Sidney Roginsky v. Richardson-Merrell, Inc.

tiffs.3 Walsh, City Lawrence E. York New (Davis, Polk, Wardwell, & Sunderland Although liability of theories for Kiendl, Nolan, Richard E. E. Alfred compensatory damages had been ad- Schretter, City, New York Robert M. complaint, plaintiff in vanced with- Hallman, Costello, Ward, Tirabasso & negligence except up- all drew and fraud Shea, Joseph M. Costello and Mortimer Drug on the and Food Administration Shea, City, counsel), C. New York of for (FDA). Defendant for moved a direct- defendant-appellant. injury by ed verdict on all claims for City Rheingold, York Paul D. New unsupported cataract sufficient Krause, Shumate, Geoghan (Speiser, & proof of causation and on the fraud and Speiser, F. X. Ge- M. William Stuart punitive damage. unsupported claims as Gans, oghan, Jr., and Alfred New W. evidence; de- motions were City, counsel), plaintiff-ap- of for judge jury nied. The instructed the pellee. must first determine the issue of causa- ; plaintiff that, if tion it found for the MOORE, Before FRIENDLY and issues, pass upon it should then the other HAYS, Judges. Circuit explained charge which he in a to which exception. help- defendant took no He Judge: FRIENDLY, Circuit fully separate questions: six submitted diversity Sidney Rogin- In this action1 causation, negligence, (1) (2) (3) fraud sky sought compensatory to recover and FDA, upon (4) compensa- amount of punitive damages personal injuries, for tory damages, liability exemplary (5) primarily cataracts, taking from at his damages, (6) and the amount thereof. Pennsylvania drug, MER/29, in home jury gave all affirmative answers to developed by Richardson-Merrell Com- relating liability questions and pany lowering blood cholesterol levels. compensatory damages $17,500 fixed at Roginsky’s was the first to be tried of damages punitive $100,000, pending some 75 similar cases now in judge later declined eliminate Court for District the Southern Dis- reduce, F.Supp. rict of New On York. Several hundred ac- elsewhere, tions have been filed appeal its mo- defendant contends Pennsylvania 1. is a citizen of Plaintiff ty, $5,000 husband for loss to her corporation judge is a Delaware of services. The trial sustained principal place damages in compensatory of business al- the award York. though plaintiff’s been suc- cataracts had cessfully removed, new but ordered a parties stipulated 2. The that New York consented to a reduc- trial unless she applied. law was $100,000, damages punitive tion of case, Richardson-Merrell, Inc., figure previously In v. Toole No. awarded in this 524722, Superior Court, gee N.Y.L.J., 11, 1967, p. San Franciso In Jan. County, Calif., jury $175,- Inc., Richardson-Merrell, awarded v. Civ. Golden compensatory $500,000 puni ap- W.D.Wash., Apr., No. damages, counsel, peal stipulation tive the latter of which the trial dismissed on $250,000 light judgment $150,000 court reduced to on a verdict of pending the other cases and California who claimed the rendered for a requiring relationship injuries taking rule a reasonable same MER/29 compensatory punitive juries Roginsky. between dam In two cases have does gee defendant, ages. Ostopowitz Merrell v. Wm. S. returned verdicts for the Co., Supreme Court, County, Richardson-Merrell, Inc., Westchester Cudmore v. g.W.2d Y., (Tex.Civ.App.1965); N. Jan. awarded Lewis $350,000 compensatory $850,000 Baker, (Or.1966). P.2d 400 damages injured par- 1960, subject April sub- release should have directed tions verdicts label approved labels. argues granted; mission also that evi- been heading EF- stated, “SIDE erroneously admitted, under of it much dence reports have facts,” un- “Isolated support of what it considers vomiting, nausea, tem- been received count, fraud could substantiated vaginal bleeding dermatitis” jury’s porary prejudiced determination negligence heading of conduct issues of “CAUTION” and under warranting punitive dam- the award of warning shown has been “MER/29 objections ages. It also raises other entirely periods the safe in the to be complains receipt of evidence and long-term or studied, damages, “un- the award Periodic effects are unknown. lifetime restricted measurable less to fixed and long-term patients examination amounts,” process. We af- violates due necessary.” therapy is therefore compensatory firm the award During began Marketing the June find that the was not suf- 100,000 persons used of 1960 over balance puni- ficient to warrant of the submission drug, reports of cataracts. with the damage jury. issue tive Co., January 1961, & In Merck I. and sample of a had borrowed MER/29 reported synthesized supply, its summary undisputed then own of facts certain A developed cataracts. had animals that test will be useful from this enormous record sending Defendant, a team after by way was of introduction. MER/29 laboratory, make a Merck’s decided developed in the The Wm. late 1950’s experiment selected Company, on animals further of defend- Merrell a division S. lowering purpose ant, re- blood the Merck for the of it but did reveal profes- time most port cholesterol levels. At or medical to the FDA the high February physicians of believed that a level learned that 1 it sion. On significant Anticouni, precursor of Angeles, was cholesterol one Lee user in Los single atherosclerosis, leading cause cataract; the developed were facts had of death in the United States. de- later run down for reasons never veloped, nor and neither the FDA drug placed on the Before was profession Meanwhile informed. experiments market there had been 246 us- patients were thousands of additional involving had been 3907 animals and it cholesterol, drug, benefit patients to over human administered im- for the without moment levels Eighty under close clinical observation. reported portant effects. adverse per patients cent of these had used who drug longer experi- days for 90 or ex- rerun of Merck On defendant’s enced a reduction of cholesterol levels dogs developed periment, cataracts its averaging only reported side 20%. October, the- 1961. At same time effects were of several differ- dermatitis two, reported Mayo cataracts Clinic types, reports loss, ent two of hair using- three, patients who were later vomiting, report nausea and one of of these- effect The combined MER/29. drop count, in white blood cell two cases defendant, towas cause the two incidents vaginal bleeding spotting, three 18,1961, request FDA’s- on October tearing watering eyes, cases of warning permission letter to all to issue one blurred vision. In December being- permission physicians, then many of the clinicians who by law, required F.R. administering drug reported been Believing (1963 ed.). 130.9 21 C.F.R. § a conference of eminent scientists proposed too letter to be defendant’s physicians held under defendant’s au- permission weak, FDA withheld spices Princeton, N. J. stronger on a much one which insisted July approved mailed on 27 and defendant filed with the November Drug every Application (NDA) FDA a doctor on December country and also to salesmen. FDA cleared defendant’s MER/29. reports of With additional ing cataracts com- the doctor’s admission cross-examina- early during testimony from the field tion and the experts of defendant’s two plaintiff’s months of point on the cataracts were holding high-level deep intra-com- cortex and nucleus of the lens pany upon likely with- where conference decide senile cataracts are most when, April develop, about drawal rather than nearer the surface MER/29 Mayo reported usually ain Clinic cataracts toxic manifest where cataracts given year boy six high dosages old who been themselves. To this defendant added testimony experts to counteract a case slow severe development Roginsky’s cataracts, unusual in a child. excessive cholesterol Early April largely to with- which had at the defendant decided been arrested market; being trial, pointed draw from the to their senile time MER/29 April 17, toxic, than skin ail- was done rather and that his type had not that had ment using aged began Plaintiff, then generally preceded induced cat- February 1961. In June MER/29 noticed However, plaintiff’s medical aracts. wit- scaling, falling hair rashes ness denied such distinctions universal reported physician. which he to his between the manifestation of senile aggravated became These conditions despite plaintiff’s toxic cataracts and between treatment; year-end around the others, form of dermatitis and disturbing eye symptoms he noted experts cross-examination of defendant’s taking drug. stopped In about six the not all this without effect. With months appeared skin and hair conditions dis- supplemented by the abundant eye diag- ailment, but the later Roginsky’s symptoms generally that like cataracts, nosed as became somewhat by cata- had often been followed toxic worse; however, it has not suf- become rightly racts, the issue of causation was ficiently serious for him to have them jury, though to on our own left appraisal even removed. might find defendant’s well II. convincing. experts to be Defendant’s broadest contention III. is that a verdict should have been direct complaint Defendant’s next is that an sought plaintiff ed in its favor insofar as refusal erroneous to direct a for verdict damages for cataracts because of lack prejudiced it on the fraud count adequate proof induced that these were jury’s neg- consideration of the by issues Plaintiff on relied the tes MER/29.4 ligence liability punitive timony for dam- single physician, of a chief of ages. holding While our the evi- ophthalmology at the well-known Guthrie dence was insufficient to warrant sub- Hospital Clinic in Sayre, Robert Packer physician mission of Pa. the issue of testified in November 1963 and later dates various moots the latter branch of defendant’s slight eyes complaint, remains; found cataracts in both the former indeed opinion plain- and that he was of the awith rea force increased since one certainty arguments, amount of sonable medical tiff’s that much of the evi- taking complained properly these were caused dence of was sub- MER/29; jury he relied on litera “medical mitted to dam- on the many per ages issue, wayside. ture” “conversations” that falls changes developed sons who skin and hair rejoinder, Plaintiff’s further Roginsky’s taking like after also in the vice admission of evidence developed cataracts. special' fraud cured counts was jury Defendant claims afforded too found defendant verdict wherein the fraud, opinion negligence for an weak basis in view of as for liable as well challenge adequacy plaintiff’s does not hair Defendant of the skin and evidence that ailments were so induced. generally liability unacceptable. One’s ob- is likewise Defendant’s only to extend “to the jection fraud has been said suf- is not that lacked persons persons he in whom negligence or class but ficient evidence find expect act or tends or has reason to may evi- acted on irrelevant have upon reliance from action in dence, refrain much admitted since material misrepresentation” in fact so and who sins of omis- the fraud count dealt with