Palmer v. AH Robins Co., Inc.

City Springs, however, Colorado part any legal of the Act ceased have majority’s

existence or effect. The deci- only

sion in this case contravenes the

unambiguous legislature intent

any provision 1978 Act was to be incapable independent-

deemed execution

ly but, provision impor- other more

tant, previously revives what had been de- to be constitutionally inoperative

clared

law. I

Because believe the construction of the

nonseverability adopted by clause City Springs Colorado

court correct, I would reverse trial court’s

entry summary against judgment

plaintiffs and remand the ease further

proceedings plaintiffs’ on the claim that the Acts,

1979 and 1981 which became effec- 1,1980, 1, 1981, January July

tive on

respectively, impermissible constitute retro-

spective legislation applied plain- rights pension plans

tiffs’ asserted in local

preexisting the 1979 and 1981 Acts and thus, according plaintiffs, violate I, 10(1)

Article Section of the United States II,

Constitution and Article Section 11 of

the Colorado Constitution. ERICKSON,

I am authorized say

C.J., ROVIRA, J., join in this dissent. PALMER, Plaintiff-Appellee, M.

Carie CO., INC., Virginia

A.H. ROBINS

corporation, Defendant-Appellant.

No. 81SA149. Colorado,

Supreme Court of

En Banc. 4, 1984.

June Rehearing Modified Denial of

As 18, 1984.

June

Bragg P.C., Dubofsky, Douglas & E. Bragg, Baker, Denver, plain- John T. for tiff-appellee. Graves,

Tilly Tilly, and James L. Charles Q. Socha, Denver, McGuire, Woods & Bat- tie, Slaughter, Beginning September Alexander H. E. Duncan shield. in Da- Getchell, Jr., Valentine, Mays, Davenport & study year vis conducted a test for one on Moore, Cogar, William R. Clifford W. Per- family planning the shield at a clinic that rin, Stephen Brewer, Richmond, Va., W. for Davis, According he directed. to 640 inser- defendant-appellant. only tions pregnancies, resulted in five the equivalent biostatistical of a rate dur- 1.1%

QUINN, Justice. ing period. the testing referring Without shield, to his appeal defendant-appellant, this the interest in financial the Davis (Robins), Company, published A.H. Robins Inc. chal- then an February article in the lenges judgment compensatory a for 1970 issue of American Journal Obstet- of punitive damages plaintiff- in favor of the Gynecology, reported rics and in he appellee, Palmer. Carie Robins raises a on the study repeatedly results relating multitude of several evi- claims to “superior” referred to shield the as a IUD. court, dentiary rulings the trial the suffi- Robins, intrigued by results, test Davis’ ciency negligence of evidence on Palmer’s investigated the possibility purchasing claim, jury the submission to the of Palm- the shield. investiga- As result of this express claims for and im- er’s breach tion, two memoranda were sent to Robins’ warranties, plied propriety the of certain top management in early by June 1970 proof on the instructions burden department. members of Robins’ medical se, and, addition, negligence per in the memorandum, The first by authored Dr. jury’s punitive damages. Finding award of Clark, Fred indicated that Davis’ claim of a error, judg- we affirm the no reversible pregnancy rate in 1.1% twelve months had ment. equivalent jumped to preg- 5.5% I. Proceedings The District Court nancy rate after fourteen months. A sec- place memorandum, In order in a case factual ond by written Dr. Jack context, briefly Freund, we summarize the events noting addition to that the 1.1% leading up judgment. Occupying pregnancy study rate Davis had product central role these events is undergone longer some increase awith fol- itself, (shield). the Daikon Shield low-up period, study stated the Davis long enough project was “not ... with plastic The shield is a intrauterine device population confidence to the as a whole.” by It small manufactured Robins. The existence and contents of these memo- dime, shaped, oval about the size of a randa were revealed those never Robins’ prongs a row of fins or side. It is each personnel responsible marketing designed shape to fit and contour 12, 1970, pur- shield. On June Robins cavity. tailstring uterine A is attached to rights chased all to the shield from the proper checking the shield as an aid in Corporation. Daikon placement and as aid to its removal. place, properly When the shield is Robins several made modifications to the tailstring passes forward from uterus completing shield in late 1970. Without through vagina. and into the cervix testing clinical on the modifications or string, single The strand em- unlike revealing profession, them the medical devices, ployed in other intrauterine is a began to market the shield national- placed nylon multifilament strand inside ly in January carrying out an exten- sheath unsealed at both ends. promotional campaign sive directed to both community lay public. the medical and the shield was invented Irwin Lerner, particularly Robins’ label is previous design indica- S. who modified a Davis, profes- type tive claims about the an associate made Hugh Dr. J. device, namely: that gynecology of obstetrics and at Johns the shield was “the sor Hopkins Lerner, Davis, superior I.U.D.”; modern University. that it had the 1.1%”; subsequently pregnancy other “lowest one individual formed rate that it [of] Corporation Daikon- market pregnancy minimal rates with “combin[ed] exceptional patient tolerance”; “pre- that it Dr. Robins did not contact Earl about warning until after the shield had been pregnancy producing any without vented] years removed from the market over two general body, effects on the blood or During period later. the seventeen month brain”; safe, sure, “provid[ed] and it between June 1972 November contraception.” primary sensible The basis plaintiff grave injuries when the sustained study for these claims was in the Davis resulting shield, from the use of the prior 1968-69 to the modification of the twenty-two reports spontane- received in shield users, septic ous in shield abortions one of August In 1971 Robins was informed Despite which resulted in death. Robins’ quality supervisor control at knowledge septic danger, abortion it Chapstick, subsidiary a Robins which as- immediately it did not alert the medical shield, performed sembled the had a “wick- community danger. In October 1972 ing” tailstring test on the of the shield and brochure, patient stating Robins revised its string determined that the interior of the pregnant if a woman becomes while through could “wick” fluid its entire shield, wearing bag pushes “the of water length. wicking existence of tenden- the IUD to one developing side and the cy in significant an intrauterine device is in baby really touching is not the device at all. There is no normally frequency that the uterus is sterile. evidence that the Under any greater abnormal among births ordinary conditions the cervix and cervical wearing among women IUDs than women prevent entry mucus will into the uter- Also, wearing April IUDs.” as late as residing vagina. us of in bacteria How- physicians 1973 Robins continued to advise ever, tailstring wicking with a IUD place to leave in the shield in the event the tendency provide pathway vaginal can pregnant user became and desired the uterus, thereby causing bacteria into the pregnancy go term. pharmaceutical infection. The director of 16, 1973, Robins, January Palmer, although research On Carie aware that who twenty-four year was then a old wife and tailstring body could thus transmit mother, by was fitted obstetrician-gy- her containing fluids bacteria into the sterile Petri, necologist, Dr. Kenneth with a infection, uterus and cause nonetheless in- Palmer, shield. who wanted to wait sever- Chapstick changes structed that no should years children, having al before more chose product. be made in the this device as a birth control method on the 23, 1972, Earl, On June Dr. Thad J. advice of Dr. Petri and on the basis of consultant, investigator Robins clinical promotional Robins’ describing materials sent a management letter to the of Robins superior contraceptive safety fea- in danger septic which he warned tures of the specifi- shield. Dr. Petri had might abortion shield users who become cally promotional relied on claims made pregnant. Dr. Earl stated his letter: safety Robins as to the and effectiveness “The next situation I have found is of the shield in prescribing this device. becoming pregnant with women if having shield, After been fitted with the place is left Shield women Palmer continued to use it as a method 3¾ n to 5 months and become because, contraception at abort on her based review promotional of Robins’ septic. given I literature advising physicians am that the Petri, her Dr. she believed the shield to device should be removed as soon as a preventing effective in pregnancy 98.9% diagnosis pregnancy is made. Numer- pill. and safer than the birth control physicians my ous have noted this. In pregnancies, six I removed one and she August preg- 1973 Palmer became term, carried full the rest all aborted and Petri, Dr. believing nant. that removal of septic. became I therefore feel that it is might spontaneous shield cause a abor- hazardous to leave the I tion, device leaving place whereas it in could cause harm, advised that it be removed.” no did not remove the device. Palm- pregnancy progressed normally er’s ultimately until Robins took the shield off the 18, 1973, request market in June 1974 November when she became vio- at the Drug Food and lently Administration. symptoms. ill with influenza-like her Within hours of admission into the hos- Palmer, being after informed that her pital, spontaneous septic she suffered a uterine infection had by been caused abortion, involuntary miscarriage an introduction of bacteria into her by uterus by tailstring shield, means of the caused a blood borne on the bacterial infection filed against suit Robins in centered in the December 1975. uterine area. Palmer sub- The action negli- was based on claims in sequently shock, septic went into a condi- gence, liability strict in tort under section resulting tion from a massive infection (Second) 402A of the Restatement Torts pressure with a concomitant fall in blood (1965), express implied breach of dangerously a low level. She also devel- warranties, an puni- with added claim for oped impeded a blood disorder which natu- damages. pretrial tive hearings Numerous clotting ral ability. blood In order to save were held in an effort to resolve evidentia- life, perform her it necessary was a total ry expedite issues and the trial. The trial uterus, hysterectomy fallopian her 29, 1979, May commenced approximate- tubes ovaries were removed. It was ly prior six months to the effective date of expert opinion Dr. Petri’s that Palmer’s Evidence, the Colorado Rules of lasted sev- septic uterine infection and the abortion weeks, en and involved a multitude of wit- by were caused the shield. As a result of nesses and hundreds of exhibits. hysterectomy, experienced Palmer con- During the trial the court made various problems tinued health thereafter. evidentiary rulings challenged by now Rob- In the fall of 1973 Robins had become ins. The court ruled that certain “adverse Christian, professor aware that Dr. C.D. reports,” reaction which consisted of re- gynecology of obstetrics and at the Univer- ports by received of serious difficul- Robins Arizona, sity of writing an article on experienced by persons ties fitted with the danger septic of mid-trimester abor- shield, would be admitted on the issue of IUDs, posed by particularly tions danger posed notice to by Robins of the its shield. Subsequently, in February product. The court also admitted into evi- Robins called a conference to examine the computerized dence records that had been problem. The conference led to the is- by reports made Robins from it received letter,” suance of a “Dear Doctor dated spontaneous septic experienced abortions 8, 1974, May 120,000 throughout doctors by using women an IUD. Another chal- States, warning the United them of the lenged evidentiary ruling relates to the ad- hazards associated with the shield in cases article, mission of Dr. C.D. Christian’s “Ma- unplanned pregnancies concluding ternal Deaths Associated with Intrauter- as follows: ine Device.” The also admitted evi- court dence of “lay publicity” Robins’ extensive explore every “We intend to reasonable campaign promote sales of the shield. approach any if unique to determine rela- Finally, court, sustaining the trial a hear- tionship exists between the Daikon say objection by Palmer, refused to admit septic Shield abortion. this con- portions memorandum, of a written nection, request you provide we full coordinator, project summarizing any septic spontaneous details of case of portions telephone of her conversation may abortion which have occurred physician reported septic who had abor- among your patients fitted with tion suffered a shield user. IUD; may such information be sent to us or to the Bureau of Medical Devices and It was established at trial that Robins’ Diagnostic Products, Drug Food and Ad- sales revenues from the shield exceeded ministration, Health, Department $11,000,000 Edu- during years and that it ” cation and nearly Welfare.... marketed this its net worth

doubled, $157,695,000 increasing to in 1974. be set forth when those matters are ad- earnings $25,360,000 net Robins’ were in dressed. 1973, $26,917,000 1974, $29,916,000 Evidentiary II. Issues 1978, trial, year preceding the with a Reports A. Adverse Reaction $240,275,000 net worth of at that time. challenges Robins the admission into evi- At the close of the evidence the court reported dence of adverse reactions suf- denied Robins’ motions for directed ver- by prior fered other users of shield liability dicts on Palmer’s claims and her 18, 1973, November when Palmer suffered punitive damages. claim for The court septic abortion. The trial court admit- jury relating submitted instructions to the reports only ted the on the issue of notice negligence, to Palmer’s claims in strict lia- because, view, in its “the defendant had tort, bility in express and breach of an through received notice these various case warranty implied warranties of mer- reports product defects and ... both chantability particular and fitness for a negligence theory under the and under the purpose. punitive In connection with the product theory plaintiff may defect ... use claim, damages the court instructed the this evidence to establish failure to warn

