas

on errors in Inconsistent the trial. original

and alternative motions in his heavy already

briefs would add to his would, persuasion.

burden This

course, always since fre- be true

quently grounds similar could underlie

both motion for new his his

trial. plaintiff’s com-

In the instant case enough

plaint was broad include

claim for breach of for relief either warranty.

express implied Based or appear to there would Exhibit the sub-

be evidence to sustain sufficient warranty. implied express

mission

The case should be remanded to the court made so that the record can be

complete, judge and the trial can re- adequately

view cannot motion. We

pass on the motion ourselves when incomplete

record is as to the error claim- least, very parties At I

ed. feel both opportunity

should have an in this court argue prepare briefs on mat- by appellant

ters now raised

first time on his motion for new trial. majority order denies the opportunity to be heard. In this

phase respectfully I order dissent. complaint However, holding appellate evidence. no- that ‘an * * * where the record in that case was order o. v. where petitioner argued indicated that the record reveals a new trial issue theory this alternative (Em- the Court which has not been resolved.’ opinon Appeals, nothing added.)” phasis in- Neely our v. Martin K. requirement. Eby dicates such Constr. 386 U.S. at correctly Court summarizes Weade as

Case Details

Case Name: Beverly O'Hare v. Merck & Company, Inc., a New Jersey Corporation, Also Known as Merck, Sharp & Dohme

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 29, 1967

Citation: 381 F.2d 286

Docket Number: 18581_1

Court Abbreviation: 8th Cir.