rely, (Second), Torts Restatement relation § sion commission that had no (Tent. 10, 1964), sense, and in injuries No. plaintiff’s Draft in the save required specific charge negli- of information legally case insufficient on a by statute, persons gence, be filed all who if other- done justifiably Id. might have relied thereon. released wise the not have FDA encompass This a fraudulent at all. misrepresentation to or concealment asserts, plaintiff Defendant does affecting approved label FDA dispute, that mere violation of the patient’s or from the doctor if he is re Food, Drug and Cosmetic Act does not garded agent, plaintiff’s see Wech as the give private rise point to a claim —a Hoffman-LaRoche, Inc., Misc. sler v. which, agreement in view of the (Sup.Ct. Bronx Co. 99 N.Y.S.2d parties, Develop- we do not decide. See J.). (Rabin, 1950) On the other hand Law, Food, ments The Federal every “agent” regard FDA as Drug, Act, and Cosmetic 67 Harv.L.Rev. person States, plaintiff the United Plaintiff relies instead urges, would be to use words as a sub principle on the that a fraud action will If we were forced stitute substance. lie not practices when the defendant decide, say plaintiff we would that a directly his deceit on the simply out of fraud does not make a case also when he submits known false data by showing had been if the facts intermediary to an who be reason- fully stated, the FDA ably expected pass on, the classical drug.5 However, is an this released the being dispatch case of financial state- growing, Pros where the law is area agency. ments to a credit See Tindle v. ques ser, (1964), and the Torts 717-19 Birkett, 171 N.Y. 64 N.E. 210 largely become academic tion would (1902). Defendant counters that this liability implied drug cases if an new principle applies only when the false in- Drug Food, and Cos of the violation passed formation is to be on more or recognized. Given to be metic Act were such, less as and not when capacity predictors is to be of New our limited as simply used law, prefer to avoid de an overall evaluation we would weighty government and difficult cision of such a agency person whether issue, as to other ramifications with wide submitting may put product the data products, permissibly can. if we argues on the market. It on this basis plaintiff that should have been confined justified avoidance is We believe introducing evidence of misinforma- negli proof of defendant’s because tion or failure to disclose information gence, reviewed much of which is might have affected the label or opinion, such of this section Y was jury’s finding communication form whose could on that issue subject significantly approval. influenced have been It not FDA contends fraud on the of evidence admission proof there also insufficient of re- rather been It seems to have count. or in- liance on such false FDA the outset case from clear this submitted, complete as were so that data fight dam was about the real even “but-for” causation was not estab- important ages, fraud causation and with lished. plaintiff clearly not have released if 5. The case be different FDA met here. fraudulent burden not but for demonstrated —a misrepresentation or concealment variety issue, rationales: cisions reflect their collateral effects on that redressing feelings personal negligence; indeed, affronts we and not about susceptible strongly plaintiff measurement, suspect not Tul- if cf. Eng. willing only compensatory lidge Wade, accept 3 Wils.K.B. Rep. financing damages, cost of the action would never have deserving litigation only jury where small to be tried. The showed it- compensatory damages willing expected, only neg- simple self can be to find not ligence diverting good more; plaintiff’s desire for re- but a deal while venge peaceful channels, may the fraud into and serv- well have affect- ing punishment finding, scarcely as deterrence ed the latter for and could socially disapproved conduct.6 important have had an effect on the “Typical of the torts for which such put former. We are most reluctant damages may be awarded are assault plaintiff to another trial to recover deceit, battery, slander, libel and compensatory damages seduction, affections, ma- alienation of entirely giving; warranted prosecution, licious in- and intentional judgment shall therefore allow property terferences compensatory damages to stand. trespass, private nuisance, and conver- Prosser, sion.” 10-11 Torts § IY. (1964). merely strikes one is What not these, torts are intentional We thus come to the issue of usually single that tim; there is but a vic- damages, significance issue extreme punitive recovery by him ends monetary not terms to this de- matter,, except for such additional pend- fendant view of the hundreds of liability may provided by the crim- actions and to the inal law. well, longer range, (cid:127)as but from a pharmaceutical industry doubt, however, (cid:127)entire' There is no and to all remedy present potential where, has been drugs. extended to cases users although Plaintiff, course, defendant did intend does claim that plaintiff, harm the him; (cid:127)defendant he showed “such a intended to harm his disregard conscious negligence (cid:127)contention deliberate is that defendant’s interests of irresponsibility others that rose to such a his conduct level of Prosser, called willful extraordinary worse as to wanton.” invite this Torts 2 at 10 an exten- sanction. Such altogether sion was natural: from a remedy long history. has a Its standpoint moral there is not too much England first in articulation came in difference between the driver heads who illegal entry. jury case of The was held his car into a and the driver justified going beyond in “the small in- knowing who takes the wheel himself jury plaintiff” done to the because of the probably to be so drunk that he will hit desirability taking of account of “a most caring someone and not whether he does daring public upon attack made the liber- not; important or is as to deter ty subject” through entry and im- type the latter of conduct as the former. prisonment pursuant to “a nameless war- But such first cases still resemble those Money, rant.” Huckle 2 v. Will.K.B. respect important considered in an —a Eng.Rep. (1763). 95 768 See also high probability of the number Wood, 1, 18, 19, Eng. Wilkes v. Lofft 98 plaintiffs Rep. (C.P.1763). will be few and that will Later 498-99 de- Torts, literature, Law of Harv.L.Rev. 517 of 70 6. There is considerable Morris, (1957); Damages following only in Punitive are a few ex- which the Cases, Injury article, very amples. early L.J. 21 State An much Personal Ohio still Morris, Note, Imposition (1960); reading, Dam- 216 is Punitive worth by Reap- Oases, ages A Punishment praisal in 44 Harv.L.Rev. 1173 Civil Courts: Tort Damages, (1931). 41 in of Punitive N.Y.TJ.L. later treatments the law For Exemplary Damages (1966). Note, in see Rev. 1158 reviews single corporation join, join, in a feet of the actions of the or be forced can * * * and, hand, the other trial.'7 potential number of actions similar by engendered legal difficulties may that wide effect one damages part punitive on the for claims subject.” Yet it render the defendant staggering. plaintiffs are of hundreds in hard to see what even the most damages in punitive If all recovered telligent this, being jury do, with would would run amount awarded here these punitive inherently know what unable to millions, into as contrasted tens juries damages, any, in other if penalty of “im criminal the maximum plaintiffs ac in states award other prisonment than three not more yet prin tions know of untried. We $10,000, years, fine of more than or a ciple whereby punitive award the first fine”, imprisonment or both such damages punitive all exhausts claims 333(b), for each violation U.S.C. judg preclude future Drug thus Food, Act with and Cosmetic ;10 is, judgment ijitent if Toole’s ments there to defraud or mislead.8 We have California, plaintiff’s in fn. which gravest perceiving difficulty in how earlier, brief tells us would bar came punitive damages in such a claims for Roginsky’s. seem either multiplicity throughout Neither does it of actions the na practicable punitive fair re to limit so to avoid tion can be administered Judge number coveries to indeterminate overkill. did all that he Croake first-comers, leaving instructing here, jury it to unascer some could “may potentially enough,”11 cry, “Hold, consider wide ef tained court withholding 7. It some is of interest the section and mak- information Wrong on “A Results A. Defendant’s Which E. D. It false statements Injury plead in Than Plaintiff” More One nolo contendere was allowed to pioneering $10,000 eight Professor Morris’ article and was fined counts $80,000 deals with a where defendant case in all. United each count injured persons. Inc., Richardson-Merrell, two It suit discusses a Crim. States resulting recovery 1964). (D.D.O., seduction June 1211-63 No. punitive damages young lady, both Dillon 9. In contrast Mr. Justice promise who sued for mar- breach Ostopowite New York action riage, father, her 44 Harv.L. jury 3, thought courts, see fn. 1194r-95, citing Shaw, Rev. at Luther v. told, that of other not be scores “could 231, 234, 157 Wis. 147 N.W. being throughout country juries are (1914). Even here Professor Morris was impose penalties against asked concerned that admonition “over-severe wrongful same same result;” was almost an inevitable Cheetham, 3 Johns. Tillotson v. act.” Of. thought that “The least that should be apprise done situation is v. Roman not read Gostkowski second plaintiff We do the treatment which the Hearts, Catholic Church of Sacred received the hands of the 320, 325, first,” suggested N.E. 262 N.Y. that it even would be recognize to mean will better to withhold assessment of damages damages compensatory out claim for until one either case single in- conduct of a course of tortious had been and in determined holding many persons. simple juring joinder. that a eases to force a If these sepa- punitive damages could cases where husband a son not have amounted worries, provoked of a rela- $2000 to rate recoveries for desecration such what of problems grave by there was the was rather that tive’s raised hundred of suits family jurisdictions injury feeling. any single punitive a In in to different with damage running New York’s views could affect claims event into the millions! power torts had of other states where the general statute, 8. The statement false 18 been committed. 1001, provides U.S.C. fine of not a $10,000, imprisonment way than more for not in which all If there were years, single than five or both. more Of course a could assembled before cases be may drug court, proceeding in a manufacturer commit more- a limitation respect single jury admiralty, might possible than one violation with drug. to a for a charged appro- Here defendant was one award to be make held violating priate among counts with twelve 18 U.S.C. § distribution all success- 840 hope require, example, in the that others would follow. would a reduction jurisprudes comprehend $100,000