jury punitive damages could be award- upon given based notice that was to the jury if ed found in favor of Palmer on alleged product defendant of the defects.” negligence either her claim or defective We conclude that the trial court did not err product claim in tort and further found ruling. in its beyond a injury reasonable doubt “that the reports adverse reaction had complained by of was attended circum- compiled by been Robins the normal fraud, by stances of or a wanton and reck- course of its business order to evaluate disregard rights less of the feelings significance the medical of comments it re plaintiff.” concerning product. ceived its Most of the days After three of deliberations the reports admitted into evidence consisted of returned verdicts in favor of Palmer for telephone letters and memoranda from $600,000 compensatory $6,200,000 pu- physicians reporting problems various asso damages. nitive The trial court denied shield, ciated including use of the post-trial motions judgment and entered a abortions, septic such conditions as un on the verdicts. planned pregnancies, perforations, uterine evidence, although and infections. This appealed judgment to the consisting party of third statements to appeals, court of which referred the case to Robins, subject hearsay was not to the rule pursuant this court to section 13-4- of exclusion because it was “offered for 102(l)(b), (1973), 6 C.R.S. because of Rob- purpose some proving other than the truth challenge constitutionality ins’ to the thing asserted.” Prudential Co. v. statute, punitive damages section 13-21- Sommers, 212, 221, 148 Colo. 365 P.2d (1973). accepted jurisdic- 6 C.R.S. We (1961). claims, opinion tion and address in this all otherwise, by constitutional and raised When a manufacturer or seller evidentiary Robins. We first consider the knows or should know of unreasonable rulings court, of the trial next the issues dangers prod associated with the use of its claims, relating warranty to the then Rob- users, uct product obvious to it has challenge sufficiency ins’ of evidence duty dangers; to warn of these and a claim, negligence Palmer’s followed duty negligence. breach of this constitutes propriety negligence of instructions on E.g., Bailey Co., v. Montgomery Ward & per and, last, se proof, Inc., and the burden of (Colo.App.1981); 635 P.2d 899 Hamil respecting punitive Robins’ claims dam- Hardy, Colo.App. ton v. 549 P.2d ages helpful (1976); award. Additional facts as see Sterling also Basko v. understanding Inc., particular (2d issues Drug, Cir.1969); will 416 F.2d 417 Products, Inc., reports v. Avon substantially outweighed 155 Colo. these Howard (1964); McEwen v. Or- danger prejudice, of unfair confu- Corp., 270 Or. tho Pharmaceutical sion, misleading or the likelihood of addition, a manu- P.2d 522 Id. jury. at 1261. We find no abuse of strictly may liable to facturer seller part discretion on the of the trial court in the failure to users of a when admitting reports. the adverse reaction warnings provide adequate renders unreasonably dan- product defective and Computer Robins’ B. Records—Exhibit Engi- Heron E.g., Anderson v. gerous. Co., Inc., neering 604 P.2d exclusion, Relying hearsay on the rule of Supply (1979) curiam); Union Co. (per 674 challenges Robins the admission into evi- Pust, 196 Colo. 162, (1978); v. 583 P.2d 276 dence computer printout of an extensive Corp., 190 Hiigel v. General Motors Colo. (Exhibit 559) reports compiled by of Robins (1975); Hamilton, 57, 544 P.2d 983 37 Colo. septic of experienced by abortions IUD generally 375, 1099; see App. 549 P.2d marketing users since the of the in shield Annot., as Basis Lia- Failure Warn of reports kept 1971. These were and record- Liability bility Under Doctrine Strict ed in Robins’ files Dr. Ellen Preston as Tort, in (1973). 53 A.L.R.3d 239 The ad- part regular of her prod- duties as Robins’ legally reports reaction constituted verse 559, uct monitor for the shield. as Exhibit of notice to relevant evidence on the issue acknowledged by Robins, prepared by dangerous charac- potentially Robins of the physi- its staff and with the assistance of a knowledge ter of the shield. Robins’ paid cian who served aas consultant to the reported consequences from the adverse company. The compo- exhibit contained a statisti- significant use of the shield was a that, compilation abortions, by failing reported septic cal nent of Palmer’s claim dangers give warning subsequent marketing eliminate these or to to the of the shield them, prevented 1971, Robins her and her in that were associated with the use physician making from an informed deci- type of the or other shield of IUD. Exhibit contracep- the the sion on use of shield as reported septic 559 correlated the abortions reports tive device. adverse reaction type patient with the of IUD used rendered the existence of notice of a dan- and set forth the source and date of the gerous probable or defective more report, together in most instances with it. See with the evidence than without patient’s name and the date and location of Jackson, 249, Bush v. 191 Colo. 552 P.2d the incident. collected this data Robins (1976). 509 principally physicians, many from of whom responding company’s were “Dear Although reaction re the adverse May Doctor letter” sent out in In ports included references to untoward con report some instances the source of the abortions, septic sequences other than official, governmental usually was a health reported nature of these other incidents did physician, working for the Food and impair legal relevancy of the evi Drug Administration or the Center for Dis- proba dence. These other incidents were ease Control. other instances something tive notice to Robins persons sources of information were other product. Ap might well be amiss with its physician, repre- than a such as a Robins relevancy pellate review of a decision such physi- sentative contact with various this is “we must assume limited because cians, septic or the woman who suffered a probative the maximum value that a rea abortion, spouse, attorney her or other might give sonable fact finder the evidence person acting computer on her behalf. The prejudice and the minimum unfair to be Lowe, reasonably expected.” People septic records v. 660 showed that 304 incidents of 1261, (Colo.1983). Robins, reported P.2d 1264 It was within abortion were all but special province occurring few of the trial court of them the United States. probative reported septic determine whether value 257 or abortions 85% shield, using business; (3) involved women regular 39 or 12¥2 made in the course of IUD, involved some reasonably % other 8 or 2V2 contemporaneous reported type incidents the recorded; (4) % IUD unavailability event was unknown. entrant; (5) personal the entrant’s knowledge of the event recorded. See The trial court considered the admission Note, Business Records as Evidence in hearing. of Exhibit 559 at an in camera At Colorado, 35 U.Colo.L.Rev. hearing alia, argued, Palmer inter law, however, Colorado case has taken a qualified the exhibit as a business record of approach less technical to the business and, addition, satisfied the essen- exception. generally People records See tial criteria of trustworthiness and necessi- Stribel, (1980); 199 Colo. 609 P.2d 113 ty applicable hearsay excep- to traditional Empire Diesel, Brown, Inc. v. 146 Colo. Robins, although expressly tions. stating (1961); P.2d Rocky Mountain that it was an authentic Robins document Co., Beverage, Brewing Inc. v. Walter trustworthy,” contended “[i]t (1940); Colo. 108 P.2d 885 Powell v. lay proper that Palmer had failed to Brady, Colo.App. satisfying foundation the business records (1972), grounds on other sub nom. exception. The court was satisfied that aff'd Denver, Brady v. 508 P.2d compiled Robins had the document in con- (1973). nection with its business and ruled that the qualified document as a business record. The exception, business records like court, however, The limited the admissibili- hearsay exceptions, other predicated is on ty of the exhibit to the issue of notice with considerations of trustworthiness and ne respect septic predating abortions Palm- cessity. may reasonably It be assumed and, also, injuries er’s to the statistical that a accurately business will record infor significance of all entries in the exhibit to mation essential to its function in the mar causation, the issue of defect and and so ketplace. Judge As Learned Hand noted jury. instructed the years ago in Bonding Massachusetts and We are satisfied that quali- the exhibit Co., Insurance Co. v. Norwich Pharmacal fied for hearsay admission under two ex- (2d Cir.1927): 18 F.2d ceptions applicable that were to the trial of affairs, “The routine of modern mercan- this case. limiting Because the trial court’s tile, industrial, financial and is conducted unduly instruction restricted the incidents extreme with so a division of labor that septic of predating abortion November proved the transactions cannot be at first notice, to the of issue rather than hand without the persons, concurrence of admitting the entire on exhibit the substan- each of whom can no more contribute causation, tive issues of defect and slight part, than a part and that not respect error in this worked to the benefit dependent memory on his of the event. of Robins and prejudi- cannot be deemed Records, alone, and records are their ade- cial. quate repository, practice are in and ac- Exception. The Business Records cepted upon as accurate the faith of the case, At the time of the trial in itself, routine self-consistency and of the yet Colorado Rules of Evidence had not of their they contents. Unless can be become effective Colorado had no busi- used in court without the calling task of ness admissibility records statute. The of those stages part who at all had a in the computer therefore, printout, must be recorded, nobody transactions need ever controlling resolved under case law. pay debt, only a if his creditor does a early large enough The posed rigid common law foun- business. That there requirements dation for the should admission of not be checks and assurances of evidence under the excep- veracity business records we suggest; do not it is indeed proponent tion. The possible expose record was genuine adversaries to (1) required original entry; (2) to show: an danger, but to continue system a of rules, originally designed monitoring to relieve of business in of small effects its incompetence as shopkeepers from their product, prescription own device that it witnesses, present day into transactions placed had on the market. generally See egg burning by is to cook down Rheingold, Liability Products Ethi- —The house....” Drug Liability, cal Manufacturer’s Rutgers project L.Rev. 947 Robins’ computerized In the case of business coordinator the shield and records, frequently prepared by are gathered consultant certain information re- on the business basis information product, lated its so far sources, practi- from transmitted numerous shows, record this information was accu- cal considerations trustworthiness rately entered Although when received. necessity come to the fore. The circum- septic the entries probability lies related oc- stantial abortions trustworthiness curring since usually marketing the fact these records will the shield in very degree type sought care this was the made with sufficient data Robins, accuracy by permit as will them to be as evidenced in its “Dear Doctor upon purposes. May relied for commercial letter” of 1974. What stands out as principle equally necessity present, particularly significant reliability inconvenience, if namely, impossi- the exhibit is the source of information for bility, summoning each individual whose septic the entries. Of the incidents of IUD, information has been entered the final abortion associated with an 273 or mind, record. With these considerations in by (M.D.s reported physicians were or 90% computer generated courts have held that D.O.s), non-physician the other 10% qualify business records will for the officials, victims, busi- federal health the vic- exception supported by ness record when lawyer, persons acting tim’s other (1) adequate showing foundation that: professional obliga- victim’s behalf. The computer made entries were a busi- physicians report tion of health serious business; regular ness in the course of its widely pre- hazards associated with a used (2) making participating those in the record is, view, scription equally device in our as (3) business; in acting were the routine of compelling any report as duty business accurate; input procedures (4) the the were here, where, especially the as business enti- a entries were made within time reasonable type ty very from solicited data occurrence; (5) after the the informa- profession.1 Moreover, physicians medical tion aby person was transmitted reliable training by experience would be the knowledge with reported. of the event reliable source of on most information See, e.g., King v. ex rel. State Murdock septic a whether abortion did occur and Acceptance (Miss. Corp., 222 So.2d 393 place particular type what IUD was in at 1969); Seib, Transport Indemnity Co. v. percent- that time. The fact that a small (1965); 178 Neb. 132 871 N.W.2d Mon originated age of entries other from Savings arch Federal & Loan v. Ass’n impair sources does not the overall reliabili- Genser, N.J.Super. 383 475 A.2d Also, ty of the exhibit. it not be must (1977); Fidelity also see United States overlooked that trust- Robins conceded the Guaranty Young Co. v. Cam Life worthiness the records under considera- Inc., paign, Colo.App, 600 P.2d tion. This concession would have been not (1979). Robins, keeper, if a made record har- any computer In this records bored doubt about the overall reliabili- case were kept by part regular ty sought its Robins as course of the data it had and collected. itself, significant Equally reporting septic involving to the factor of physician abortions the shield a that, infra, 4-2- prescribed as we hold in Part IIIA section who that device would 607(3)(a) con- Uniform Commercial Code significant legal reporting have interest in templates physician charges who a fee Robins, incident to the manufacturer-seller of prescribing inserting report IUD will an product. Thus, warranty defect to the in the case seller. §§ (Chadbourn rev. 1421-1422 at 253-54

Finally, point out that the records we 1974). against question were offered and received not party preparing them. We are thus possess all computer records dealing self-serving pre- information with essential for admission the characteristics litiga- party anticipation

