UNITED STATES of America, Plaintiff-Appellee, v. Harold E. SMITH, Defendant-Appellant.
No. 76-3327.
United States Court of Appeals, Ninth Circuit.
June 8, 1977.
249
By the omission of this side effect from their answers to Interrogatory No. 8, defendants have failed to demonstrate the absence of any genuine issue of material fact. Rather an issue remains as to when they learned of enamel hypoplasia as a possible adverse side effect to tetracycline usage. Without this information, this court is unable to conclude that defendants met their burden of providing adequate warnings based on information which they knew or should have known.
If on remand defendants make another summary judgment motion and make a more complete disclosure of all known side effects, the burden will shift to plaintiff to come forth with specific facts showing, through the use of medical reports or other literature, that defendants knew or should have known of other dangerous side effects which they did not timely reveal in their warnings. If plaintiff fails to demonstrate the presence of this issue of fact, it will be proper for the trial judge to decide the legal question of the adequacy of the warnings and proceed to final judgment.
IV.
PFIZER
Pfizer makes the additional argument that it should be dismissed from the case because its product, Terramycin, was administered only once during Kristina‘s teeth-forming years. Even though there is no evidence that the one prescription caused plaintiff‘s dental condition, we note that the segregation of fault is a jury question.
V.
PROXIMATE CAUSE
Appellees also argue that even if their warnings were inadequate they are not liable because their hypothetical failure to warn was not a proximate cause of Kristina‘s condition. They cite Douglas v. Bussabarger, 73 Wash. 2d 476, 478, 438 P.2d 829, 831 (1968), as support. There the physician testified that he relied on his own knowledge of anesthetics in making his judgmental decision and did not read the labeling on the container. In our case, although Dr. Corlett could not recall which PDR entry or label he read, he indicated that he had read and relied on one of them. In light of the similarity between the three companies’ warnings we do not believe that his failure to identify the one specific entry he read should break the chain of causation.
VI.
CONCLUSION
Because all reasonable doubts touching the existence of a genuine issue as to a material fact must be resolved against the moving party, 6 J. Moore‘s Federal Practice ¶ 56.23, the judgment is reversed and the case remanded for further proceedings consistent with this opinion.
Marc D. Blackman, Asst. U. S. Atty., Portland, Or., argued for plaintiff-appellee.
Before MERRILL and SNEED, Circuit Judges, and BLUMENFELD,* District Judge.
SNEED, Circuit Judge:
Appellant Harold E. Smith was found guilty of criminal contempt in violation of
Appellant, James Walter Scott and Gregory Scott were spectators at the trial of William Gardiner for failure to file income tax returns and for wilfully supplying false and fraudulent information to his employer on a withholding exemption certificate. They shared Gardiner‘s view that the income tax laws are unconstitutional. Prior to the noon recess, the court admonished the jury not to discuss the case among themselves or with others. Appellant was present in court at this time and heard this admonition.
During the noon recess, the three crossed the lobby of the courthouse and, in due course, exited into the street; as they walked, they actively discussed the Gardiner trial. Appellant was aware of the presence in the lobby of jurors in the Gardiner case. At the exit, they joined a group of people which included a juror named Paul Gartner. At this point, appellant commented to his companions, in a voice sufficiently loud to be heard by those in the immediate vicinity, something to the effect that “I hope this jury doesn‘t go along with those communistic tax laws.” Gartner heard this remark and the incident was brought to the attention of the court. A motion for a mistrial was denied.
On the basis of these findings, the trial court concluded that appellant was guilty of criminal contempt. We disagree. The type of intent necessary to support prosecution under
We believe our holding is consistent with an early expression of this court on this subject appearing in Kelly v. United States, 250 F. 947 (9th Cir. 1918), cert. denied, 248 U.S. 585, 39 S.Ct. 182, 63 L.Ed. 433 (1919). We said:
In order that one may be held for contempt for communications with jurors, on the ground of the harmful tendency thereof, it is not necessary to prove that the communications had or the acts done were accompanied with a wrongful intent. It is sufficient if such acts and communications were knowingly and willfully done and had, and had the tendency to influence improperly the action of the jury.
We read this as requiring that the communication be “knowingly and willfully had . . .” A communication made with “wilful and wanton disregard of whether the jurors might hear it,” in the trial court‘s view of the circumstances of this case, is distinguishable from one made knowingly and intentionally. We accept the trial court‘s view and conclude that the communication here made with “wilful and wanton disregard of whether the jurors might hear it” does not meet the requirements of Kelly.
We recognize that Kelly, as well as Hawkins v. United States, supra, and Higgins v. United States, 81 U.S.App.D.C. 372, 160 F.2d 223 (1946), cert. denied, 331 U.S. 840, 67 S.Ct. 1511, 91 L.Ed. 1851 (1947), were concerned with instances in which admittedly the defendant knowingly had conversations with a juror.1 The issue in each, to employ the language of Kelly once more, was whether the conversations “had the tendency to influence improperly the actions of the jury.” Such a tendency was found to exist in this case by the trial court. However, as we have indicated, we read Kelly, when applied to the facts of this case, also to require a communication be made knowingly and intentionally to the juror. A careless loud mouth expressing his opinion in the vicinity of a juror is unmannered but not, without more, a criminal.
Our holding is not intended to suggest that we reject, or have reservations about,
Our disposition of the appellant‘s first argument makes it unnecessary to discuss his other contentions.
REVERSED.
BLUMENFELD, District Judge, concurring:
Appellant has been convicted of criminal contempt pursuant to
In defining the proscribed conduct, the court‘s opinion relies on Kelly v. United States, 250 F. 947 (9th Cir. 1918), cert. denied, 248 U.S. 585, 39 S.Ct. 182, 63 L.Ed. 433 (1919), in which two defense attorneys conversed with and bought drinks for two jurors during the course of the trial of their clients. However, the Kelly court was not dealing with pure speech as is involved in this case; as such, it did not consider the First Amendment implications that most be coped with here.2
At one time, the Supreme Court did find that speech having a “bad tendency” was not protected by the First Amendment, see,
In a series of cases beginning with Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941), continuing with Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946) and Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947) and culminating in Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962), the Supreme Court has held that there must be a “clear and present danger” to the administration of justice before an out-of-court publisher of a statement may be punished for contempt. “Clear and present danger” has been described in the following way: “The fires which [the expression] kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.” Wood v. Georgia, 370 U.S. at 385, 82 S.Ct. at 1370, quoting, Craig v. Harney, 331 U.S. at 376, 67 S.Ct. 1249.
Of course, unlike any of the above cited cases, we are concerned here with communications to petit jurors, rather than to a judge or to a grand jury. I recognize that outside communications to a juror involve a greater vulnerability to the impartial administration of justice. The evil which may be engendered is that the jury will be so influenced as to be unable to render an impartial verdict after a complete trial solely on the evidence presented and on the law in conformity with the instructions of the court.3 However, this added risk of danger has no bearing on the proper First Amendment standard, but only on the proper application of that standard to the instant facts. Thus, while a clear and present danger to the administration of justice may be more easily found in a juror contact case than in other situations, the applicable First Amendment standard remains constant. Cf. Eaton v. City of Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974); In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972); see also, Nebraska Press Ass‘n. v. Stuart, 427 U.S. 539, 562, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).4
We deal here with a public trial which had some political overtones. The allegedly contemptuous conduct was comprised solely of speech expressing a view about the desirability of an income tax. The First Amendment requires speech constituting a clear and present danger to the administration of justice before a contempt sanction can be imposed. Therefore, in my opinion, a finding of a mere “tendency” to improperly influence jurors is not adequate to support a contempt conviction.