While why of thing instant some the award to range, $5000-$10,000 Toole in off California should walk in the still compensatory leaving $250,000 exposed with more a than to several damages. recovery Roginsky exemplary in the Southern million dollars of Ostopo nothing of perceive District and Mrs. York New York in the New We County $100,- prevent witz in reduc Westchester with that decisions would 000, laymen damage judges of ing punitive most and some because award a arising understanding difficulty large out have suits the number why worthy by presumably equally plain the defendant.12 same conduct the Judge nothing indicate equally tiffs cases before 75 But there such follow country New York would Croake or elsewhere in the should that willing get course, otherwise And, a state less none. the whatever might be self-denying right impose limits may theory, result be in strict until assured disinclined so expect think do it somewhat unrealistic to say suit. judge, others would follow Mexico, in New to tell jury that their fellow townsman should Although multiple punitive awards get very by way punitive little dam running add hundreds into the ages because Toole in California Ro process, neverthe- up due a denial of ginsky Ostopowitz and Mrs. highest sitting as the less we were if stripped cupboard had bare, even con- would wish of New York we court assuming the defendant would want such awarding very seriously whether sider charge, still unrealistic to respect the punitive damages expect jury the would follow such negligent highly negligent —manu- —even that, they didn’t, instruction or if governed facture sale judge the would reduce the award be drug requirements, es- federal food and low going’ what had become rate. strengthen- light pecially in ju There is more to be said for drastic amendments, 76 these the 1962 dicial control of the amount of vigor- present Stat. 780 keep prospective awards so as to total enforcement, would ous toward attitude manageable within some good. manu- bounds. This than not more harm A plaintiffs, although ful even as to of two was reduced each defendants apparent. per- against $100,000 the difficulties are appellate But we division way accomplishing except against ceive $50,000 cor individual and by legislation requiring likely all porate claims in re- It seems defendant. spect drugs supervised by the FDA dam in that case conduct defendant’s indeed, asserted aged federal courts trial others than Faulk — —hardly a justified large jury course. desirable verdict court punished ground that 12. The New York courts shown con con effect their the defendants many siderable “upon readiness to reduce the livelihoods of duct damage See, g., Toomey 302, awards. e. persons,” v. N.Y.S.2d 35 Misc.2d Farley, 71, 840, 2 N.Y.2d (N.Y.Co.1962) appellate 156 N.Y.S.2d di —but (1956); N.E.2d 221 Kern v. News con it had vision did not indicate Syndicate Co., multiple possibility A.D.2d 244 N.Y.S. suits sidered (1st Dept.1963); 2d Conceding reducing McMahon v. award. Publishing Co, “vicious, App. New York News conduct defendants’ * * * (1st maliciously Dept.1900); Div. deliberately 64 N.Y.S. 713 Co., * * Manekas planned *, Allied Discount sem Misc. all without 2d (Kings justification,” 166 N.Y.S.2d 366 Co. A.D.2d blance 1957). “It the well-known case of Faulk the court said: 244 N.Y.S.2d at Aware, Inc., 464, v. keep duty 19 A.D.2d 244 ver N.Y.S. a court is (1st Dept.1963), aff’d, 2d damages 259 punitive 14 N.Y.2d within reasona dict for 899, 95, purpose considering 252 N.Y.S.2d 200 N.E.2d 778 bounds ble (1964), denied, 916, cert. 380 U.S. 85 mala as well fides achieved 900, puni particular S.Ct. 13 L.Ed.2d at Id. 801 a case.” damage $1,250,000 against tive award of 266.