pared hearsay exception previ general under Hoffman, 318 U.S. tion. See Palmer by Colorado ease law. ously sanctioned 63 S.Ct. 87 L.Ed. 645 guarantees The exhibit contains sufficient trustworthiness, having prepared been the record Under the state of before in order to deter under Robins’ direction us, computer are we satisfied dangerous prod mine the effects of its own qualified under the common law records it, placed had on the market. The uct and, hearsay exception records business reliability of the sources of the information subject anything, if should not have been seriously questioned, pre cannot and as limiting instruction the court. Hav to a noted, viously expressly conceded ing received into evidence as business been Finally, the trustworthiness of exhibit. records, ad the records should have been the admission of the information in the mitted for the truth of the matters asserted and summarized form was the tabulated therein as relevant to issues of only practical way present this evidence case. jury. to the The difficulties associated Hearsay Exception. 2. The General calling every each and of 304 source case, At the time of the trial of this Colora- septic involving reports of abortions IUDs recognized general hearsay do case law would have been insurmountable. We practical exception based on considerations that the trial court therefore conclude did necessity. of trustworthiness and In Good admitting err in Exhibit 559 under the Co., 70, 80-81, Colo.App. v. A.B. Chance hearsay exception then in general exist (1977), ap- 565 P.2d the court of ence. peals, considering admissibility in a wrongful death action of an economist’s Dr. Article —Exhibit 56 C. Christian’s opinion inflationary trends based on sta- publications tistics contained in of various Robins asserts that the trial court erred governmental agencies, stated: evidence, admitting hearsay into over its exception hearsay “An rule is published by Dr. objection, article Chris- proffered warranted where the evidence tian in 1974 the American Journal of here, trustworthy, necessity is as and Gynecology entitled and Obstetrics compels its admission.... The time In- “Maternal Deaths Associated with an spans encompassed by these statistics trauterine Device.” This article described lengthy, were and the sources from pregnant of twelve women case histories they gathered which were are numerous prior who had been fitted with IUDs to broad-based, making direct testimo- pregnancy their and had either died as a ny persons from first-hand knowl- with result of massive uterine infection or suf- edge fig- writings of the from which the septic during preg- fered abortions their extracted, practical impossi- ures were Dr. in the nancies. Christian stated article addition, information, bility. ... In such completely that the case studies were not obtainable, possibly even if could not urgency detailed due to a sense of on his enlightened jury or assisted the have part express possi- his concern about the weighing expert’s testimony.” the problems design ble associated with the characteristics the shield. five of the This rationale was later followed in Colora- Aviation, personally case studies Dr. Christian con- Murphy, Colo.App. Inc. v. do 237, (1978), patients and in People 588 P.2d 877 sulted the other seven Romero, hospital Colo.App. 593 P.2d 365 he reviewed records or conferred (1978). Wigmore, attending physicians. also 5 Evidence with the The article See J. conclusions, court, ruling drew no hard and fast but The trial that the re port upon sources, expressed following based reliable concerns: over objection ruled the admitted article. may something if “One wonders there Although particular purpose for admit design shield-type about device ting the article was not articulated that allows vascular dissemination of in- court, apparently it was admitted as a basis might that locally fection otherwise be expert opinion for the testimony plain that regard, easy contained. In this it is tiff’s counsel intended to elicit from Dr. pronglike protrusions visualize that the that, Christian.2 We conclude while the periphery on the of the could device trial court should have admitted the exhibit apparent make this difference in the inci- only for serving the limited as a purpose problems dence of .compared such when basis for Dr. expert opinion Christian’s tes to the smooth-surfaced devices. Such timony, the admission of the article without conjecture that, just certainly is no limiting instruction was not reversible experimental say data exists to particular error under the circumstances of particular design likely is more or less this case. be associated dissemination of infec- We past expert have held in the tion. may testify witnesses to information re- larger ques- “This all invites the much upon ceived from they rely others tion of whether there should be more reaching opinions. their E.g., Houser v. rigid evaluation and control of medical Eckhardt, 168 Colo. Certainly, if devices. there were five (1969). simply recognition This is type botulism deaths from one of mush- expert opinions fact “are the soup, Drug room the Food and Adminis- judgmental process of a which combines put tration would do more than out a education, training, experience, and hear- questionnaire. say intelligent information to arrive at an “Any pregnancy in- associated with an reasoned conclusion.” Berglund- DURA v. trauterine device must be followed most Cherne, 193 Colo. P.2d circumspectly, and we must be constant- party When third assertions ly slightest symptom alert to the or com- purpose serving are received as plaint. spotting Painless dark brown expert opinion, basis for the asser- cases, reported common to most of the tions are not evidence of the matters symptoms apparently but unrelated as presented, merely explanatory but throat, ear, painful sore or flu heralded itself, opinion enabling thus sepsis pa- the fatal in certain of the weigh opinion light of its basis. tients.” Houser, 664; 450 P.2d § (2d on Evidence 15 at 34-36 McCormick object Robins did not to the admission of ed.1972). the article insofar as it five related personal Christian, cases of which Dr. Christian had Dr. who was received as an knowledge, claimed that expert gynecolo- but all references witness obstetrics and gy, to the other seven cases were inadmissible described the content of his 1974article hearsay. professional and also described literature ruling analyzed 2. The trial court in its the ad- Daikon Shield but with other IUDs—that the missibility permissi- questions issue in terms of both the nature of the article is to raise expert properly rely purported problem. ble data on which an could about a And I haven’t—I offering opinion testimony hearsay before, in and the have seen the article and read it but I nature of the article. It then concluded: don’t remember all the details of it now. But from what the doctor has described the in “But, my understanding it would be that as article, the Court would find that the material long reliable, type hearsay as the that’s relied on is reasonably that went into the article is reli- reliability in the sense of for the here, able and that I will allow the article into particular opinion being given ap- —and may testify evidence and he about the facts parently, expressing set he of a observation IUDs, forth in the article.” problem only just with the by phenomenon septic products, read him on the to all of Robins’ favorable includ- shield, ing public abortions various internal documents and to educate the on him, by including availability products. of Robins reviewed these We find (Exhibit 559) computer ruling. records had error in the trial which no court’s previously been admitted into evidence. Relevancy is a threshold stan testimony All this was offered as founda- evidentiary offerings dard which all must opinions tion for various elicited from Dr. meet. Evidence is relevant when it renders including following: Christian that the probable the claimed inference more than it tailstring phalange-like projections and the See, Bush, e.g., would be without it. high of the shield contributed to the inci- Colo, at 552 P.2d at 511. The material abortion; that, septic dence of on his based exemplary damages elements of an claim hospital records, review of Palmer’s she did 13-21-102, are set in forth section 6 C.R.S. septic suffer a abortion on November (1973), which puni authorizes an award of 1973; septic and that the cause of Palmer’s damages injury plain tive where the previ- abortion was the IUD that had been by fraud, tiff is “attended circumstances of ously place inserted and was still on insult, malice or or a wanton and reckless Thus, November it is clear from disregard injured party’s rights of the only a review of the entire that the record feelings.” punitive In the context of a evidentiary by function Dr. served Chris- claim, damages relevancy threshold is present adequate tian’s article was to satisfied if the offered evidence tends to opinions foundation for the ultimate ex- probable make more than not the existence pressed by him on the witness stand. statutory recog elements. Although the trial court should have in- relevancy, of this nition standard of courts structed the the article was ad- acknowledged have purpose serving mitted for the limited as “[ejvidence of other acts of defendant underlying one of the bases for Dr. Chris- alleged than those and for dam opinions, tian’s no such instruction was re- ages sought, preceding are both as well quested by Moreover, defense counsel. acts, following particular is admis (Exhibit computer review records exemplary sible under an issue of dam 559), which had been admitted into evi- ages if particular so connected with the prior dence testimony, Dr. Christian’s tending acts as to show defendant’s dis most, all, discloses that if not of the inci- position, intention or motive in the com reported dents in Dr. Christian’s article and particular mission of the acts for which by testimony described him in his damages had been are claimed.” Charles F. Cur Hedrick, ry computer included and Co. v. Robins’ tabula- 378 S.W.2d give limiting (Mo.1964). tion. The failure to instruc- previously tion on evidence which had been also, e.g., Oehler, See Kane 62 Mont. admitted and properly indeed was admissi- (1922); see also Voltube 205 P. 245 ble as substantive evidence of the truth of Corp. Products, Bv. & C Insulation possibly matters asserted could not Super. N.J. 89 A.2d 713 rights have affected the substantial challenged evidence was rele case, particularly defendant no when vant to exemplary Palmer’s claim for dam limiting such request- instruction was ever ages. This evidence demonstrated a mo ed Any defendant. error in this part profit tive Robins to respect, therefore, must be deemed harm- making exaggerated regarding statements 35(e). less under C.A.R. safety and efficacy product. of its Lay Publicity Robins’ D. Campaign testimony There was from a former Rob argues that the trial employee court erred ins’ pharmacist and licensed overruling relevancy objection lay its publicity campaign to evi- prescription for a relating hiring item, dence shield, its of an advertis- such “improper as the ing agency encourage publicity dangerous.” media Although president Robins’ only one isolated say on to that this was deposition testi- point in his conceded very little mean- case and could have but ignored this salu- company itself mony, the respect He ing to IUD use. lay publici- of itself tary standard. Evidence pa- felt that decisions as to therefore, furthermore tended to establish campaign, ty management decisions for the of tient were for an award statutory predicate FDA.” profession and not the practicing damages. punitive portions of the memoran Those E. Dr. Preston’s by the trial court were re dum excluded Memorandum —Exhibit opinion on the only flective of Dr. Reid’s HHH investiga FDA scope efficacy of the trial court’s error in the claims tion, Robins the issues of a matter irrelevant HHH, portion of Exhibit addition, of a exclusion this case. these excluded by Dr. memorandum written was a classical hear statements of Dr. Reid were Preston, project coordinator Robins’ any recog Ellen say clearly inadmissible under Dr. memorandum See, In the e.g., for the shield. Stone Union exception. nized telephone Co., described June Fire Insurance Preston 106 Colo. Reid of Tuc- Dr. Duncan Manby v. Sweet Invest (1940);

conversation with P.2d 241 Arizona, reporting his Co., son, in course of ment 242 P. 51 The court to Robins. septic abortion Warranty III. The Claims following part of Exhibit admitted HHH, objection, as evidence Palmer’s over arguments in raises three connec- Robins alleged of mind and of Robins’ state Palmer’s claims for breach tion with investiga- in its it encountered difficulties warranty warranty, implied express of adverse reactions: tion warranty of merchantability, implied followup my in Dr. Reid “I called particular purpose, all fitness for a he had 1973 to which letter of June jury. We submitted which were that Dr. Reid indicated responded. separately and arguments consider these in- further intend to become he did not merit. them to be without find or the us in this situation with volved A. Notice I be- Drug Food and Administration. trial court should argues that the misinterpreted the Dr. Reid perhaps lieve in favor on Palm- a verdict its have directed clarify wrote, attempted to and I letter I the evidence warranty claims because er’s little success.” this but with Palmer, to establish was insufficient as inadmissible court excluded The trial gave recovery, precedent to as a condition the memoran- hearsay the remainder of any to Robins breach notice reasonable dum, which stated: warranty. very distaste- found it Reid said he “Dr. 4-2-607(3)(a) of the Uni Section Drug Administra- Food and ful that the 4-1-101 to 4-11- Code form Commercial [§§ attempt to sin- or concentrate tion would Supp.)] states (1973 & C.R.S. particular action IUD for gle any out one accepted has “[wjhere a tender been I problems. their they all had because a reasonable buyer must within ... [t]he knew the far as we that so indicated have dis or should he discovers time after IUDs, and since looking at all FDA was breach, notify the seller any covered particu- of this heard the rumor they had remedy.” from or be barred breach receiving interested lar case were “giving or “notification” process again indicated Dr. Reid more details. described, pertinent part, notice” is getting fur- intention of had no that he 4-1-201(26) follows: section if the FDA wanted involved and ther ‘gives’ a notice or person “A ‘notifies’ all IUDs to discuss to call a conference by taking such another notification to happy to be setting he would the same reasonably required to may steps as Dr. Reid went manner. cooperate in this

206 ordinary rule,’

inform the other justifies course and at least until he actually whether not such other comes legal has advice it will occur to him person to know of it. A ‘receives’ a give to notice to one with whom he has (a) notice or notification when: It comes dealings.” Prosser, had no Hand- W. to his attention....” § book the Law (4th Torts 97 at 655 requirement The notice ed.1971). in a breach war ranty (1) purposes: action serves three af addition, standpoint from the of the re fording opportunity the seller an to correct manufacturer, mote notice to the immedi defect; any (2) affording op the seller an seller, ate ordinary events, in the course of portunity prepare negotiation to and will inure to the manufacturer’s benefit. (3) litigation; providing the seller a This is so because the “Code envisions that safeguard against being stale claims as when the consumer’s notice of breach is investigate serted after it is too late to given seller, to his immediate person such Co., them. Prutch v. Ford Motor 618 P.2d preserve right may action he have (Colo.1980). Compliance 661 with the implied warranty breach of give will requirement notice generally is a condition seller, notice to his immediate and so on precedent recovery for a breach of war upstream point until the seminal ranty claim under the Uniform Commercial Goldstein, distributive chain is reached.” E.g., Double Bar Pine Code. Hoffman’s Ill.App. 62 3d at 19 Ill.Dec. at Nursery Fyke, (Colo.App. 633 P.2d 516 N.E.2d at sequential 1087. This notice re- 1981); Rick’s Restaurant v. McFann En- quirement provide is thus calculated to terprises, Colo.App. 545, remote manufacturer with notice and an (1977); Anderson, 4 R. Commer- Uniform opportunity defect, to correct where § cial Code 2-607:19 (3d ed.1983). possible, investigate and to claims that 4-2-607(3)(a) While section pro might litigation. eventuate vides for notification to the seller “[w]here 4-2-103(l)(d) Section the Uniform accepted,” a tender has been we construe Commercial Code defines a seller as “a “seller,” section, the word as used in that person who sells or contracts to sell only to refer to the immediate seller who goods.” Since the cost of the shield to Dr. Gold- goods buyer. tendered the to the Petri was included in his fee for the inser- Co., stein v. G.D. Searle & Ill.App. 3d Palmer, tion of that device in Dr. Petri in 19 Ill.Dec. 378 N.E.2d 1083 this case was Palmer’s immediate seller. construction, long Under this as the aware, did, Dr. Petri became before Palmer buyer given has notice of the defect to his that the responsible inju- shield was for her seller, or her immediate no further notifica ries. quite conclusively The evidence es- beyond tion to those distributors imme 8, 1973, tablishes that on December Dr. Id.; see also required. diate seller diagnosed Petri “sep- Palmer’s condition as Prutch, 618 P.2d 657. perspec From the secondary tic abortion to IUD infection.” consumer, unsophisticated tive of the grave The subsequent uterine infection and interpretation promotes of the statute fair complications which Palmer manifested on by requiring give ness the consumer to 18, 1973, November were the source of this only party notice with whom the diagnosis. It Dr. testimony Petri’s consumer has dealt: opinion regard that his to the cause of parties “As between the immediate Palmer’s condition “solidified” with the sale, requirement] notice is a [the passage learned, through time after he rule, designed pro- sound commercial literature, medical septic threat of against unduly tect delayed seller posed by design abortion damages. applied per- claims for As characteris- tics of the shield. injuries, prescribed sonal Since no and notice to a remote form Industries, seller, see Comet booby-trap required, it of notice is becomes a for the consumer is seldom Inc. v. Best unwary. Corp., Plastic Container injured ‘steeped practice in the F.Supp. (D.Colo.1963); business Hoffman’s 516, Nursery, Express Warranty Bar P.2d B. Double Pine 633 establishing there is sufficient evidence challenges the Robins submission of gave to Dr. of the Palmer notice Petri that express warranty Palmer’s claim to the that of the shield and defective character because, view, jury in its there was insuffi- attention,” his within this notice “came to cient evidence to establish that Robins’ 4-1-201(26), meaning of when the section representations part claimed of constituted presented herself to him in a life- Palmer resulting transaction the Palmer’s selec- 18, threatening on condition November tion, purchase, In and use of the shield. following. 1973, days immediately the submitting express warranty Palmer’s jury claim to the the trial court instructed that, We conclude in view thus Palmer, recover, the that in order to require the notice of our construction of by preponderance had to establish of the 4-2-607(3)(a) the Uni ment in section of alia, that, inter evidence defendant “[t]he Code, Robins’ motion form Commercial expressly the in- warranted Daikon Shield We verdict not well taken. directed plaintiff’s into the serted uterus to be one however, trial passing, that 'the note following: the or more of require court, limiting the notice instead of IUD’; Superior a. ‘The Modern seller, ment to the immediate instructed 1.1%’; pregnancy b. ‘lowest rate ... obligation under jury that Palmer was an ‘safe’; c. Robins, the manu give notice to remote ‘prevent produc- pregnancy d. without facturer, she within a reasonable time after ing any body, general effects on the have or should discovered discovered ” or blood brain.’ warranty. breach of While this instruction 4-2-313(1) of the Com- Section Uniform stringent placed Palmer a burden on more mercial Code states: law, any required by error in that than that “(a) clearly Any prom- must of or regard Robins and affirmation fact benefited by buyer made the seller to the which regarded as harmless.3 ise be (’“A 4-2-607(3)(a), 4 follows: see also section comment The trial court’s instruction stated as a retail Palmer, reasonable time’ for notification from plaintiff, M. within "The Carie by judged is to different standards consumer she time after discovered reasonable extended, for the any express that in his case it would be so should have discovered breach of designed implied warranty, requiring is to de- must have notified notification or Defendant, rule Co., Inc., faith, good deprive A.H. commercial bad not to feat may she recover her claims remedy."). breach or the context faith consumer of his implied warranty. lawsuit, express or for breach of purchase, filing of a of a retail depends circumstances, What amounts to a reasonable time may be sufficient under some upon circumstances as disclosed the facts and Goldstein, provide 62 notice a defendant. See case. the evidence in this 1083; 344, 208, Ill.App.3d N.E.2d Ill.Dec. 378 19 may particu- or written. No “Notice be oral Fur- Maybank, ther, 273 S.E.2d 681. 302 N.C. required. is if it is Notice sufficient lar form evidence in the record there substantial alleged breach informs the Defendant establishing prior to date of Palm- that even warranty.” septic had of similar er’s abortion Robins notice stringent notice test of Even under the more opportunity complaints was afforded an instruction, a review of the record stated in the investigate potential septic abortions circumstan- was substantial indicates there Finally, though posed by Rob- the shield. even support Robins’ the denial of tial evidence until she ins was not notified of Palmer’s claim notice for a directed verdict. Whether motion years approximately after two filed her lawsuit question deter- of fact to be is "reasonable” is a injury, that it was Robins does not contend totality of circumstances. from the mined injury relating evidence to her somehow denied Co., Ill.App.3d & v. G.D.Searle Goldstein might had available otherwise have been Since N.E.2d Ill.Dec. notice, allege nor does Robins there been earlier ordinarily injured lay would not consumer any prejudiced manner it was other requirement, reasonable- know notice actually claim. it received of Palmer’s notice be viewed under notice should ness (10th Pressey, 195 F.2d 343 See Schlottman v. than that exacted more relaxed standard Goldstein, Cir.1952); Ill.App.3d 19 Ill. purchasers. Maybank v. S.S. See commercial Dec. 378 N.E.2d 1083. Co., (1981); Kresge 273 S.E.2d 681 302 N.C. goods part relates to the part and becomes have essential Palmer’s decision to bargain the basis of the an ex- creates body that device inserted in her and to warranty press goods that the shall con- using it as continue a safe and effective promise. form to the affirmation or contraception. method of “(b) Any description goods part is made of the basis of Implied Warranties C. bargain express warranty creates an that Robins contends that the trial court erred goods descrip- shall the the conform to submitting in to jury the Palmer’s claims tion.” implied for of warranty breach fitness of express It is not an necessary for particular purpose for a implied and war- warranty that “the seller use formal words ranty because, merchantability of accord- ‘guarantee’ as ‘warrant’ or or that such he Robins, ing to there was no evidence estab- specific a intention to make a warran have lishing particular purpose that the for ty, purporting a but ... statement to be which Palmer selected the dif- shield was merely opinion the seller’s commenda or ferent from its ordinary purpose. goods the a