841 many against distributing bility protect policies this can facturer government held,14the cost have under risk as several courts of users thousands regulation scarcely requires providing probably de- addi- needless this manifesting terrence, social few manufac- tional for measure damages punitive for assuring disapproval deterrence. turers whom sought compensa- negligent heavy highly but penalties are conduct Criminal tory damages, under the thousands from whom it never will recoverable neg- be, consuming public; passed proof of is without on to the circumstances even they ligence, sufficiently cannot, these if meet as is held other courts should commentators, 6, Note, supra N. objectives, 41 most note recommended 1171, sufficiently egregious factors error as one and the other a product Y.U.L.Rev. at punitive are justifying awards cited as can end the business life of compensa- lacking.13 Many wrought good awards of concern that has much damages some- past might tory doubtless contain con- otherwise have thing element, punitive many future, of a to do tinued so in the separate ex- suffering if a award would so innocent stockholders extinc- damages Even emplary single were eliminated. tion of their investments for a though products liability management insurance blunts sin. compensatory deterrent effect However, the New York cases coverage policies is often under such predicting afford no basis for our that- extent, the total to considerable awards Appeals adopt the Court of rule usually limited, experience is reflect- bad disallowing punitive damages rates, affords in a case ed future and insurance damage protection reputation this, wisely such as Erie and the doctrine among pharmacists physicians which engaging prevents our in such extensive present inevita- law-making liability, like the must instance a sub on local tort bly hand, ap- produce. the other ject people On New have which York parent impracticability imposing an legislature and, entrusted to their within ceiling punitive courts, effective on awards appropriate limits, their own hundreds courts of suits different more modest not to us. task is the Our aggregate which, when sufficiency result in an assessing one damages, large piled compensatory framework of within the catastrophic If lia- could reach amounts. punitive decisions on the award Compare Sheldon, extraordinary remedy 10 N.Y.2d Walker v. whether 401, 488, punish- N.E.2d 497 necessary 223 N.Y.S.2d 179 the desired to achieve (1961); Fittipaldi Begassie, deterrence,- ment, etc., A.D.2d 18 Pow- see James v. 1963); 331, (4th Dept. ell, 239 N.Y.S.2d 792 N.Y.S.2d 19 N.Y.2d Corp. I. Park (1967). P. v. 201 Central H. reversed court N.E.2d 741 Corp., damages punitive South 16 A.D.2d 228 N.Y.S. fraudu- an award 1962) J.), (1st Dept. (Breitel, purpose lently conveying 2d 883 with the assets permitted damages judg- thereby evading payment in cas- of a of ment, saying provided es where would theretofore remedies denied, solely conveyances did but so because are effective fraudulent particular compen- those satory situations “the the windfall of there is “no need” * ** damages suf- the victim to to induce wrongdoer Change from N.Y.L.J. fice” to deter and others cit. suit. institute contemplating conduct, to, N.E.2d at 747. similar and thus 279 N.Y.S.2d at provided “the circumstances a rare Note, Coverage and the in which the tradi- Insurance recurrable instance See Acci tional fall remedies would short of Punitive Award Automobile effect- just (1957) supra, Suit, Corp., JET. I. P. dent U.PittXRev. result.” r supra Note, Harv.L.Rev. at at 888. note N.Y.S.2d very 526-28; Morris, supra 6, 21 note Ohio For recent indication that 222-27; Prosser, selectively permit Torts § New York courts will L.J. State depending punitive damages or disallow at 13 842 this, (1874); Wright Falls, damages for As v. Glen S. recklessness.15 47-48 R., 617, H. Ft. 24 48 consequences & E. R. A.D. St. are

we convinced (3d 1898); Dept. 1026 v. N.Y.S. Rowe damages imposing punitive case Brooklyn 474, Heights R., R. 71 A.D. present like are so serious 1902); 893, (2d Dept. 75 N.Y.S. 894 Appeals York sub- New Court Taylor, App.Div. Walker v. Lord & 236 ject proof particularly careful 111, 1932).17 (1st Dept. 258 96 N.Y.S. scrutiny.16 York, words, New adheres “complicity holding rule,” V. the cor porate damages punitive master liable for parties The are in substantial “only order, superior when officers either agreement point on one York New —that participate ratify in, outrageous con punitive impose damages does not on a supra, Morris, 6, 21 duct.” See note corporation unless, charged by Judge as Ohio St.L.J. at 221.18 Croake, directors, “the officers or is, management” company of the York courts have New authorized, variety the relevant phrases division “either used a to describe participated in, or, culpability,” consented to after the “moral Walker v. Shel discovery, giving don, 401, 404-405, ratified the 10 N.Y.2d conduct” 223 N.Y.S. damages. Cleghorn 488, rise to 491, (1961), 2d New 179 v. N.E.2d 497 R., York 44, support damages Cent. punitive & H. R. R. 56 N.Y. which will juncture, applying 15. At this we shall assume rule at bar case parties sufficiency “management” presi- have done that includes vice-presidents the evidence is to be determined accord- dents and of Richardson- Division, to state law. See the discussion in Merrell its Wm. Merrell S. paragraph opinion. whether, the last of this we need not decide under New law, supervisory the acts inferior 16. We have considered whether it would employees would otherwise deemed the preferable pending to withhold decision corporation purposes of the acts probable appeal Ostopowitz case, assessing punitive damages. See, g., e. 3, through hierarchy see fn. Corrigan Co., v. Bobbs-Merrill 228 N.Y. York courts. “Abstention” is not favored 58, 71-72, 260, 126 N.E. 10 A.L.R. 662 diversity litigation, City Meredith v. (1920); Imperial Engine Co., Rose v. Haven, 228, of Winter 320 U.S. S.Ct. App.Div. 885, 888, (4th 127 Dept. 1908), 112 N.Y.S. 8 7, 88 L.Ed. 9 and while continu- 515, affd, N.Y. 88 N.E. ing a federal suit until the determination (1909); Montgomery Gill v. Ward pending of a in the case state court that Co., 294, 288, & 284 A.D. N.Y.S.2d 36 129 involves the same issue of law is consid- Dept. 1954). (3d 49 A.L.R.2d 1452 erably less burdensome than abstention rule,” continues, “wisely pro- 18. “The sense, ALI, Study the true of the Di- corporations liability tects from vicarious vision of Jurisdiction between State punitive properly when su- 1371(e) Federal Courts and Commen- pervised disciplined employee acts tary p. (Tent. April Draft No. outrageously; wisely and it allows for 1966); City cf. v. Meredith of Winter damage against awards some cor- Haven, 320 U.S. at S.Ct. at porations whose institutional conscience delay here could reach well into 1968. be aroused.” should Moreover, plaintiff sought judg- has keenly Professor Morris observes that applica- ment of a tion of New York law he court on federal determining a crucial factor whether right had a permitted should be to award ex- the emplary do, party neither a de- indicated damages against corporation stay hand, sire that and we “the calls for institution- whether case Ostopowitz not know to extent the what al, likely forthcoming to be correction not may record other differ ours. Whether damage award.” IMd. without plaintiffs district court Supreme followed Court the com- prefer to await final determination of “general juris- days plicity rule Ostopowitz suit is different matter. Michigan prudence.” See Shore & Lake asserts, Ry. Prentice, plain- 17. Because defendant 147 U.S. Southern dispute, purposes tiff does not L.Ed. S.Ct.

843 15.05, Consol.Laws, 40, McKinney’s c. § v. In Caldwell torts.19 nonintentional subd, 3: 282, Co., Jersey N.Y. 47 Steamboat spoke Appeals respect (1872), recklessly person 296 the Court acts “A * ** it said Later recklessness.” he is of “utter when aware result disregards consciously and be reckless “must sub- conduct of and clearly nature, establish- unjustifiable risk that criminal stantial Cleghorn & H. Cent. New York ed.” v. occur or that such such result will 44, (1874). It has R., R. 56 48 risk must R. N.Y. circumstance exists. or ma- degree as “wanton also used such terms dis- be of such nature outrageous,” gross gross licious, regard Powers or de- constitutes thereof 178, 182, Ry., v. Manhattan 120 N.Y. standard conduct viation 295, person “conscious observe 24 N.E. 296 that a reasonable would indifference of his acts.” effect in the situation.” Church Gostkowski v. Roman Catholic Obviously this definition would 320, 323, Hearts, of the Sacred 262 N.Y. drug placed a met if a manufacturer 798, (1933). Very 186 recent- N.E. 799 any program, test the market without ly Department spoken the Third practice unlawful fed now rendered “ recklessly action ‘committed or wanton- management legislation, or when its eral ly, e., regard rights i. without to the dangers program had disclosed knew the plaintiff, people gen- incomplete serious mischance ” Soucy eral,’ Greyhound Corp., A. v. 27 respect. Sufficient in some material 112, 113, D.2d 276 N.Y.S.2d 175 if, proof after also be furnished (3d Dept. quoting Magagnos 1967), v. market, placed Brooklyn Heights R., App.Div. R. 128 to have was shown manufacturer danger 1908). (2d Dept. to have N.Y.S. aware of become closing deliberately its nothing, done In an earlier decision that court had hand, in fail eyes. error the other On negligence” "culpable held that not hindsight demonstrates to make what enough punitive damages. to warrant response proper to have been the —even Luther, App.Div. 701, Noonan v. enough “gross” to warrant not error —is 1907). (3d Dept. 104 N.Y.S. 684 What submission through study comes from a of these and Wolf, 140 jury. N.Y. v. Cf. De Marasse many other New York decisions is that Co.1955). (Sup.Queens S.2d 235 give that will recklessness rise to properly re judge did not punitive damages must be close crim- showing strict Damages inality, N.Y.Jur., see 14 have been aware defendant should p. conduct, that, like criminal cataractogenic, since that MER/29 “clearly It must be established.”20 show the de evidence tended this other appropriate therefore seems to look to attitude toward fendant’s overall authoritative New York defini- latest danger eyes. drug including recklessness, expressed tion of Blackmar, 440, 445 64 N.Y. See v. Voltz Law, legislature However, (1876). presence of Penal in the Revised argument accept plaintiff’s slight a nuance as not and our own is so We determining standard, truly that, are material. judge’s charge to the confined exception except. apparently to this did not What we Libel is since defendant leading considering general case of defendant’s claim rule. See are here Ass’n, appropriate Evening v. Mail 75 N.Y. the case was Samuels dissenting opin- submission, (1878), adopting the not a claim that the ver- (1st reported in an in- 9 Hun 288 because based on ion below dict cannot stand fact, 1876). Dept. Accord, e.g., Warner of the law. correct statement Co., however, Judge Publishing N.Y. between difference Press concept of the New York rule N.E. 393 Oroake’s reception King, supervisor, led to the fraud count her immediate she great prop- changes. Maanen, that was not deal of evidence made the But Dr. Van cognizable erly Biological Science, on the of issue Merrell’s Director of . insufficiently damages reported was because it was also a subordinate who to management. president director, If the the vice and connected with research dismissed, Werner, should been Dr. fraud and was not count there submitting slightest think, this evi- as we tend to evidence that latter or higher dictating jury authority for a new to would call dence his knew of damages.21 change this Equally trial But we as to in the observed data.22 point, puni- need holding this of not decide because irrelevant to of the issue by evi- tive King that there was insufficient was error another Dr. management reporting dence misconduct sub- experiment of an on fe- justify of rats, male mitted verdict all of which were shown to punitive damages. attempt An to ana- have exceptionally heavy under died dos- age. lyze by every item of relied on proof evidence Here also was no there of management prolong opinion to this complicity, nor was there length any showing King’s even more inordinate than it that Dr. error was assumed; Moreover, limit to the evi- ourselves deliberate. it has not been significant help- clearly dence most deemed shown that either of these mis- reports plaintiff. ful truly to the material. episode most inflam- earliest and The