tion of does not create warran § 4-2-313(2). particular by a contract for the ty.” goods Whether sale of A respect goods “a merchant with of express warranty statement constitutes an that See, e.g., generally gives implied warranty kind” rise to an is issue of fact. of Peck, Fritsche, merchantability, Ltd. v. Glen properly P.2d 414 unless excluded § (Colo.App.1981); 4-2-314(1). or modified. Stroh v. American Recre Merchantabili and ty, here, Corp., ation Mobile Home pertinent goods as means 35 Colo. that the ordinary fit for the App. purposes 530 P.2d 989 When a for “[a]re § warranty created, goods used,” which 4-2- has been it “extends such are 314(2)(c), contained, reasonably adequately pack any person may expect who “[a]re § use, labeled,” consume, aged, 4-2-314(2)(e), by ed to or and and be affected the “[ejonform by promises to the goods injured and who breach or affirmations of [was] § warranty.” of fact on the if 4-2-318. made container or label § 4-2-314(2)(f). any,” implied An warran express warranty Palmer's claim ty particular for a purpose fitness arises properly jury. was submitted to the Palm “[wjhere the seller at the time of contract Petri, pre er testified that Dr. before ing any particular pur has reason to know shield, scribing the indicated to her that the pose goods required for which the are superior IUD, was a shield safer than the buyer relying that the on the skill seller’s pill, control birth effective in 98.9% judgment or to select or furnish suitable preventing pregnancy. Petri Dr. had § goods.” 4-2-315. As noted in comment drawn this information from review of 2 to section 4-2-315: literature, Robins’ conversations with Rob ‘particular purpose’ “A differs from representatives, ins’ and the Davis article. ordinary purpose goods for which the subsequently Palmer also read literature in envisages specific are used it printed by the shield’s manufacturer which buyer by peculiar use which is safety reiterated and effectiveness nature his business whereas the ordi- qualify These statements under claims. nary purposes goods which are used 4-2-313(1) section as affirmations fact envisaged concept are those in the descriptions which upon Palm merchantability go to uses are shield, using opposed er relied as customarily goods ques- made of the pill, control as a birth method contra tion.” evidence, ception. There was sufficient view, support say, however, our conclu implied reasonable This is not to representa sion merchantability Robins’ warranties and fitness concerning superiority, particular purpose mutually tions effective for a are ex- ness, safety formed an contrary, shield clusive. On Colorado case only prevent pregnancy, may the shield not recognizes that these warranties law ordinary purpose evidence to for which an IUD is there is sufficient coexist when warranty. selected, particular purpose creation of each for the support but also Battery v. Elec- Co. Standard See Westric providing contracep- her with “safe” Co., Inc., 482 F.2d 1307 (10th Cir.1973) tric device that averted such hazards tive (under Commercial Code the Uniform stroke, clotting, and other harmful vascular Colorado, giving of instruc- adopted body. ques- effects on the There can be no of merchanta- implied warranties tions or had tion that Robins knew reason to particular purpose fitness for bility and special particular safety know of the Dahlberg, Jacobson appropriate); product, features to its since attributed (1970) (recogniz- premised Palmer their both Dr. Petri and Act, implied that, ing under Uniform Sales representations decisions on affirmative merchantability and fitness warranties made Robins. Nor can there be purpose mutually exclu- particular question upon Palmer’s reliance about Rob- Finance, Burger, Inc. v. sive); Lease ins to furnish a fulfill which would (1977) (under 107, P.2d 857 Colo.App. 575 particular purposes. these these cir- Under Code, implied warran- Uniform Commercial cumstances, jury the the submission to par- merchantability and fitness for ties of implied the dual warranties of fitness for a coexist). may purpose ticular merchantability particular purpose and was in sufficient evidence There was justified. of both justify case to the submission

this Sufficiency Evidence Dr. Petri’s warranty jury. claims to the IV. Negligence Claim advising patients about practice usual them contraception to inform about was argues negligence that Palmer’s pill the and also to effectiveness of the to claim should not have been submitted con possible the adverse warn them about testimony nec- expert the because use, stroke, as vascu sequences of its such essary the standard of care to establish coronary in later clotting, and occlusion lar pharma- applicable reasonably prudent to a procedure Petri life. Dr. followed Palmer, according company and ceutical his office on Janu Palmer when she visited Robins, present any such evidence. failed to 16, rejected pill the as a Palmer ary argument. unpersuaded by Robins’ We are appre of her contraceptive method because negligence under a To recover safety its and the serious hensions over that the de theory, plaintiff must show it. It was problems associated with health duty care owed to fendant breached Palmer, according that Dr. point, at this thereby plain plaintiff and caused it the shield because Petri recommended Wilson, Franklin v. E.g., damages. tiff’s as effective as and almost was safer Roessler (1966); 161 422 P.2d 51 Colo. recommendation was pill. Dr. Petri’s O’Brien, P.2d 901 v. 119 Colo. representations concern Robins’ based on (1949). duty to use reasonable care legal A safety of the shield as well ing the features risk of response to a foreseeable arises pregnancy rate associated with as 1.1% Metropolitan Re Gas injury to others. Palmer, Dr. Petri’s relying on its use. Kulik, Service, pair Inc. v. 621 P.2d 313 recommendation, shield because chose the determines, (Colo.1980). court as “The than other it safer believed would be she law, scope of existence and matter of al contraception and would be forms is, plaintiff’s duty whether pill preventing as the most as effective —that infringed by the that has been interest evidence, when viewed pregnancy. This legal entitled to the defendant is conduct of Palmer and all most light favorable Id. at 317. When the stan protection.” are drawn inferences therefrom reasonable questions beyond the Watson, involves dard of care e.g., v. favor, Gossard in her ordinary persons, expert tes competence of (1950), is sufficient 221 P.2d 353 Colo. establish that timony may required that she selected support Palmer’s claim cases, standard. malpractice applicable pharmaceu- medical care to a reasonable example, scope physician’s of a company specialized tical does not entail duty only is often determinable on the ba- knowledge unique to or skill a scientific expert testimony precisely sis of because discipline beyond knowledge ordinary jurors would be unfamiliar with experience average jury. On the special knowledge required and skill contrary, negligence resolution of the issue prac- the exercise of reasonable care in the turns on an assessment of evidence relat- See, e.g., Bloskas v. Mur- tice of medicine. ing to Robins’ decision to market the shield ray, 646 P.2d 907 (Colo.1982); Mallett v. testing with a minimum of and without a Pirkey, (1970). Colo. warning potential as to its actual or health however, malpractice, Even in medical hazards, and to continue the distribution of regarded the standard of when care “is its notwithstanding device information knowledge laymen, within common tending significant dangers to indicate as- surgeon wrong as where the saws off the product. sociated with the The ultimate leg, injury part body or there is to a determination of whether Robins’ conduct field, operative not within the it has been comported degree with that of care which a jury may negligence held that infer reasonably prudent drug manufacturer any expert.” without the aid of W. Pros- would use under the same or similar cir- § ser, Handbook the Law Torts 32 at cumstances was well within the ken of (4th ed.1971); see Farrah v. Pat- 164-65 Thus, persons ordinary intelligence. ex- ton, (1936); Daly 59 P.2d Colo. pert opinion evidence was not essential to Lininger, 288 P. 633 negligence.4 Palmer’s claim in In this case the standard of applicable degree

care to Robins was “that Jury Negligence Instructions: Per V. reasonably prudent drug of care which a Se and the Burden of Proof manufacturer would use under the same or A. Negligence Per Se Hamilton, similar circumstances.” Colo.App. Negli challenges at 549 P.2d at 1106. Robins the trial court’s in- gence in authorizing this context means “a failure to do struction to return a reasonably prudent drug an act which a in negli- verdict favor of Palmer on her do, doing gence manufacturer would or the if an claim it found that Robins violated reasonably prudent drug 25-5-403(l)(a) act which a manu section of the Colorado Food §§ do, Act, 25-5-425, Drug facturer would not under the same or and 25-5-401 to Id. The (1982), question similar circumstances.” proxi- C.R.S. and that this violation mately injuries.5 whether Robins breached the standard of caused Palmer’s Robins 4. In connection with its claim that expert testi- when read and considered with all other in- care, mony required was to establish the standard of structions on the standard of did not con- Robins, applicable pharmaceutical applicable fuse the care to a reasonable standard of care namely, reasonably company, argues prudent pharma- Robins that two instructions of a company. given by duty ceutical on the the trial court to warn applicable confused the standard of care to this negligence per 5. The instruction on se read as essence, case. Instruction No. in stated that follows: obliged is to use manufacturer reasonable injuries question "At the time of the profession danger care to warn the medical of a case, following state statutes of the reasonably which it knows or is should know State of Colorado were in full force and ef- product danger and associated with its is fect: an such that it would not be obvious to ordinari- (1) following '25-5-403. causing The [ ] acts and the ly competent physician dispensing product. prohibit- thereof within this state are warning Instruction No. 33 stated that a is not ed: danger readily ap- required when the would be manufacture, (a) sale, delivery The or or parent ordinarily competent obvious to an and food, holding offering any or for sale of physician product from the nature of the itself device, drug, or cosmetic that is adulterated ordinarily or from other information which an misbranded; or ...' reasonably competent physician could be ex- instructions, pected to know. We believe these by prescription through distributed argues the trial court should not have were (1) practitioners lay public. medical We given this instruction for three reasons: find no basis the act for this assertion. apply prescription the act does not to a prohibition 25-5-403(l)(a) of section ex- device, shield; (2) the shield such as manufacture, sale, tends to or deliv- exemption “[t]he statutory created falls within ery holding offering or the or for sale of 5—415(l)(f); (3) if even section 25— any ... device ... that is ... misbranded” act, exempt from the Palm- shield is not added), (emphasis and makes no distinction present sufficient evidence er failed to prescription nonprescription between finding support a of causa- would which Moreover, medical devices. in the case of arguments. reject these tion. We IUD, patient the selection of an will 25-5-403(l)(a) prohibits Section “[t]he undoubtedly partic- make the selection of a manufacture, delivery or the hold- sale or type ular of IUD in consultation with a any device ing offering for sale of ... or professional. medical An IUD with a false “device,” A misbranded.” ... is ... label, misleading encompassed which is Drug in the Food and as used Colorado within the definition of a misbranded device Act, any instrument intended includes 25-5-415(l)(a), may contained section the hu- structure or function of affect physician prescribe cause § 25-5-402(8). A device is body. man particular patient unsuitable for a misbranded, section 25-5- under deemed thereby bring type about of consumer 415(l)(a), labeling is false or mislead- if “its injury designed prevent. act any particular.” Section 25-5- ing in support of its contention that “all 402(15) “labeling” to include defines qualified statutory the shield for the ex written, graph- printed, or labels and other 5—415(l)(f) emption in section of the Col 25— upon article or of its ic matter Act, Drug points orado Food accompanying wrappers, or containers or effect, regulation then in a federal “label,” article.” The term under sec- such § 1.106(d) (1972), promul C.F.R. 25-5-402(14), “display of means a writ- tion § 352(f) (1970) gated pursuant to 21 U.S.C. ten, graphic upon matter printed, or exempted “prescription certain de ” any article .... immediate container of only through pro medical vices” available 25-5-415(l)(f) states follows: Section “directions for use” fessionals from the any requirement as to ... ade- “where legis labeling requirements of the federal use, quate applied as to directions for statutory are satisfied that the lation. We device, drug necessary not for any or 25-5-415(l)(f) does exemption of section health, public the protection the of the negligence Palmer’s apply to this case. regulations promulgate department shall repre primarily centered on Robins’ claims exempting drug or device from such such the use of the shield of sentations that exempted un- requirement, and articles rate pregnancy “lowest fered the [of] Food, Drug and Cosmet- der the [Federal 1.1%,” pregnancy pro without “prevented] exempt.” shall also be ic Act] body, any general effects on the ducing argument safe, sure, its brain,” In connection with “provid[ed] or blood Drug Act is not allegedly the Colorado Food The mis contraception.” that sensible case, suggests labeling representa applicable leading to this Robins of these nature apply safety and effec legislature clearly not intend to related to the the did tions that and not to di misbranding prohibition to of the statutory tiveness plain shield, its use. Because devices, rections for as the medical such violation, you may only (1) you drug find such a Misbranding. de- "If A or ‘25-5-415. vice shall be deemed you find that it was a to be misbranded: consider it if also misleading (a) labeling injuries.” proximate is false or If its cause of the ’ any particular; ... “proximate" elimina- has since been The word the above statutes constitutes "Aviolation of Jury Colorado Civil Instructions. ted from the negligence negligence, defined is elsewhere CJI-Civ.2d 9:14 and 9:26. See instructions. in these 25-5-415(l)(f) obligation resting create means “the proof terms section den of exemption respect with to “directions for proposition who to party on the asserts a use,” exemption and do not extend the to by preponderance the same establish labeling respect safety with to or effective- questioned the evidence.” Because Robins ness, exemption applicable is not so as actually at trial Palmer had a whether negligence per claim to exclude Palmer’s her uterus shield in at the onset of the misbranding prohibition from the of sec- se leading septic infection uterine abor- 25-5-403(l)(a). tion 18, 1973,6 tion on November it that claims Turning argu third to Robins’ the court’s instruction had the effect ment, we conclude that there sufficient was prove when, requiring Robins to this fact in this evidence case to warrant submission instead, required should it have Palmer to negligence per jury. of the se issue prove place shield was in at the negligence theory To recover under a septic time of the abortion. find this We se, prove per required Palmer was argument devoid of merit. inju violation of the her statute caused Lambotte 147 Colo. Payton, ries. challenged instruction, in addi (1961). Although P.2d 167 Palmer was defining the proof, tion to burden of stated produce labeling precise unable docu plaintiff’s prove that it burden to relied, ment which she there was abun (compensatory) “a claim actual dam establishing dant evidence that such mate preponderance ages by a of the evidence.” primary rial existed and was the factor Furthermore, several other instructions Petri’s the shield to Dr. recommendation of liability enumerated elements essential accept and her his rec Palmer decision to respective to Palmer’s claims and referred using ommendation and to continue “propositions.” to these elements as After being after shield. Palmer testified that propositions shield, listing or these numerical fitted with the she continued with because, representa der, use its based on the these instructions then concluded given tions Robins’ written material following statement: Petri, Dr. she it would her believed you “If find that one or more of provide a safe and method of con effective propositions these ... has not es- been traception. Under the of the state record by preponderance evi- tablished us, light in a before which must be viewed dence, your then verdict on this claim Palmer, Gossard, e.g., favorable to most (compensatory) damages actual must be we are P.2d satis defendant. for the persons fied reasonable could conclude hand, you other if that all “On the find misleading labeling employed that false propositions of these ... have es- been caused injuries. Palmer’s by preponderance evi- tablished The Burden B. Instruction dence, your then verdict on this claim for Proof (compensatory) damages actual must be next trial Robins asserts that the court in that instructing jury plaintiff.”7 erred the the bur- for the that, August premised place contention on 1973. Palmer to 6. Robins this factual in testified any noting hospital knowledge, absence of records the the recovery her the best of the shield remained before, during, or of the shield after body septic until in her after her Fi- abortion. septic hysterectomy. Rob- Palmer’s abortion or indicating nally, testimony there was trial circumstantially claimed this evidence estab- ins the Dr. Petri removed shield when he examined body that the shield Palmer’s lished was not in shortly septic after Palmer she underwent the and, consequently, the onset at of her infection abortion, prior hysterectomy, which was septic was the cause of her abortion. The Austin, by performed Dr. his associate. obviously contrary. jury found to the Sufficient jury's supports in the con- evidence the record example of the 7. As an elemental instructions Dr. Petri he inserted a clusion. testified that liability, we on set forth in full the in- court's January into Palmer’s uterus in 1973 and shield negligence on Palmer's struction claim: his records indicated the was still in shield

213 Thus, challenged penalty any penal in in- the reference the or forfeiture of statute clearly “propositions” to di- year was ... shall be commenced within struction one liability “proposi- to elements or rected the after the offense is committed and not af- in had to establish order tions” that Palmer ter that time.” The resolution of Robins’ and, respect, in this a cor- recover was to turns on contention whether claim Palmer’s of the that could not rect statement law punitive damages was for a “penalty” misinterpreted as possibly have been some- “penal based on the violation of a statute” proof to shifting the burden of Robins how contemplation within the of section 13-80- any “propositions.” on of these Relating punitive Issues to Punitive damages Colorado VI. statute,

Damages namely, are creature of section 13-21-102, (1973), 6 provides: C.R.S. which is- Robins raises numerous and varied “In all civil damages actions which $6,200,000 punitive the relating sues by are a jury wrong assessed for a done questions damages range award. person, personal the or to following: applicability the or real include the property, injury complained and the year one limitation of section 13-80- of is the (1973), damages by fraud, to a punitive 6 attended circumstances of mal- C.R.S. claim; constitutionality insult, facial ice or or a wanton reckless statute, damages section 13-21- punitive disregard injured party’s rights (1973), 6 and other constitution- C.R.S. feelings, the jury, in addition to the predicated application al claims its damages by party, actual sustained such case; under the facts of this Robins may exemplary him award reasonable damages applicability punitive stat- damages.” liability claim in products ute to a strict Although punitive damages a claim for un- tort; sufficiency of the evidence to undoubtedly puni- der 13-21-102 is section in this support punitive damages award Butters, character, e.g., Mince tive case; propriety of certain instruc- (1980); Frick v. Colo. tions; and claimed excessiveness of the Abell, (1979); P.2d 198 Colo. $6,200,000 punitive We will ad- award. Deane, French v. 36 P. 609 questions in dress these the order stated. (1894), separate it is not and distinct A. The Statute Limitations Rather, auxiliary it is cause of action. damages. claim for actual underlying that Palmer’s claim for Robins contends Harding recently As was observed by operation punitive damages was barred Jones, Co., Inc. v. in Glass P.2d year the one statute of limitations “ap- (Colo.1982), 13-21-102 13-80-104, (1973), section section C.R.S. wrong any plies only a civil has been actions and suits when states “[a]ll Plaintiff, Palmer, injuries which Plaintiff sustained Carie M. 3.The "In order for Defendant, by negligence, A.H. proximateiy to recover from the Co., Inc., Robins caused such were negligence, you being any, on her claim of Shield was if while Daikon following have been estab- must find all of rea- a manner the Defendant should used in lished: expected. sonably have Co., Defendant, Inc., A.H. Robins 1. The you or of these find that one more "If inserted into manufactured the Daikon Shield propositions has not been established three uterus; Plaintiff's evidence, your preponderance then Co., Defendant, Inc., 2. The A.H. be for Defend- on this claim must verdict testing, designing, negligent manufac- ant. turing, promoting marketing the Daikon hand, you three other if find that all "On the failed exercise reasonable Shield in that it propositions been established of have these prevent from the Shield creat- care to ing Daikon evidence, your preponderance the then of injury per- to an risk of the unreasonable (compensato- actual verdict on this claim for reasonably expected might be son of one who ry) damages must for the Plaintiff." be use, it be it while to consume or affected being the Defendant used in manner reasonably might expected; and have 214 by aggravating circumstances,”

attended cation of statute to it in this case can- “by its applica- and own terms ... has no process law, not reconciled due be of Const, Const, tion in the absence of a underly- XIV; successful U.S. amend. Colo. art. ing § damages.” claim for actual See also II, 25, prohibi- the federal constitutional Inc., Armijo Transport, v. Ward 134 Colo. against jeopardy, tion double U.S. Const. 275, (1956); Rediess, P.2d 517 302 Ress v. XIV, and amends. V federal consti- (1954). 130 Colo. Section against prohibition tutional cruel un- permits puni- Const, 13-21-102 thus an for award punishment, usual U.S. amends. damages only conjunction in tive with an VIII and XIV. no in We find merit these underlying independent “civil action” arguments. damages actual which are assessed for legal wrong injured party. Vagueness. to the 1. some Facial Robins punitive that damages contends statute Colorado statutes have vague is unconstitutionally in violation of “penal” been construed as been those have process due controlling ques of The law. statutory which create a new and distinct tion in vagueness challenge a void for is See, of e.g., cause action. Carlson v. whether proscribes the statute conduct (1977) McCoy, 193 Colo. 1073 P.2d vague persons terms so ordinary of (statutory damages action for treble based intelligence necessarily guess must as to to comply landlord’s failure with securi meaning its as to application. differ its ty deposit penal purposes law is for of one E.g., Connally v. General Construction year of statute limitations because treble Co., 269 U.S. 46 S.Ct. 70 L.Ed. 322 damages independent award constitutes an (1926); People City ex rel. Arvada v. forfeiture”); statutory “penalty or Atchi Nissen, (Colo.1982). 650 P.2d son, Basic Topeka and Santa R.R. Fe Co. v. Tanner, statutory adjudication guide rules of (1894) must 19 Colo. P. question. (statutory resolution of this A recovery claim for twice statute constitutional, every unreported presumed is value steer run and the over property and killed on for party attacking railroad is recov burden on the is stat ery statutory penalty of a discrete unconstitutionality and is ute to establish its be subject penal limitations). statute of yond Nissen, a reasonable 650 P.2d doubt. statute, punitive damages however, The 550; People C.M., at Interest independent does create an cause of (Colo.1981). “Also, P.2d 593 it must be action, merely but authorizes increased process borne in mind that due lawof has damages ancillary to an independent claim required never mathematical exactitude Furthermore, damages. penal for actual Nissen, legislative draftsmanship.” statute, in punitive damages contrast P.2d at While the statute must be statute, requires proof no of actual dam “sufficiently specific give warning fair ages precedent as a condition recovery. conduct, proscribed it must also re Denver and Rio Grande R.R. Co. v. Fre sufficiently general capable main to be deric, 140 P. 463 We application under varied circumstances.” punitive therefore conclude that a claim for Id. 13-21-102, damages under section being ancillary independent to an claim civil for rules, When under viewed these damages, actual does not constitute ac it is clear that section 13-21-102 not void recovery “penalty tion of a ... of vagueness. statutory “cir terms penal statute” the intendment within [a] cumstances of fraud” and “a wanton and year period the one limitation section disregard” sufficiently reckless are clear 13-80-104. persons ordinary intelligence to afford a practical guide capa for behavior and are

B. Constitutional Issues application ble of in an even-handed man argues punitive damages generally ner. Fraud consists of false vague is facially appli- representation fact, statute existing of a material

215 conclusion, logical disregard utter of were followed to its knowledge or made with however, to another it mean falsity, “punitive with the intent induce would that its representation to take rely upon damages against the could a to never be assessed v. action thereon. Morrison produced detrimental of mass manufacturer a article.” 470, 458 Goodspeed, 100 P.2d Co., Colo. 68 Grimshaw v. Ford Motor Cal.App. 119 Cantrell, 154 Knight v. see also (1937); 757, 812, 348, Cal.Rptr. (1981). 3d 174 383 Ginsberg v. (1964); 396, Colo. punitive damages The need for just is as (1952). P.2d Zagar, 126 Colo. 251 1080 danger real as the multiple of awards. reckless” likewise term “wanton and is The Co., v. Wangen Ford Motor 97 Wis.2d stranger to law. It involves no Colorado (1980); Owen, 294 N.W.2d 437 Punitive risk of that creates a substantial conduct Damages in Products Liability Litiga- purposefully per- to another and is harm tion, (1976). 74 Mich.L.Rev. of risk in an awareness the formed with propriety punitive While the damages See, e.g., consequences. disregard of the case-by-case basis, must be a decided on Seifert, 486 P.2d 175 Colo. safeguards there are Coffman a trial available to Jr., Spain, Brown v. (1971); that, faced court with a defendant’s claim v. Smi- (1970); Steeves P.2d past punitive arising due to awards out Col- ley, 354 P.2d Colo. conduct, the same course of it will face damages passes punitive statute orado’s economic from a puni- disaster substantial muster under the void constitutional damages tive verdict the at ease issue. vagueness doctrine.8 adequate showing When an by is made defendant, might Due grant- court Other Process Claims. consider ing a bifurcated trial on the process arguments puni- several. issue of due are Robins’ damages tive potential order to initially avoid It asserts prejudice to the defendant on punitive involving the issue of multiple awards See liability. 42(b). concept C.R.C.P. un- product clashes with the same der such argument If circumstances could at fairness. consider fundamental was, actually proximate fully a result trial ex- it and that as further that the court 8. We note meaning plained the of "fraud" and "wanton of her of Plaintiff’s reliance or doctor, reliance jury, injuries. and reckless” in its instructions to Plaintiff sustained jury's ability apply thereby enhancing to proven must be- “The above elements determining statutory Rob- whether elements may you find yond doubt before a reasonable justify as to an assess- ins’ conduct was such injuries cir- were attended that Plaintiff’s damages. punitive One instruc- ment cumstances of fraud.” on "fraud” was as follows: tions con- on “wanton and reckless The instruction representation of of a false "Fraud consists duct” stated: past present or material fact without made conduct consists “Wanton and reckless it was with the an honest belief that true purposeful an act failure to do either women, Plaintiff, as or their intent that such duty was under defendant upon it. act in reliance doctors perform, knew which omission defendant may "Alternatively, fraud also consist danger person and created a another’s present past fact or material concealment of heedlessly perform, without it failed which regard present past or materi- failure to disclose a or al fact where there is a rights consequences to the or the duty it disclose safety person, or of another's an affirmative creating impression of the a false the intent purposefully defend- committed which the act woman, like facts the mind of a actual dangerous person ant knew was another’s Plaintiff, or or doctor so the Plaintiff her heedlessly, performed it without and which they take a course of action her doctor would might rights regard consequences or of the they facts. knew the actual not take if safety person. of another’s injury concluding that Plaintiff’s "Before ordinary comparison, simple mis- "As a or fraud, was attended circumstances passive to one’s conduct inattention above, you also that Plain- must find defined actions; it is the failure to do conduct justifiably and acted her doctor relied tiff or upon or, reasonably prudent person representation, Plain- would act which do, said false reasonably refrained doing her took action or tiff or doctor or the of an act which a action, taking relying do, justifiably on the person from prudent under the same would assumption that the concealed or undisclosed similar circumstances.” what not exist or was different from fact did 216 phase second of the trial the amount of punitive damages statute in this case. past unsatisfied or punitive satisfied party, however, A generally is not entitled past awards as well as present constitutionality to assail the of a statute financial condition of the defendant.9 An- except adversely as he is affected by its safeguard, other closely related to a bifur- See, application e.g., Peo- given in a case. proceeding, cated is to instruct jury, ple C.M., in the Interest 593; 630 P.2d requested when so defendant, that it Wimer, People v. 191, 591 P.2d may properly consider past the amount of (1979). “punitive 87 Robins’ claim of over- punitive imposed verdicts on the defendant kill,” light, when viewed in this takes on a as a result marketing of its conduct. See speculative cast. The here record is devoid Wangen, 304, 97 Wis.2d at 294 N.W.2d at any evidentiary showing that Robins Finally, 459-60. judicial close scrutiny of a experienced past punitive such a number of punitive damages verdict, against the back- damages verdicts as to render the award in drop particular circumstances of the oppressive this case so as to raise a colora- case, is another means assuring that the process ble due claim. proportionate award is to the defendant’s that, argues Robins also be wrongdoing, is commensurate the de- punitive cause of the nature of an award fendant’s ability pay, financial and actu- 13-21-102, under section it should have ally serves the purposes punishment afforded procedural been all See, safe Grimshaw, e.g., deterrence. 119 Cal. guards applicable proceedings. to criminal

App.3d 818-21, 388-89; at Cal.Rptr. 174 at contrary, To the purposes the nature and Wangen, 304-06, 97 Wis.2d at 294 N.W.2d punitive damages 459-61; sufficiently are at re Publishing Curtis Co. v. cf. Butts, process moved from the 130, 160, 388 criminal as to ren U.S. 87 S.Ct. inapplicable der (1967) safeguards the traditional L.Ed.2d 1094 (plurality opin- ion) (First provided to one accused of See guarantee Amendment crime. of free- Co., Publishing Curtis press dom adequately protected by judi- 388 U.S. at 1993; cial control over Lynch, Malandris v. Merrill S.Ct. at punitive damage excessive Pierce, Smith, Fenner and actions). awards defamation 703 F.2d cert, — denied, (10th Cir.1981), U.S.