One of the next study relates to a matory part ending February items was this: As rats 1960, of Drug Application to the New FDA, submitted thirty which received ten times the rec- reported a 16 month dose, thirty ommended human received study monkeys, pairs one. three times, thirty five trol, served as a con- being given pair each autopsied a third of each to be being plan a control. The three, respec- six and twelve months dosage times start the at two and a half tively. autopsy opac- At the first corneal dose, anticipated (not human and then cataracts, ities are lenticular opacities) eight were to ten times. raise first to five and then observed in out of twenty drugged experiment by the had conducted been rats. This was toxicologist, Smith, Getman, president known general had who left it; manager employ company’s reporting Division, of the Merrell before King, successor, reported write-up Murray, his Dr. the FDA. Dr. none, charge how- assistant to the contained numerous Vice President errors — ever, Research, shown to have man- wrote the FDA that a con- known.to agement thing sultant one was much had advised corneal —and laboratory changes laboratory worse. A testified technician were common in rats inflammatory. to an and he occasion when had submitted she them to believed graph weights believing final of the mon- record affords no basis for keys company’s opin- to a Van Maanen who directed this was Dr. sincere weight her to increase the shown for ion. Later there was an inci- increased weight monkey dropped drugged one dence whose cataracts rats weights rats; and to show for others as well as in some of the control 25% for although reported two weeks after in fact been ' former was not autopsied; complaining was, after to Dr. the latter is no there evidence subject qualification 21. This Van un- Maanen himself used MEB/29 properly market, could til have been con- its withdrawal from the as did proof finding Werner, president sidered if the warranted vice and research director, general manager Getman, president that misconduct was so subordinates widespread to indicate authorization of the Merrell Division. practice management or a deliberate eyes However, keeping closed. nei- predicates ther of these was established. through management with the addition- should follow was aware of the clinical work al animal work failure. prove analog out in order on this report King either Dr. also failed to inferiority superiority and or its relative management develop- the FDA a substitute thus have it available as dogs on a ment of cataracts two trouble, gets into the event MER-29 study February 1960, ending month three improved perhaps later as introduced descrip- modified his to which also goes on product.” The memorandum Again there tion of other abnormalities. pros licens- and cons various discuss management was is no evidence that thoroughly analog tested not an this; furthermore, the whole aware of manufacturer pharmaceutical another dogs study were was since the worthless no findWe do the work. who would by distemper and viral contaminated plaintiff inference for the sinister basis hepatitis, it rerun with when draw; picture is rather the would dogs, opacities observed. sound were reasonably it company satisfied Plaintiff much makes of a memoran- despite known good product some May 17, 1960, shortly dum dated before con- “toxicity animals” in the lower put market, on the between MER/29 sidering another with do what company vice-presidents two copies prove might might better. not or higher officers, concerning still an brings receipt of the to the This us analog developed which had been in the January report & Co. from Merck experimentation. Seizing course of on a dogs which we 1961 as to cataracts phrase suggested desirability which this, mentioned at the outset. Since having analog “available as a sub- minds, information first was the gets stitute the event Mer-29 into management reaching in- which trouble,” argues plaintiff supports could have dicate that MER/29 an put inference that defendant MER/29 it un- make as to effects serious side on knowing the market it would qualities, despite safe its beneficial get trouble, very into at the time when severely scrutin- must be officers’ action product plain- better inwas hand. But ized. phrase quite tiff takes the of con- out text. The fact response is dis- letter immediate Defendant’s company’s general policy cusses the Werner, vice- research its Dr. to send licensing drugs King to other manufac- Dr. president, Maanen Dr. Van application policy laboratory. turers and the of this The decision Merck analog. says that ani- It was to rerun their MER/29 made on return performed mal work to date “indicates this was not experiment. On its face question toxicity conduct;23 as to the on the or reckless heedless analog (just in the lower animals contrary, accepted Merck re to have does), MER-29 itself work with ir port conclusive would analog possibility it indicates be even Apart better responsible. Although syn than MER-29. lot ani- Merck differences of chemical work mal would have to be done to tie drug, defend point on which thesized question toxicity, plain down better ac- heavily to which relies but ant product, effectively responds did etc., tion of the Merrell this could be tiff * * * significance of sample,24 done. view the tremendous for a not ask ques importance analog, was called MER-29 and this Merck results being beagles, probably dogs’ are by which will be decided that Merrell tion post sample litem 23. At the same was obtained time defendant an em- 24. When a library ployee motam, drug on its Merck do research on toxic cata- used impurities. signifi- racts. fail to contain We see the sinister found to animals was this; cance on the attributes contrary, entirely pru- such action seems dent reasonable. Werner, prone, find that Getman and and defend known to be cataract principal inbreeding suspicion on this which the two decision-makers ant’s matter, who continued to use the results. have further invalidated consciously disregarded themselves, Indeed, the serious criticism unjustifiable risk of substantial and over what defendant did but what aware. which were notify FDA, failed to the medi- do— profession, cal scale is both. does think the Plaintiff Neither regulations incident, tipped contend that FDA re- Anticouni quired report shortly Dr. Mc the Merck followed thereafter. results, requirements Master, being medical re then lim- associate director reporting Division, ited experiments had first results search the Merrell May done in the from a manufacturer’s own heard of Anticouni labora- tory investigator Angles cardiologist, an one of the clini who Los had been drug. administering furnished the who See cians had been C.F.R. § 130.4(c) (1963 ed.). experimental The claim basis. is rather that, though cardiologist reported even proof Anticouni is no then there direct very that such notification was had severe dermatitis considered and exhibited rejected, logic its apparent he due to was so was unable to as which evaluate permit to taking, to patient’s an in addition inference that the defendant dose, didn’t want the to the FDA of the at twice recommended know MER/ several other drugs, Merck results for fear one of which order warning accompanying the drug be the from the market to since removed drug production stiffened or ef withdrawn, side the cause its toxic physicians including didn’t want Mc to know for fear fects severe dermatitis. unduly frightened. would be offered As- asked for records and Master suming jury investiga a provide could find that for further this was to funds so ; repeat that defendant on was tion several later occasions he motivated request commercial considerations as ed former but result. well without as a potential February cardiologist 1, 1961, desire to benefit of On victims granting report atherosclerosis and agement Anti called Dr. that man- McMaster to that experiments knew had care said its own couni left his and was to had opacities developed disclosed rats, corneal to be con we cataracts and fail sulting attorneys. to physicians see how this meets the definition again reckless cardiolo to indifference human life McMaster asked question gist’s health. The He on files but did receive them. that score not is nothing when, not what did until on defendant feared the June a FDA Angeles, trip doctors would do he files to Los examined the what feared sought enlightened, would do. Here the but was not Merck re- MER/29 port, noted, ophthal with the infirmities we have obtain name of Anticouni’s against mologist episode had to be set the belief de- This without success. Getman, gener management, only fendant’s erroneous in was known to at least in a respect, argument one way. Despite minor that had al cataracts defendant’s reported hearsay, report ever been 4000 animals that mere that was previously including monkeys, drugs taking tested the other Anticouni was dogs humans, likely which are closer than were as as to have caused MER/29 patients cataracts, in the 2000 under clinical ob- a cataract in this car many months, senile, patient likely servation for or in diac of the 100,000 patients toxic, variety, who used could find had varying periods energy greater its in that failure since release to exert running report neglig June 1960. We cannot how these allowing down this However, circumstances warrant McMaster’ssloth would ent.25 Apparently directly McMaster made no Anticouni after had effort contact latter cardiologist. left the finding the memorandum to another un ferred vice support of recklessness Stormont, president top company, of the one the evidence warranted assumes less although promptly reported finding who time inconclusive, seriously apprehensive as to facts hair effects were reason to be weight humans, cataractogenic in- the evidence seems to “the MER/29 may produce dicate that assumption find no MER-29 we which changes very proportion hair in a small sufficient basis. warning should of cases” and that developments continuing with Before fine, proposed. far be revised as So cataracts, must recount “par- didn’t added but Stormont episode on heav- another suggestion ticularly like” Dr. McMaster’s ily participation relies because warning to read be broadened management plain. March On “changes color, texture, or amount” of the President Woodward Vice “loss,” sounds rath- since “this instead addressed memoran- Merrell Division frightening”; memoran- er McMaster’s par- Richardson dum President that of the 51 cases dum disclosed Getman, copies company, ent changes, in- five had of hair Murray, Werner, McMaster color and six Dr. Mc- cluded texture. hair, phe- side effects agreed sugges- Master with Stormont’s experience indicated nomenon which later proceeding tion. Richardson authorized infrequent precursor of cata- to be a not letter, along lines,26 these limited reported racts. Woodward com- April thinning, went forward pany reported “had initiated a review much about To us this seems ado rather thinning people taking of the hair of recognized company obli- little. The MER/29,” that this had 51 such disclosed gation public to inform the FDA and reports users, 300,000 out of and that hair thin- what it learned about had “morally legally he and felt Getman ning though reported this been even had promptly warning bound” to alter only of the users. Decision in 0.017% accordingly. giving He recommended hair effects not of the other advise warning despite this the risk that reported by of the users does 0.003% might provide the FDA with an occasion fit our notion of reckless wanton to re-examine Merrell’s entire NDA: conduct. changes point “we have made no to this report had included literature, in Merck of our Since the basical- MER/29 dogs, ly defendant had rats27 as well because were afraid ‘stir study pot’ Washington” that a in addition to in initiated rat since “we have heard n eye began develop dogs. from rats on The several sources that at times FDA August, but there reopening has difficulties June and considered file NDA management but, frankly, learned is no that evidence we do whether not know later, this is true.” He a of a the ex- enclosed draft until much when of this proposed referring nearing completion. periment to the “to letter FDA What was concerning reports thinning they several 1961— did learn —on October changes changes although proposing texture of hair” that ocular Sep- warning dogs to add late as brochure had occurred as accompanying (including on words “and an examination tember MER/29 thinning September re- Merck scientist of the hair.” Richardson 20 in which a copy advised His memorandum Merck Woodward’s 27. Defendant claims following developed corneal bore the handwritten endorse- rats had opacities had ment : similar those “Summary rats; expect publications a memo- on noted defendant’s —can thinning. Important get hair from in the fall bro- Merck randum obtained developed change happens. cata- rats chure Also said the had before of 1961 play who desirable to ball with Talbot racts. through got protest. Talbot over #29 authority to OK.” Talbot was an FDA doctor. dog participated), developed reported had in a had memorandum from Dr. Murray September exactly Getman, a cataract six the FDA did pertinent months ther- not have after onset sufficient facts to de- MER/29 apy, warning letter, and had lat- become blind week cide that it feared 28; report develop- er also told of side effects be more severe opacities stated, ment of corneal extensive than “might, therefore, misleading most of that the letter synchronized rats. bad This news be and lead Mayo physician from the curity.” information Clinic at of se- false sense Rochester, Minnesota, patients two wanted all facts avail- FDA taking had able to the been found to have defendant “on the cases of eye changes, including question cataracts “and that there the actual case records,” having copy proposed the cataracts been associated a written letter, with administration of Dr. and a statement that defendant MER/29.” immediately Rochester, “supplied toxicity McMaster went had all data ani- patient including man, learned of a third who de- had mals that available veloped cataract, York, returned to to us from Dr. outside sources.” Nestor physicians and recommended that all recounted discussions of MER/29 warning sent experts letter. It is common with several who concerned were ground that, regulations as FDA then with “numerous other serious ef- side stood, (1963 ed.), enumerated, 21 C.F.R. 130.9 ad- fects” which had ex- permission by agency pressed vance quired. feeling re- the FDA’s enough suspend approval drug, had told of advice proposed pro- letter to the medical claims their statistician that Merrell’s fession was first read to the over FDA significant lowering cholesterol telephone began on October 18. It meeting A was ar- were true. levels ranged by saying purpose you “is to advise di- and Getman October therapy those cases where MER/29 requests fully rected that the FDA’s should be discontinued.” It recited apparently Meetings, met. them reports there had been “a number of stormy, rather held on October were loss, changes hair in color and texture again 2,29 and 21. November hair, -of and dermatitis” and that “more Meanwhile, on October 20 defendant recently, opacities lens have been observ- wrote, do, as it was free to to clinicians ed in patients following four severe der- administering drug who had been immediately matitis.” drawing It advised with- high telling dosages, at ported of the re- them changes “if hair MER/29 cases, in num- cataract four now warning patients skin occur” and to ber, strongly urging and discontinuance report watch for symptoms. and changes ap- of the if hair or skin proposed letter went to describe peared. placing It new ad- discontinued n types of dematitis and hair loss that vertisements and to instructed salesmen therapy; would indicate cessation it samples promotional return all and litera- by saying concluded that “Your adher- approved ture other FDA than the label- presented ence to the cautions will here ling, cautioning them, however, not to permit you effectively to use MER/29 samples mention that their had been re- your practice.” sought called. Merrell also the advice Dr. telephoned Nestor of investigators the FDA independent ear- of two clinical ly following morning. said, professor He as and who had chaired the Later, by early November, history” important drug all of in Merrell most dogs developed cataracts. “intended to defend and that Merrell company every step,” that if the meeting, 29. At this Dr. when Nestor voiced out- that inherent risk “decided personal opinion his that should MER/29 efficacy, they (FDA) weighed withdrawn, expressed be Getman himself being would do have to action as we as not take shocked. Woodward told Nes- biggest tor “was the it first.” MER/29 attempt to the FDA to submit inade- whether conference Princeton quate report- version of what Merck from the withdrawn should be MER/29 market; ed, in its instructions deficiencies market- continued all favored discussed the most salesmen —we have warning. strengthened with a damaging the rest adds evidence approved The letter the FDA on issue, real little to a of the resolution November 27 and sent December reasonably could find whether physicians all all the defendant’s proposed letter defendant’s by noting began salesmen that while cover-up permit continued sale a mere “comparatively few serious clinical in- caring whether without MER/29 juries reported date, their have been Here, or not. would cause cataracts possible significance emphasized by is decision case of defendant’s findings from animal studies.” It next pro- the medical to alert the FDA cases, told of the four human cataract report, every- the Merck fession as to involving patient receiving one rec- thing depends If one starts. on where daily dosage mg., ommended concluding there fair basis was a opac- added and corneal that “cataracts of the rat and combined effect produced ities also reports dog experiments and the in animals.” It said slit MER/29 Mayo Clinic had convinced defend- lamp necessary examinations were management ant’s had a MER/29 early detection of cataracts thus were significant cataractogenic potential prior periodically “indicated to and dur- humans, certainly question could be ing therapy.” The letter went on with However, answered in the affirmative. changes saying changes, hair and skin find no sufficient warrant these related to be each other management a conclusion that enter- cataracts, and to and recommended that again tained such belief. Here therapy be discontinued im- by hindsight. easy all too to be misled mediately on their occurrence. It also dogs eye damage under in rats reported certain scattered cases of other necessarily heavy dosage indicate did effects in humans adverse and more in hu- this would be encountered observing animals. While that “the side many mans, more had of whom thousands types reported effects of all to us Mayo drug, and then taken the substantially per- date less total than one cases at- not certain their were treated,” patients including cent of the Neither is there tributable to MER/29. therapy under number more than suggest that defendant had evidence to year three, few in excess highly beneficial lost confidence “recommended letter that MER/29 Moreover, drug. and this effects patients used who can be case, goes good deal very supervision maintained close under weight given the human tend- must frequent and observation” and never at ency of conduct once to follow a course day. mg. per than It con- upon considerations when decided even by saying cluded that further studies appeared have led a would have that way requesting any were in- under and outset, a tend- different at the decision physician formation the could contribute. large ency strong peculiarly in- when money have effort vestments of both Although plaintiff many makes other very made; initial fact of the in late criticisms of defendant’s conduct subsequent importantly affects decision alleged withholding of data as to 1961 — (The Psychology animals,30 James, Brief- toxicity ones. See other in forms of judge significance. 1961 Get- In October As defendant’s scientists to this position FDA view be fol- man that that directed taken the need submit lowed; good only subordinates follow in failure of faith to be data believed significant, warrant this would not FDA insisted direction whereas complicity- New York that under with Merrell late 1961 discussion rule. and that it would all be submitted data heavy places reli ed.). Plaintiff paperback Course) (1961 17-22 er Although though argument that even tendency pushed on to ance this can be analyzed of the incidents we have recklessness, no one point of a court should finding of reck a itself warrant low would too not to set the scale careful lessness, permits an discovery utility their combination is under when of social a height only plan strong inference of recklessness review. A case significance of each item ens the against could been mounted Colum- have acts permit would consideration to Palos with bus had returned lives including those we have detailed nothing found. lost quarrel have subordinates. We Furthermore, general principle; indeed we while this defendant’s proposed recently letter quite that, would have even a have said served as warning, entitled, case, first suggested it was never “The trier is criminal bound, it would be as a the last. the evidence fact to consider Defendant’s position along whole; and, life, all as in the effect that it in law should be permitted greater generally warning send than of out its much this is letter immediately on understanding parts.” the sum the Bottone, United States subject Cir.), (2 letter change would be cert. F.2d denied, result of further U.S. S.Ct. conferences investigations. fact, de L.Ed.2d Still the burden well public been better for the all than volves see that when what court accomplished. the FDA considered, there essentials evidence is thus enough finding which the December 1 letter differed warrant requires. from plain what defendant law here think volunteered to send And thorough discovery by October 19 were tiff fails. recommendations slit-lamp examinations his able has un be industrious and counsel made during fore therapy earthed countless instances of careless very be used under ness and even of wilfulness close subordi MER/29 supervision frequent observation, nate officials and of failure to exercise proper supervision possible judg reassuring omission of the con bad cluding paragraph. by higher that, say We ment ones. cannot Granted few on the basis knew, escape of what it human endeavors without then de searching propose strong scrutiny, fendant’s failure to from blemish so warning picture reasonably pretty could is not a one. But there be found proof reckless was no properly wanton. from which a could conclude defendant’s offi suggestion Plaintiff’s final is that disregard cers manifested deliberate was taken off the market welfare; this, human apart what shows toas April 1962 not because the increas- negligence policing sub ing reports cataracts, culminating in ordinates and a somewhat stiff-necked year boy that of Mayo the six old FDA, attitude toward the is rather that Clinic, surprise inspec- but because of a they were so convinced the value plant by tion of the Merrell the FDA public both to the and to welfare monkey which revealed the fabricated company’s main finances that Taking data discussed some time back. sanguine longer pru tained view than the evidence in the sense most favorable dence warranted. plaintiff, to the utmost shown is that may the raid have accelerated the deci- Moreover, de York New by days; nothing sion a few there is might punish mands, to before as it have to warrant an inference but for to fines similar defendant with a this defendant would have continued charge, imposed on criminal a those marketing in- justi in the face of necessary quality of conduct “clearly creasing cataractogenic damages fy es evidence of must be Cleghom Cent. York v. New qualities. tablished.”