-, S.Ct. 78 L.Ed.2d 99 Moreover, 13-25-127(2), Robins next contends that section 6 C.R.S. potential “punitive (1973), arising provides overkill” significant safeguard multiple punitive from damages by requiring awards re a civil defendant that the stat- in an application sults unconstitutional utory punitive damages elements of a claim opinion involving In the course of our singular in Leidholt v. discrete and conduct. Prod- Court, (Colo. contrast, liability District P.2d litigation, 771 n. 2 frequently ucts 1980), reject procedure we stated that "we multiplicity plaintiffs seeking involves a actu- requires punitive punitive which damages a bifurcated trial damages when al and for the sale of an sought.” (Emphasis added). and, are unreasonably dangerous product in this plaintiff, respect, issue in Leidholt was representative whether the in a is not of the traditional malpractice involving punitive damages medical action the failure tort case. Because of the dan- surgical sponge surgical ger to remove a multiple punitive from the posed of excessive awards during laminectomy, site products liability course of was litigation, certain forms of pretrial discovery entitled to of the defendant’s we believe the trial court should consider a puni- financial condition in connection with a bifurcated trial where the defendant makes an damages "prima adequate showing tive claim. We held that past punitive of substantial facie proof liability punitive of a triable issue arising prior litigation involving awards out of damages necessary defendant, to discover product, information the same sentially the same and es- relating to the defendant’s liability financial status.” the same issues involved in respect case, previous however, 619 P.2d at 771. Our statement with lawsuits. In the instant proceeding nothing bifurcated was not intended to of record indicates that Robins sus- foreclose trial court discretion in this past punitive matter tained such substantial verdicts Leidholt, appropriate under circumstances. proceeding required that a bifurcated under n dealing 42(b). we were with a traditional tort claim C.R.C.P. purpose of Cruel and Unusual Pun- doubt. We beyond a reasonable proven [the always ishments has been con- process claims. reject Robins’ due Clause] thus sidered, so, properly to be directed at Jeo-pardy. 3. Double Robins con punishment kind of im- the method or potential multiple puni tends that posed for the violation of criminal stat- damages violates the constitu awards tive _’ Texas Powell v. utes U.S. [392 against jeopardy. double prohibition tional 2145, 514], 2153-54, 531-32 S.Ct. 20 [88 Const, There is U.S. amends. V XIV. (1968) (plurality opinion).” 1254 L.Ed.2d ] prohibi to this contention. The no merit therefore, Clause, application The has no against jeopardy relates tion double proceeding involving punitive a dam- a civil proceedings and quasi-criminal criminal ancillary ages claim to a civil cause of not, here, involving a civil lawsuit an action. See United States School District punitive damages. E.F. ancillary claim for Corp., Kan.App.2d No. v. Gelotex 6 490 Anderson, Co., Inc. v. 42 Hutton & (1981). 346, 355-56, 196, 629 P.2d 206 Grim- 497, (1979); Colo.App. P.2d 413 596 shaw, 757, Cal.App.3d Cal.Rptr. 174 119 Damages in C. Punitive a Strict 348. Liability Case Pun Cruel Unusual (cid:127) argument raises Robins argues punitive ishment. that the to, permitting court erred in con- the constitutional damages statute violates punitive damages in connection with a sider against pun and unusual proscription cruel liability products claim based on section U.S. Const. fines. ishments and excessive (Second) the Restatement 402A of argument and XIV. This amends. VIII that, Torts. argument The raised here is punitive proposition on the that the centers damages require punitive an evalu- because appro damages statute fails to establish fault, damages legal punitive ation limiting punitive dam priate mechanism for incompatible liability with a strict award is against Robins in other cases. ages awards claim, necessarily on the na- focuses overlooks, however, argument is What regardless product of fault. ture of proposition that the the more fundamental argument. unpersuaded by Robins’ We are Punishments Clause Cruel and Unusual process exclusively liability with the criminal deals principle The strict punishments. As the United selling product and criminal in a condition in tort for Ingra- Supreme unreasonably dangerous Court observed to the user or con States 651, 667, 97 S.Ct. Wright, v. ham 430 U.S. 402A of the originated section sumer (1977), (Second) 1401, 1410, Torts 51 L.Ed.2d 711 has Restatement E.g., process the criminal circumscribes state. adopted Clause as the law of this been ways: 57, Hiigel, 190 Colo. in three 544 P.2d 983. “The liability product claim is the of a strict “First, crux punishment the kinds of it limits depends on the defective Liability itself. imposed on those convicted that can be Gamble, and not on the crimes, character of e.g., Estelle v. [429 a defendant in intro culpability fault or 97, 285, 50 L.Ed.2d 251 U.S. 97 S.Ct. ducing product into the stream of com Dulles, 86, (1976)]; Trop v. U.S. 78 [365 Gas, v. Inc. Van second, merce.” 590, (1958)]; 2 L.Ed.2d 630 S.Ct. Blueflame (Colo.1984); see, Hoose, 679 P.2d 579, 589 grossly dispro- proscribes punishment it Corp., 673 P.2d 363 e.g., Jackson v. Harsco crime, severity portionate (Colo.1983); Hiigel, States, 544 P.2d v. U.S. e.g., United Weems [217 Co., Inc., v. 983; Kinard Coats Colo. (1910)]; L.Ed. 793 S.Ct. purpose App. third, imposes limits it substantive 402A liability of a strict claim under section pun- made criminal and can be on what damages. A compensation for actual is e.g., Robinson such, ished as Califor- claim, contrast, punitive damages cal 1417, 8 nia, 82 S.Ct. U.S. [370 _ punish wrongful conduct and to culated to primary (1962)] ‘The L.Ed.2d thereby part repetition conduct. These induce reluctance on the of that deter signifi- profit by separate purposes are of the manufacturer to sacrifice and distinct removing resolution of the issue before a correctible defect. We there- cant hold, courts, many fore as have other us. punitive damages are in con- recoverable have manufacturers Because liability nection a strict claim founded correcting discovering and the means (Sec- on section 402A of the Restatement processes of through the product hazards ond) See, e.g., Dorsey Torts. v. Honda analy and data design, testing, inspection Ltd., (5th Cir.1981), 655 F.2d 650 Motor Co. only sis, have the a manufacturer often will grounds, on other 670 F.2d modified (5th the information neces to much of access cert, Cir.1982), denied, 459 U.S. likely dangers sary for effective control 177, (1982); 74 L.Ed.2d 103 S.Ct. 145 Hoff- product. using in consumers to face Inc., Sterling Drug, man v. 485 F.2d 132 Indeed, products principles of modern (3d Cir.1973); Klawes v. Firestone Tire & part to motivate liability law “evolved in (E.D.Wis. Co., F.Supp. Rubber 572 116 to use this information manufacturers to 1983); Sturm, Co., Ruger Day, & Inc. v. prod problem of help the massive combat (Alaska 1979); Toole v. Rich- Owen, at 74 Mich.L.Rev. uct accidents.” Inc., 689, ardson-Merrell, Cal.App.2d 251 manufacturers, from a both 1258. Most (1967); Cal.Rptr. 398 Moore v. Jewel Tea general liability from a to avoid and desire 109, Co., Ill.App.2d 253 N.E.2d 636 use their responsibility, ized sense of social (1969), 46 I11.2d affd, 263 N.E.2d marketing of haz prevent the resources to (1970); Dayton-Hudson Corp., Gryc v. injuries remedy the products. To ardous cert, (Minn.), denied, N.W.2d 727 449 U.S. product is resulting a defective when (1980); 101 S.Ct. 66 L.Ed.2d 149 marketed, impos section 402A nevertheless Wangen, 97 Wis.2d 294 N.W.2d 437. manufacturer without liability on the es principles of strict regard fault. The to D. Robins’ Motion Directed Verdict however, equipped to deal liability, are ill contends Robins the trial the cul problems the other end of at with granting court erred in not its motion for scale, is, injury an re when pability punitive directed verdict on Palmer’s dam- in marketing product of a from the sults ages In resolving question claim. this we safety. consumer flagrant disregard of must light view the' evidence in a most legal Owen, A tool Mich.L.Rev.at 1259. to favorable Palmer and determine wheth- gross expose type this of “to calculated er, when so viewed and all reasonable in- misconduct, punish those manufacturers verdict, support ferences are drawn to misbehavior, flagrant [engaging such in] jury beyond reasonable could find a rea- acting from manufacturers deter all and injury-causing sonable doubt that Robins’ public wel disregard for the similar with conduct “attended was circumstances of legal needed to fill this is therefore fare” fraud” or a disregard “wanton and reckless remedy puni at 1259-60. Id. void. injured party’s rights of the feelings” to fill this need. damages is tailor-made tive provided in E.g., as section 13-21-102. Frick, 602 P.2d 852. There Indeed, one virtue Colorado’s evidence, ample view, is in our support statutory remedy punitive damages is punitive damages the award of in this case. that, pre standpoint, the from a deterrence magnitude offending early 1970, prior cise of cost to the As as June to its project. purchase production party impossible rights shield, is This uncer undoubtedly had tainty original of cost will affect a Robins been notified that the pregnancy projection introduce manufacturer’s decision to rate had increased marketplace. punitive equivalent If from the biostatistical product 1.1% certain, information, predictably they however, This damages are be 5.5%. was doing withheld from just marketing person another item in the cost of Robins’ come costs, business, Shortly nel. production purchase much like after other its argument complaint. her over- shield, design Robins’ several modifi- Robins made discussed, testing, principle, previously looks the clinical and then cations without promotional damages is engaged punitive in an intensive cam- that a claim for ancil- the medical paign lary underlying independent directed to both commu- to an data, public. Despite contrary nity lay damages. The term claim for actual “cir- having fraud,” as employed Robins advertised its cumstances as sec- rate of Robins pregnancy 13-21-102, lowest 1.1%. merely a reference tion “the the shield as modern also held out might justify those circumstances that IUD, combining superior” preg- “minimal punitive damages conjunction award of nancy exceptional patient rates with toler- damages an award of actual some ance,” preventing pregnancy pro- “without independent wrong. The trial civil court’s ducing body, effects on any general adequately instructions in this case in- sure, brain,” providing “safe, blood jury meaning formed “fraud” August contraception.” sensible punitive applicable to Palmer’s claim for by its quality Robins informed control damages.10 wicking supervisor Chapstick at ef- Measuring 2. Factors Punitive tailstring appreciated fect of Damages. claims that trial danger phenomenon posed by inadequately instructing court erred information, Notwithstanding this users. properly on those factors which could danger to of this and Robins failed warn determining considered in the amount be product. in design change made its La- no factors, damages. as punitive These stated Earl, ter, 1972, in Dr. Thad a Robins June instruction, in the were as follows: consultant, the danger alerted Robins to amount, any, you “1. What if con- shield, septic from the and Robins abortion effectively pun- to be to sider sufficient twenty-two inci- was also informed of other wrongdoing; for its ish Defendant septic by suffered shield dents of abortions amount, any, you if con- “2. What users, prior all occurred Palm- of which to effectively to be sufficient to deter sider 18, septic on November 1973. er’s abortion circumstances; in others similar information, Despite this Robins failed to which, Any your in factor “3. other life-endangering risk warn of this to users reasonably be con- judgment, should 1973, and, April as still continued to late as sum, determining any, if in what sidered to leave the in physicians advise shield to Plaintiff as ... should be awarded unplanned preg- of an place in the event damages.” exemplary (punitive) evidence, view, in nancy. our is suffi- This instruction finding beyond record that this was support to a reason- The shows cient instruction, ten- conduct “at- a modification of an earlier able that Robins’ was doubt Palmer, by of fraud” listed third by circumstances and/or dered which tended and of the defend- a “wanton reckless disre- factor as the financial status constituted rights injured party’s objected feel- gard apparently Robins this ant. for a ings.” replaced motion directed ver- Robins’ instruction and the court ref- damages punitive claim on Palmer’s dict erence to financial status defend- was, therefore, which, properly your denied. in “[a]ny ant with other factor reasonably judgment, should be considered E. on Punitive Jury Instructions sum, any, determining if in what ... Damages (punitive) exemplary should be awarded as Robins 1. Fraud. contends damages.” the trial it error for court to was position is not Palmer Robins did instruct on fraud because complain about this instruction. The eco- elements fraud plead the specifically general by outlining court’s instruction on the well as other trial instructions the dis- 8, fraud, supra, supple- meaning opinion see note was tinction between statements fact and by representa- duty "a false definitions of circumstances in which a mented dis- tion," fact," "concealment,” exists. material as close "a 386, (1971), 486 P.2d 477 rev’d on other nomic status of the legiti- defendant is a grounds, 178 Colo. 497 P.2d 997 jury mate factor for the to consider in awarding punitive Frick, damages. E.g., guide 198 Colo. 602 P.2d “The 852. The deletion factors which this determi- nation, instruction, original appeals of this factor from the set forth the court of Pontiac, along Payne supra, with the in Leo substitution of the are ex- third pressly approved at ultimately given factor in the instruction time. Those (1) jury, factors are: the nature of the act clearly was for Robins’ benefit. (2) Furthermore, injury; caused the the economic any failed to tender defendant; (3) status of the the de- setting instruction forth additional fac- terrent effect of the award on others.” tors properly it believed should jury determining considered Although a ten-to-one ratio of exemplary damages. amount of We there- punitive compensatory damages war fore find no reversible error connection judicial scrutiny, rants close we note that with Robins’ claim. high upheld ratios have been where the jury properly record shows that F. The Claim Excessiveness guided by purposes punitive of a dam Robins asserts that award of See, ages reaching award in its verdict. $6,200,000 punitive damages prod- was a e.g., Bradley, Mailloux v. 643 P.2d 797 passion prejudice uct of and thus ex- (ratios (Colo.App.1982) up of 10:1 and 35:1 reject cessive as a matter of held); law. We its also, e.g., see Vossler v. Richards argument. Co., Inc., Mfg. Cal.App.3d (1983) Cal.Rptr. (20:1 upheld); ratio Et- punitive damages Because do Co., Inc., Exterminating tus v. Orkin precise determination, not admit of (24:1 (1983) Kan. ratio rest, necessarily amount of an award must upheld); Leimgruber Claridge Associ instance, in the first within the discretion ates, Ltd., (1977) 73 N.J. 375 A.2d 652 Mince, of the fact finder. (9.7:1 Maleo, upheld); ratio Inc. v. Midwest Frick, 616 P.2d 127. See also 198 Colo. Sales, Inc., 57, Aluminum 14 Wis.2d mean, 602 P.2d 852. This does not (1961) (15:1 upheld). N.W.2d 516 ratio In however, that fact finder discretion is abso deed, purposes punish in some cases the of lute. contrary, On the the reasonableness may only ment and deterrence be achieved always subject judicial an award is adequately when the award is such as to scrutiny post-trial in the appellate and impress upon the defendant and others the stages of a case. As the court observed in consequences seriousness and harmful of a Colo, Frick, at 602 P.2d at 854: particular form of misconduct. purpose punitive “The damages for is to jury In this case the punish wrongdoer considered an and thus deter abundance of evidence from which it similar conduct in the future. could Ark Val reasonably Mills, conclude that Robins’ ley conduct Day, v. 128 Colo. [Inc. Alfalfa (1953) However, justify was such as to a 263 P.2d 815 substantial assess ex ]. punitive damages. ment of emplary damages Robins’ mar must bear some rela keting program long period damages. occurred over a tion to actual Id. Al time, precise array was directed to a vast though no formula can be utilized consumers, determination, unwary accompanied and was in this v. Carlson by safety false McNeill, claims of and a conscious disregard (1945), threatening life the reasonableness of the hazards award by prod known it to be associated by examining with its can be ascertained gross uct. Robins accumulated jury if revenues facts of the case to discover $11,000,000 that exceeded from the impermissibly by preju motivated shield was alone, nearly and its net worth doubled properly guided by purposes dice or during device, marketing period of this exemplary damages. Payne Leo $157,695,000 Pontiac, Colo.App. reaching 1974. Additional Inc. Ratliff yearly I. showed that Robins’ net evidence $19,000,000 $27,- earnings ranged from Evidentiary Issues 000,000 during period of 1971 to 1974. appealed rulings from on a num- company in The net worth of the 1977 was issues, evidentiary asserting ber of $219,242,000, $26,801,- earnings net with prejudicial hearsay and irrelevant evidence year immediately pre- and in was admitted at trial and that the cumula- trial, ceding figures these increased to rulings tive effect of the trial court’s $240,275,000 $29,916,000 respectively. and highly inflammatory to allow prejudi- say, case, We cannot under the facts of this cial jury’s information to color the delibera- jury by passion that the was motivated or liability tions on damages both prejudice reaching its verdict or that the disagree issues. I with majority’s anal- is verdict excessive as a matter of law. ysis evidentiary In my issues.1 $6,200,000 grossly The sum of is neither view, prejudicial evidence was admitted disproportionate to the amount of actual prevented receiving Robins from a Palmer, damages nor, light sustained fair trial. condition, financial Robins’ unconscion- ably oppressive. see no reason We to view Reports A. Adverse Reaction the verdict as other than the conscientious Robins, pharmaceutical like most con- punish wrongdoer decision of a cerns, system continuously maintains a penalty with a commensurate with the seri- monitoring physicians from feedback ousness misconduct and the financial products. consumers the use of its about and, ability pay of the offender to concomi- drugs prescription Most medical de- tantly, to deter Robins and others from vices have unavoidable side effects. In similar acts of misconduct in the future. spite pharmaceutical of tests made judgment is affirmed. marketed, product many firm before a is prod- side effects are unknown before the ERICKSON, C.J., ROVIRA, J., dis- public pano- uct is sold to the and the full sent. ply problems drug to the use tied widespread only discovered after KIRSHBAUM, JJ., did DUBOPSKY and testing pro- pre-marketing use. Since no participate. accurate, absolutely reports from gram is especially are physicians and consumers ERICKSON, Justice, dissenting: Chief pharmaceutical important providing view, respectfully my I dissent. re- dangers company information on the requires error occurred which versible products. of its and benefits defendant, (Robins) A.H. Robins be com- employed a doctor to review granted a new trial. Because of errors comments, reports which it re- plaints, the admission of evidence and the district Most of the ceived on the Daikon Shield. jury, jury’s instructions to the court’s re- information involved so-called “adverse and the case should be set aside verdict product unplanned preg- actions” to the — to the district court for a new remanded infections, nancies, perforations, and the permitted evi- The district court also trial. great majority reports A of the in- like. trial, my introduced at dence to be problems from volved medical different view, probative limited value which had experienced. those which Palmer outweighed by prejudicial its greatly duty A manufacturer of a has a prejudicial effect The cumulative effect. dangers possible to warn consumers of prevented occurred the errors which of which are not obvious. Labels which rea- See receiving a fair trial. from defendant dangers Botham, (Colo. sonably inform consumers of the P.2d 589 People v. 629 comply duty adequate to with the 1981). are (Exhibit HHH) majority’s orandum hearsay. were inadmissible agree conclusion that with the 1. I challenged portions mem- of Dr. Preston’s those 222 375, Hardy, to warn can Hamilton v. Colo.App. 37 549 Admittedly, a failure