851 contending we 44, (1874-). While Cf. R., 48 R. R. 56N.Y. &H. judge’s by decision trial concluded Jebiley, 346 are N.Y.S.2d 198 v. Hedrick Co., Merrell Su Ostopowitz 1960). v. Wm. S. Supreme in City (N.Y. As the County, Court, New us, recently preme reminded Westchester Court 5879/63, to our clear, unequivocal York, fn. “by 3 proof No. of standard * * * appeal defend convincing opinion, is now under Division, Woodby Appellate Second stranger v. to the civil law.” ant 483, 285, urges, Roginsky “the S., Department, as 276, 87 S.Ct. N. 385 U.S. I. Wig- “suspend” (1966), citing sought,” 9 that we relief 17 L.Ed.2d 362 chief 1940). (3d proceedings appellate It more, ed. 2498 until Evidence decision Space another, v. Rich of a situation would be hard to think case invoking appropriate ardson-Merrell, Inc., trial for now York, County, manufacturer of conclud standard than where the Broome New are drug honestly regard to assist bound a new believed We ourselves ed. prius judge, prolonging rulings faced human life is with a nisi state respect.1 penalties by plain- although hundreds claims with these we treat dollars, running Fidelity tiffs into v. millions Co. Union Trust Insofar as many 176, Field, 169, millions more for dam- addition 85 61 S.Ct. 311 U.S. ages sustained. We have little doubt L.Ed. 109 on which duty in such a the New York case Court relies, may indicated have Appeals require judge would scru- King abnegation, of United v. Order 153, tinize evidence in far closer detail Travelers, U.S. 333 Commercial submitting punitive damages before (1948) 488, 608 92 L.Ed. 68 S.Ct. jury than it would issue com- Polygraphic Amer Co. of Bernhardt v. pensatory damages negligence 273, 204-205, 198, 76 S.Ct. ica, 350 U.S. prophecy 209-212, breach If contract. (1956) id. 199 100 L.Ed. prove wrong, should we would then opinion (concurring 273 Mr.. 76 S.Ct. obliged decide future cases Frankfurter), removed have Justice power whether we nevertheless Corbin’s this, of Professor favor impose higher proof standard of court federal that when earlier view punitive damages the award of in a fed- law, it should state must determine trial, eral Timko, cf. San Antonio v. 368 upper court slavishly even lower or follow 983, .(2 1966), F.2d n. 1& Cir. all the ought consider decisions surely we if would we do. highest state court of the data the Sev judgment Corbin, Laws of compensatory as to use. See dam- (1941). ages affirmed; judgment States, Yale L.J. is eral as to punitive damages position of this is the established reversed. No Such costs.- See, g., v. Sonnen Strubbe e. court. schein, (2 185, Cir. 188-189 299 F.2d Judge: HAYS, Circuit Corp. 1962); Merritt-Chapman & Scott Ostop- disregarding brethren, My F.2d Dist. No. v. Public Util. York court New owitz case in which a 1963); v. (2 Evans Cir. upon in- passed issues as those the same Co., 315 F.2d & Sons J. Groves S. higher here, speculate on what the volved negligence (2 1963), case Cir. 341-345 New hold. York courts later predicted resu’t in which least, very I would await At the Ap Court reached New Ostopowitz. appeal in result of Plains White peals in Pfaffenbach N.Y.S. Corp., Express N.Y.2d Rehearing On Petition for 216 N.E.2d 2d disagree way in no event we PER CURIAM: ruling that Supreme Court Justice’s Roginsky’s fifty-five page petition justify the “high culpability” moral rehearing under warrants a few additional award of position ones law, on the lead- us. based York ing Sheldon, Since, case of Walker v. 10 N.Y.2d founded. as we indicated in our 401, 404-405, opinion, 223 N.Y.S.2d at n. the district court should press plaintiffs 179 N.E.2d also not which we the other MER/29 to await the final de- cited, p. they say prefer 842. And trial if we cannot wheth- holding disagree by er or cision of not we his similar the cases New courts, Ostopowitz why that Mrs. met the burden we fail to understand our required prediction submission the issue New York law have will large jury since, out, impact previously pointed as on these actions counsel slip opinion fear. 1828 n. event not know this would not seem Roginsky what the record in trial do matter which was and is concerned. required not consider ourselves to search * objects Plaintiff remarks Indeed, peti- it out. in an answer to the damage problem multiple punitive rehearing permitted tion which we negligence in the awards for serious filed, he defendant asserts that Os- goods rendition manufacture of or the topowitz record does differ in im- services, claiming question has that this portant respects. litiga- arisen here “when MER/29 pretty Our at an end.”2 similarly unimpressed tion is well We are damage multiple punitive concern over plaintiff’s position. If Ro- alternative contend, not, sole- awards counsel as ginsky truly . rul- wished a authoritative ly about Richardson-Merrell or even law, have sued state should general all about manufacturers in suggestion 3 state court. The manufacturers, suppliers and consumers suspend federal courts should decision goods Pages of Also, 839-841. and services. by a after their has been taken time concedes, only plaintiff con- twenty day appeal requiring trial and an analysis clusion we drew from appendix of detailed examination of an consequences puni- imposing “that the printed pages hun- than 2000 damages present tive a case like the ill dreds grace exhibits comes with rather are so York Court serious when advanced counsel for the Appeals subject proof to would first time more than months after three good particularly scrutiny.” careful A appeal argued “the was decision, although after discussion that become available an adverse the Osto- opinion since our states was rendered powitz ruling reported after week accepts proposition “If one argument. plaintiff thinkWe damages consequences rightly outraged if, have n eventof can can scarcely ”—as be ‘momentousand serious’ affirmance, now defendant had denied defendant where the suggestion. Moreover, made a similar many exposed liability plaintiffs plaintiff has received what con- increasing justice requires —“then compensation sidered full for stage,1 catar- persuasion burden of of the acts, early arrested at an caused Comment, action.” taking MER/29, his if indeed Safeguards Punitive Criminal and the caused, (and p. were so the other Damages Defendant, 34 U.Chi.L.Rev. pending (cid:127)cases District Court 408, 417, (1967).3 ample New York courts afford will opportunity punishment plaintiff’s and deter- exten- We have reviewed legal prove rence if our summary views should ill- sive of our criticisms petition rehearing adds, significant now character 3. The Comment “It is action, izes him as a “blinded consumer.” in other kinds of civil courts plaintiff’s per- increased the burden of argument possible consequences We find this somewhat hard to suasion as the reconcile with the statement on the same increase.” U.Chi.L.Rev. page petition holding Woodby Immigra- that our 418 and 434. See “jeopardizes Service, some 75 other cases tion & Natuaralization 385 U.S. BoginsJcy.” 276, 285, in the same district court 87 S.Ct. 17 L.Ed.2d 362