warn. (1976). negligence. Bailey P.2d 1099 give to a claim for rise Co., Inc., P.2d Montgomery v. Ward & 635 that, majority although The concludes (Colo.App.1981); see also Howard v. 899 reports included refer- the adverse reaction Products, Inc., 155 444, Avon 395 Colo. in- consequences unrelated to the ences (Second) (1964); Restatement 1007 P.2d of Palmer, the “nature of juries suffered § (1965). Torts 399 reported incidents not im- those other did I legal relevancy of the evidence.” adequate warning pair the provide A failure to disagree. may liability in a strict claim. also result products unaccompanied We held that have septic suffered a The Palmer abortion. warnings or instructions for sufficient reports claims adverse reaction included may found defective and unreason- use be perforation, ectopic reports of uterine Eng. Anderson v. Heron dangerous. ably removal, difficult insertion or pregnancy, Co., Inc., 198 391, 604 P.2d 674 Colo. pelvic inflammatory expulsion, and disease. Pust, Supply v. (1979); Union 196 Colo. prior dissimilar events is inad- Evidence (1978); Hiigel v. 162, General P.2d 583 276 v. Blackburn prove liability. missible Corp., 190 Motors 544 P.2d 983 Colo. Tombling, 365 P.2d 243 Alms, (1975); Colo.App. v. 41 Potthoff Department High- Millenson v. (1961); (Second) Restatement (1978); 583 P.2d 309 ways, 41 Colo.App. 590 P.2d 979 § 402A, (1965). Torts j Warn- comment (1978). prior conduct is Unless tortious drugs if ings prescription are sufficient similar, probative value of the unrelat- physicians pharmacists addressed to outweighed by ed acts is considerations and not to the ultimate consumer. Hamil- defendant, prejudice to the undue unfair Hardy, ton v. Colo.App. P.2d 37 549 time, consumption of and distraction of the attention from the issue of the de- jury’s case, responsibility plaintiff’s proceeded on theo- fendant’s In this Palmer See McCormick’s Handbook negligence liability. injuries. As a ries of and strict § Evidence, (E. Law case, Cleary 2d part of her Palmer submitted evi- Motors 1972); see also Uitts General dence that would tend to show that Robins ed. (E.D.Pa.1974); Corp., F.Supp. dangerous propensities knew chose, weigh prejudicial Shield, (judge must Daikon that it neverthe- C.R.E. but probative less, against evidence its val- profession the medical effect of not to inform ue). of those and users of the Daikon Shield dangers. part The evidence consisted case, products In this where the strict reports

the adverse reaction which were liability issue focused on the defectiveness objection. admitted over Robins’ Shield, highly prejudi- the Daikon it was admit evidence of dissimilar events

Objectionable hearsay evidence consists cial to merely to establish notice. The evidence offered for the of out-of-court statements prejudicial in particularly view of the purpose proving the truth of the matter was Diesel, Empire knowing admitted of inci- Id. See also fact that Robins asserted. Brown, involving undesirable side effects Inc. v. dents Colo. (1961); may, the use of the Daikon Hearsay evidence from Shield. C.R.E. however, reports broadly. strike too prove admitted to notice since adverse reaction reports a of com- the information as The relate to number it is irrelevant whether plaints to different intrauterine de- truthful or not. Notice evi- and to notice is comparison There is no of whether offered to establish that Robins vices. dence was duty provide reports the or data collected was unusual comply failed to with its intrauterine devices. Palmer’s warnings dangerous of conditions connect- for Under notice, theory prejudicial hearsay product, as as conditions of evi- ed with its well pur- proved merely linked to dence is admissible because it which have not been reported. ports injuries to show that occurred. product the but which were Cf. reports When the evidence relates to dissimilar in- came in these so far as causation is cidents, concerned.” potential prejudice the is obvi-

ous. Evidence offered to notice is establish disagree I with the majority’s holding susceptible misleading jury the in cases qualified that the exhibit for admission un- product alleged a defect in a where der both the exception business record particular injury have a caused and evi- general the hearsay exception, and must type injuries only dence other establish- report conclude that the erroneously was unsatisfactory es that the was except admitted as to the issue of notice.2 a number of different reasons. It Even if cannot the document was relevant on the issue, causation difficulty inserting that admission of be claimed or the evidence precluded by was hearsay the rule. If removing many the Daikon Shield of the Daikon higher Shield fact had inci- other adverse reactions suffered septic dence of IUDs, abortions than other prove users tended to the Daikon report may probative have had value as septic Shield caused Palmer to suffer a to causation prejudice but the to Robins per- abortion. Dissimilar incidents create a assumption and the unproven facts ception dangerousness prevent should have foreclosed admission of the receiving manufacturer from a fair trial on expert evidence. One of Palmer’s witness- liability dissimilarity issue. Given the es even acknowledged print-out injuries problems report- of Palmer’s meaningless was accepted unless as true. reports ined the adverse reaction and their report While the is of some value on the character, was, highly prejudicial my it notice, helpful issue of it cannot be on the opinion, an abuse of discretion for the trial adequate issue of causation without an reports. court to admit the foundation which shows statistical ac- Computer B. Robins’ Records—Exhibit curacy reliability of the data. probative post-injury value of the computer Palmer introduced a print-out print-out outweighed by data is far compiled which listed data that Robins had prejudicial jury. effect on the The rele- septic on abortions. The data was collected vance on the causation issue exhibit increasing 1975 as Robins faced an num- depends entirely accuracy on the and com- arising ber of lawsuits out of the sale and prehensiveness hearsay document. use of the Daikon Shield. Exhibit was highly prejudicial The statistical data is apparently summary reports that Rob- nothing the record discloses about how it ins received from doctors around the coun- Many patients’ was collected. try septic occurring abortions from the unreported inju- names are and the date of asserted use of a number of different ry reported permis- is not in all cases. The IUDs. sible inferences from the evidence on cau- prejudicial. sation are attenuated and print-out, The trial court admitted the view, my computer print-out should not cautioning relating septic that data abor- except have been admitted at trial on the occurring plaintiff’s injuries tions before injuries reported issue of notice as to those notice; on the issue of admissible injury before Palmer’s and should not have remaining that the data was admissible for been admitted without more in- definitive relating use as “circumstantial evidence” structions on its limited relevance. inferences the wishes to “whatever C. Dr. Christian’s Article —Exhibit 56 draw, if any, of the statistical nature of report relative to causation.” The jour- The trial court admitted a medical warned, however, “jury Tucson, court nal article written Arizona physician questioned safety should not consider as true the facts that Many reports consisted of accidents tion. reported septic to Robins before Palmer’s abor- Christian, I negligence. sential to Palmer’s claim in IUDs. Maternal Deaths As- See Device, 119 disagree majority’s sociated with an Intrauterine with the conclusion. (1974). Gynecology 441 Am.J. Obstetrics & jury The trial court instructed a of case The article contained number theory Palmer entitled to on a was recover seriously ill studies where women became negligence of if Robins’ conduct was not becoming pregnant or died after while “reasonably prudent pharmaceuti- that of a wearing The article mentioned an IUD. company cal under the same or similar specifically the Daikon Shield as one of the Specifically, circumstances.” Palmer con- in several of the case stud- IUDs involved (1) unreasonably tended failed: ies. dangers warn consumers of and risks that, majority although The finds the tri- with the use of the Daikon associated al court should have admitted the exhibit Shield; (2) investigate reports of adverse only purpose serving of as a for the limited Shield; (3) to the reactions Daikon to test opin- expert for Dr. Christian’s foundation marketing the Daikon Shield before ion, the article a the admission of without (4) product; marketing to control limiting instruction was not reversible er- campaign thereby promotion created agree. ror. I do not injury potential unreasonable risk of an published nearly eight The article was users of Daikon Shield. after Palmer’s incident. It raises months in negligence, plaintiff To recover must questions septic midtrimester abor- about prove by preponderance of the evidence tions, any does not reach conclusions. but legal duty that the defendant breached a only study The article calls for more owing plaintiff, proximately causing investigation. reliability The of the infor- damages. Independent Lumber Co. mation contained in Dr. Christian’s article Leatherwood, 79 P.2d 1052 Colo. was never established the record dis- (1938). Courts must determine as a matter instance, type closes that in at least one duty the existence of a and the law by patient erroneously of IUD worn applicable general standard of conduct. Moreover, reported as a Daikon Shield. Prosser, on the Law See W. Handbook highly prejudicial the article takes on a (4th 1971). ed. It is the role of Torts appearance of its in a character because however, apply facts of a juries, despite prominent journal, medical its lack particular legal case to standards set forth of extensive data and real conclusions. If jury in the instructions. the standard Thus, potential jury confusion was person to which a reasonable should care by the admission of obvious exacerbated knowledge conform is outside the common hearsay probative that had little evidence experience lay jury, e.g., of a medical value. Because of the article’s tenuous care, expert standards of then witnesses reliability post-injury publication and its purposes establishing may called for date, the article should not have been ad- Hardy, the standard of care. Hamilton v. mitted into evidence. Colo.App. 549 P.2d 1099 II. also District See Seaman School Unified Co., Inc., Kan. v. Casson Construction Sufficiency Negligence of Evidence (1979)(standard App.2d Claim architects). de- majority finds that the ultimate view, my lay average is not Robins’ conduct termination of whether capable determining expert without degree comported with that of care which guidance required the conduct of a reason- reasonably prudent drug manufacturer ably prudent pharmaceutical company. same or similar cir- would use under the Most manufacturers and distributors province within the cumstances was well and, pharmaceutical products sell una- intelligence there- persons ordinary voidably drugs engage in fore, expert opinion was not es- unsafe or devices evidence

225 supervision (Colo.1980); continuous and control of their P.2d 768 McAllister v. McAl- products. Many products lister, do not (1922); manifest 72 Colo. P. 788 209 Cour- years side effects until adverse after their Raymond, v. 23 Colo. voisier 47 P. 284 E.g., manufacture. v. (1896); Beshada Johns- Co., Miller v. Carnation Corp., Products 90 N.J. Manville 447 App. (1977). 564 P.2d 127 (1982)(concerning A.2d 539 asbestos relat- worth, Evidence of however, financial injuries). testing marketing ed The of upon which jury punitive a a bases dam- drug heavily products regulated occurs in a award, ages representative must be of the (both federal) atmosphere state and financial true of the condition defendant. differing monitoring involves considera- goal The of admitting evidence of financial products. tions for different An kinds of present is to worth accurate picture as a of lay average jury would have not the skill or financial worth possible. as Financial evi- expertise to determine a base line of rea- permit dence should not or jury mislead a pharmaceutical conduct for sonable a con- reach a false upon conclusion based inac- particular cern to which the in a conduct incomplete curate financial data. We compared. Accordingly, could be case that, held irrespective have of the defend- plaintiff required should have been es- wealth, punitive damages ant’s must bear a tablish, part case, as the appropriate of her relationship reasonable to compensatory of pharma- standard care for a reasonable damages and “fixed that no mathematical concern. ceutical The standard of care for formula to determine exists reasonable- pharmaceutical prod- a of manufacturer Co., ness.” Miller v. Carnation Colo. ucts, by expert testimony, while established App. 564 P.2d 127 See also Mail- ultimately question still of a law for the Bradley, v. P.2d 797 (Colo.App. loux Prosser, supra. courts review. W. 1982). may A trial court consider the in determining wealth of the defendant III. punitive appropriate damages amount of Relating Damages Issues to Punitive given Dameron, Starkey a case. (1933) my view, (Butler, J., majority properly has Colo. concurring). many stated law on of the issues See also Vollert v. Summa relat- (D.Haw.1975). punitive accord, Corp., I ing damages. F.Supp. am in example, majority’s finding with the danger jury The confusion on fi- of circumstances, that, punitive under certain corporate status of a defendant is nancial damages are recoverable in connection with plaintiff illustrated in case. The well liability a strict claim founded on section worth, sales, sought net establish (Second) 402A of Restatement I Torts. profit figures purposes of Robins for however, disagree, majority’s af- with the applying punitive damages statute $6,200,000 jury firmance of a award introducing corporate series annual punitive damages and conclusion that reports. jury The also told that was Rob- passion the award was not a tax) gross profit (before ins’ on Daikon and, therefore, prejudice excessive as a years sales over it was Shield marketed I matter law. am also convinced that nearly figure, That million. how- $12 derives, at least in the excessive verdict ever, only represented net sales and was inadequate part, from district court’s an accurate characterization may prop- on the factors instruction which profit figures Daikon for the Shield which determining proper considered in erly at trial. If were never introduced assessing monetary standard award used million as basis for its $12 $6.2 damages. punitive damages, punitive million award of argu- defendant’s financial condition is a reasonable in of Palmer’s seems view proper determining appear factor to ments which in the record and the consider figure punitive damages acceptance should be trial court's in its whether Court, for new trial and Leidholt v. District 619 denial Robins’ motions awarded. remittitur, respect high num- badly probability is that the the award skewed then —a they will punitive damages plaintiffs ber of be few and in favor of Palmer. A single join, join, can be in a will or forced to jury the result of award should not be Roginsky Richardson-Mer- Develop- See v. trial. Alley v. Gubser See speculation. rell, Inc., Cir.1967). (2d Co., 378 F.2d 832 (D.Colo.1983) (ra- ment F.Supp. 569 36 excessive). 10:1 tio of held damage remedy punitive The was trans- America, ported by and the middle of the Although it difficult to set forth a hard is century, gained nineteenth substantial ac- exactly rule finan- governing and fast what Pu- Owens, See ceptance country. in this consider, figures jury should it is cial a Damages Liability in Lit- nitive Products new grounds for remittitur or trial for igation, 74 Mich.L.Rev. 1258 (1976). The jury prejudicial to consider information purpose imposition punitive the of irrelevant, behind worthless, is and mislead- which was, be, pun- and damages continues to ing. diligent The must be in trial court ish defendant for of an the the commission screening of financial worth so evidence aggravated outrageous act of miscon- purposes sup- the the award furthers him duct to deter from such and and others punitive porting damages and does not add Historically, the conduct in future. view, jury prejudice. my confusion or punitive damages torts for which were punitive damages the massive of amount involving awarded were intentional torts in supported awarded case is not single Roginsky, victim. 378 F.2d 832. of ad- evidence Robins’ financial condition mitted at thus error. trial and constitutes Although remedy punitive dam- pro- The inaccurate financial information ages firmly is now established statute provided and trial no ra- argued duced at law, part many and of the common jury’s tional foundation for award concept critics have concluded that highly prejudicial was to Robins. Any therefore, being expansion, abused. application of its areas of the law which majority’s to consider the ec- failure taking on only developing are now puni- of multiple onomic effect on Robins own, must be distinct character their damage in its tive awards review of carefully scrutinized. may prompt in future award this case plaintiffs in will awards favor of other quarrel majority’s I have no with the pyramid punitive damages against Rob- concept punitive dam- acceptance of Wheeler, level. See confiscatory ins to a products liability litiga- ages field of in the Reforming The Constitutional Case My problem fundamentally tion. lies more Procedures, Punitive Damages 69 Va.L. majority’s application puni- with the 270-73, Rev. 285-88 here, damages doctrine where there tive possibility may exists the that Robins punitive damages, The remedy of financially by subsequent pu- overwhelmed law, deep in roots ancient in medieval damage comparable awards nitive English statutes, explicit first received rec- opinion majority award in this case. The v. Money, in Huckle ognition in justifies the use same evidence that There, (K.B.1763). jury Wils. 205 was utilized this case as evidence which beyond justified going held the “small support can additional in subse- awards injury plaintiff” done to the because of the quent cases. desirability taking account of “a most upon liberty daring public made attack financial pyramiding The unfair of liabili- subject” through entry imprison- ty damage part punitive claims on pursuant nameless ment to “a warrant.” multiple plaintiffs throughout the Unit- Id. at 206. Later decisions which v. extended See Jackson staggering. ed States is remedy where Corp., Johns-Manville Sales to situations the defend- F.2d (5th Cir.1984) (punitive inap- dis- damages ant showed conscious deliberate are others, regard propriate re- Admitted- litigation). of the interests still asbestos ly, difficulty important perceiving in one I have how sembled those first cases punitive damages claims for in such a mul- IV.

tiplicity throughout of actions the nation I am preju- convinced that the cumulative can way be administered in such a toas dicial effect of the above-stated admissions avoid overkill and unwarranted cumulative along of evidence with the erroneous Roginsky, See punishment. financial prevented instructions the defendant from F.2d 832. One solution is the so-called receiving a fair I trial. would set aside the proposal “one-bite/first comer” jury’s verdict in this case and remand to recovery limit punitive damages would People the district court for a new trial. generally See litigant. to the first State Botham, (Colo.1981). 629 P.2d 589 Crookham, Young ex rel. v. 290 Or. (1980). 618 P.2d 1268 A second alternative ROVIRA, Justice, dissenting: would allow for the introduction of evi- join I with Chief Justice in his dis- prior dence the defendant of awards of sent, except part for that in which he ex- punitive damages or of criminal sanctions. presses agreement majority with the proposal require A third would that all “punitive damages are in recoverable con- single related cases be assembled before a liability nection with a strict claim founded court. Such a consolidation of claims (Second) on section 402A of Restatement possible would make it for a to make Torts.” Dissent at 225. punitive damage one award which could In unanimously adopted in 1976 this court appropriate then be held trust for distri- Motors, Hiigel in General among section 402A See plaintiffs. bution all successful Roginsky, 378 F.2d 832; S.44, see also We held 98th (1983) liability that a manufacturer’s strict tort Cong., (Product 1st Liability Sess. Act) fact, upon did not rest the normal (stating that triers of in deter- rules of fore- seeability, upon concept mining the but of enter- punitive damage amount of a prise liability placing prod- a products liability setting, award in a defective factor, uct into the stream of commerce. not- among “shall” consider as one We many, approval concept ed with that strict tort pending “all resolved and claims liability against shifts the focus from the conduct product the manufacturer or seller respect product ”). of the manufacturer to the nature of the to the ... product. however, proposals, None of these offers addition, complete concern; In pressing

a answer to this the court concluded that the yet, recognizes liability damage doctrine of strict covered expressly each the need for product injuries judicial legislative drastic sold as well as control persons property. punitive keep amount of in This extension of awards order to liability strict was decided prospective the cumulative total divided within also manageable dissenting opinion, court. In his See Jack- some balance. Justice son, Lee, joined by Kelley and Erick- 727 F.2d 506. Justices son, argued that remedies available to the mind, In my majority’s failure to plaintiff left were better “to UCC war- punitive address and limit the award of ” ranty provisions I read Justice Lee’s .... damages specter raises the of unnecessari- dissenting opinion to mean that since the ly punitive damage excessive awards in a legislature already provided remedy, had setting subsequent cumulative tort in ignore the court should not that act and anticipation multiple litiga- cases. “The judicial remedy. a different establish compensation damages tion for serves in legislature responded judi- In 1977 the this instance as an effective deterrant Jackson, adoption liability product future illicit conduct.” 727 F.2d cial strict liability by adopting An examination of the economic cases sections 13-21- at 526. -406, (1983 multiple punitive Supp.), 401 to effect on Robins of dam- C.R.S. -127.6, 6 age awards was warranted and would have sections 13-80-127.5 and C.R.S. (1983 statutory provisions appropriate Supp.). in this case. These been placing than punitive damage award rather liability and the product defined actions might fund for others who liability, cer- the award doctrine of strict established impor- provided Suggesting for a limi- some of the presumptions, injured. tain be manufacturers, against appropriately might tation of actions tant issues which sellers, legislature only or lessors. by the serves considered variety prob- highlight of interrelated judi- adopts yet another Today, the court legislative are suited for lems which better principles of strict cial extension of judicial rather than action. remedy punitive liability. applies the It legal created damages perceived void developed at an liability Product law has adequate- liability to by the failure of strict rate, increasing and lawsuits which ever ly punish those who market punitive damages add- claims for have been support safety. disregard of consumer damages compensatory to claims for ed decision, speculates of its the court exponential at an rate. have increased the of- magnitude of cost to because the public This court has not had benefit uncertain, punitive dam- fending party is hearings experts in order and the advice of decision ages will affect a manufacturer’s judgment at a reasoned as to to arrive marketplace, to introduce a punitive damages should be al- whether damages predict- punitive if were whereas liability litigation. lowed in strict Until certain, they simply become an- ably would acts, legislature either such time as the thereby doing other cost of business denying, authorizing permitting, such part of the man- induce a reluctance on the circumstances, I remedy under limited by removing a profit to sacrifice ufacturer impose judicial remedy another would not At 218. correctible defect. judicially adopted doctrine of strict on the liability product liability cases. majority My disagreement on rejection of starts out with its this issue punitive damages

the difference between fault, liability and no-fault. and strict context, liability

I in a strict believe the focus is on the nature

where damages appro- not

product, punitive are However, my important than

priate. more

disagreement punitive dam- as to whether liability applicable in a strict ages should be Colorado, The of the State PEOPLE my adoption of such claim is view that Plaintiff-Appellee, public policy which remedy is an issue of legislature and should be decided HICKAM, Lee Gerald by judicial legislation. Defendant-Appellant. appli- from the problems which arise No. 83SA243. damages liability punitive cation of strict require the bene- cases are substantial Colorado, Supreme Court economic research into the fit of extensive En Banc. implications of such a decision. and social June 1984. mind come to A few of the issues which impact financial on defendants are: the Rehearing on Denial of As Modified awards; subject to such industries July damages can be punitive of times number defect; the relation- for the same awarded compensatory punitive damages to

ship of

damages; effect of such awards

consumers; desirability of the social entire

allowing litigant to retain the one

Case Details

Case Name: Palmer v. AH Robins Co., Inc.

Court Name: Supreme Court of Colorado

Date Published: Jun 18, 1984

Citation: 684 P.2d 187

Docket Number: 81SA149

Court Abbreviation: Colo.