853 forget required by per- the that even burden of the care when the evidence with by ordinary pre- petition coun- one of the suasion is but the earnestness of referring ponderance, technique to en- testi- the winner of a verdict is sel’s mony man- titled the staccato to inferences evidence and exhibits a impression fairly supports. an creates that often ner than when the evidence different rather may point final is that Counsel’s nothing persuade us to read. find We try the case been mistake summary was in 'While that our error.4 argue appeal com- on the basis that right quite we did counsel are that plicity presidents or vice- defendant’s every item of on mention which presidents must be shown warrant opinion plaintiff relied, clear- had as our award, They 842, p. n. 17. carefully 844, ly p. con- stated we had at support find acts view that cited. The sidered the items additional supervisory employees of inferior and we case was indeed a close one Soucy enough opinion in the brief had “no not decide that did Greyhound 112, Corp., 276 v. 27 A.D.2d unjustifia- proof” petition quite as his (3d 1967), Dept. case N.Y.S.2d bly says proof from rather “no. but pleadings cited decided on the which we properly conclude could which point although had not a different de- manifested defendant’s officers that to us cited and which we welfare,” disregard for human liberate very helpful ques- find on the instant thorough p. tion,6 reconsideration Acceptance 850. After and in Motors General ;5 Corp. Froelich, U.S.App.D.C. tend counsel our view v. that remains they request anticipated statement he or order 4. counsel characterize Since surprise inspection thought concerning of the withdrawal would allow 1962, p. April, plant as to be until the week Merrell decision deferred company April of all” and in- indefensible 23 because of absences “the most Europe. “laughable,” “if this as as we take officials He added that deed testimony Getman, rapidly, changes develop example. The conditions plans general manager president to be in these will have made Division, de- a witness called decision made earlier.” fact Merrell April plaintiff, made 12. We fail Division con- cision was was Friday, April 6, with- this is distinguished what cluded on see how inconsistent super- drug from we are on the of the what draw the basis said year imposition report six to the have said. of the said to boy Mayo upon the in- old at the Clinic perceive 5. are unable to the inconsisten We creasing reports of “a number cataracts cy plaintiff finds between our de which, opinion who of those re- Rey cision and the well-known ease of connection, them, had no viewed Pegler, F.Supp. (S.D.N.Y. nolds drug.” possible with the connection Get- (2 Cir.), 1954), aff’d, 223 F.2d 429 cert. withdrawing man before stated denied, 76 S.Ct. U.S. obliged consult of- Apart possible from L.Ed. 754 company parent because of ficials of the (cid:127) corpo- actions, distinctions as libel contrary importance MER/29, knew an earlier rate defendants there unjustified position Division taken the Merrell by Pegler had left attack November, marketing previous and the offending over of the full decision release foreign outside the countries fully although column to subordinates end, jurisdiction. Division’s To that danger of the further arti- aware Monday, April 9, he addressed a memoran- likely Reynolds libelous. cle on company, parent dum evidently officials stipulated Moreover, defendants telephoning to after some find a corporations column submitted meeting setting date, suitable “duly through their au- distributed April 26 “in of the travel schedules” view (Brief Appellee at thorized officers” His memo- of the individuals concerned. 53). alarming reported news from randum Mayo, claiming' report Chicago he “is not from a concedes an adverse Plaintiff theory Soucy brings inquiry ophthalmologist, new into and an Canada; to him at it al- which was unavailable members of Parliament trial,” personnel the first and refers to FDA were then time of so stated p. plant getting n. we cited data cases at the Merrell (D.C.Cir. 1959), which a case 273 F.2d although we did not discuss cited to us counsel, agreement con- view rehearing, petition “that

ceded in shown,” participation must be officer us

under Plaintiff asks law. grant judge him direct district new trial theory present or, alterna-

he can this judge

tively, so. that we allow On direction.

We shall make hand, nothing judgment granting prevent judge extraordinary relief if in exer- think

cise of a sound discretion he should

it to be warranted. petition rehearing is denied. Judge

HAYS, (dissenting): Circuit

I dissent. HABER, Moen,

Edward A. Robert H. Ron Tamillo, Winning ald P. John Sisson, Appellants, Robert D. CORPORATION,

The AMERICANA corporation, Appellee.

Nos. 20711-20714. Appeals

United States Court of

Ninth Circuit.

May 15, 1967.

Case Details

Case Name: Sidney Roginsky v. Richardson-Merrell, Inc.

Court Name: Court of Appeals for the Second Circuit

Date Published: May 8, 1967

Citation: 378 F.2d 832

Docket Number: 30629_1

Court Abbreviation: 2d Cir.