Upjohn Co. v. Freeman

COMPANY, Appellant, The UPJOHN FREEMAN, Freeman,

William R. Martha

Individually and as Next Friend and Perry Freeman,

Guardian of Sean a Mi Child, Freeman,

nor Suzanne E. as Next

Friend and Guardian of Leah Suzanne Freeman,

Freeman and William Lance Children,

Minor and Lori Yvonne Free

man, Appellees.

No. 05-93-00468-CV. Appeals

Court of

Dallas.

Aug.

Rehearing Denied Oct.

Stеphen E. Scheve and Robert H. McCul- ly, City, MO, Josephson, Kansas Richard L. Houston, Lynn Earl B. Austin and S. Swit- zer, Dallas, appellant. for Coyd Kaplan, Randal Johnson and Jeff Watler, Dallas, Lowy, Martin Paul C. for appellees. BAKER,

Before and THOMAS BURNETT, JJ.

OPINION BURNETT, Justice. family R. Freeman

William and his sued Upjohn Company The for and products liability injuries resulting for from Halcion, prescription Freeman’s use of sleeping pill.1 alleged taking Freeman psychotic, paranoid, Halcion caused him to be delusional; memory resulted in and and loss suicides; attempted him to kill and caused sought Donnie Hazelwood. dam- injuries, ages Family for these and the sued support. for loss of consortium and loss of evidence, At the close the trial court take-nothing instructed a verdict in favor Upjohn wages on Freeman’s claims for lost earning capacity. jury diminished Upjohn grossly negligent dispensing found marketing Halcion with a defect. The Freeman, Family, collectively, 1. We will refer to William R. individu- refer to Freeman as ally, as We will Freeman. refer to Freeman's the Freemans. Family. necessary, When we will Family Upjohn awarded zero to Freeman and maintains that did not estab- exemplary damages awarded actual and lish that Freeman’s cause of action accrued Family. awarded years more than two before suit was filed. Martha, Sean, Leah, loss consortium to Family continuing-tort contends and Lori Freeman. The awarded loss- applies resulting rule from the use Martha, Sean, Leah, of-support damages to prescription medication. The fur- Lance. With award legal ther asserts that the disabili- children’s support, for loss of the trial court entered ty minority precludes applying limitations take-nothing judgment notwithstanding the to their claims. Upjohn. verdict in favor of recognizes Texas law a cause of Upjohn appeals verdict, asserting spousal parental action for the loss of general points six of error. contends (i) Reagan Vaughn, consortium. v. 804 S.W.2d the statute of limitations bars the 463, (Tex.1990), (ii) claims; reh’g, Family’s 466 on 804 exempla- thе actual and clarified Miller, (1991); ry Whittlesey S.W.2d at 467 damage v. awards are not sustainable as a (iii) (Tex.1978). law; 665, However, of 572 667 support- matter and S.W.2d evidence extinguished by such a cause of action is findings legally causation and fac- tually expiration of the statute of Upjohn insufficient. limitations on the further contends (i) injured family personal-injury that the trial court member’s submitting erred (ii) 466; charge jury, Reagan, claim. See 804 at admitting certain S.W.2d tes- Duval, (Tex. (iii) 351, timony evidence, and exhibits into Work 809 S.W.2d 354 and writ). 1991, calculating damage App. [14th Dist.] no award. —Houston parties agree applicable The that the statute Family appeals The judg- the trial court’s of limitations for the member a ment, asserting cross-points two of error. personal-injury ease based on and Family contends that the trial court products liability years. strict is two (i) entering judgment erred in a n.o.v. re- 16.003(a) Tex.Civ.PRAc. Ann. <&Rem.Code garding support award for loss of (Vernon 1986). Therefore, Family must (ii) applying settlement credits because brought have for suit loss of consortium not settling of defendants. years later than after two the date that Family We conclude that pleaded suffi- Freeman’s cause of action accrued. put cient facts to the continuing-tort rule in issue; therefore, Upjohn conclusively did not Because the statute of limitations is an establish that Freeman’s cause of action ac- defense, Upjohn affirmative bore the initial crued statutory period. outside the pleading proving plea burden of its of found that Freeman did not suffer an limitations. Tex.R.Civ.P. Woods v. Wil Upjohn’s negligence because of product. Mercer, Inc., 515, M. liam 769 S.W.2d 517 Consequently, jury’s finding precludes (Tex.1988); Corp. Metal Structures v. Plains Family’s (Tex.Civ. cause of action Textiles, Inc., for loss of con- 93, 470 99 S.W.2d Finally, sortium as a matter of n.r.e.). law. we hold 1971, App. Up writ refd —Amarillo recovery no loss-of-support there is for john pleaded limitations. At the close of personal-injury in a claim as a mat- evidence, Upjohn moved for a directed ver ter of law. dict, We reverse the trial court’s asserting a limitations defense. The judgment and render a take-nothing judg- pre trial court denied motion. To Upjohn. ment for appeal, Upjohn vail on demonstrate must conclusively proves, that the record evidence STATUTE OF LIMITATIONS law, Family’s as a matter of causes one, point Upjohn In years error contends of action than accrued more two before that the statute of bars limitations the Fami- suit was filed. Sterner v. Marathon Oil ly’s 686, Upjohn According causes of action. asserts 767 S.W.2d 690 ly, did not file suit within the statu- must establish the date on which tory period jury findings and did not secure Freeman’s cause action accrued and the Intermedies, discovery sufficient to invoke the rule. The date on which suit was filed. 542 842, Grady, concept injury originat-

Inc. v. 683 845 of continuous S.W.2d trespass-to-land App. [1st writ ref ed in and nuisance cases Dist.] d —Houston n.r.e.). expanded false-imprison- has been include ment cases. See Ranch & Creswell Cattle Generally, a cause of aсtion accrues Scoggins, Tex.Civ.App. Co. S.W. wrongful injury, when the act effects re (1897); Adler, gardless plaintiff of when the learns of the Adler, period In this Court the entire viewed Weaver, injury. Robinson v. continuing one for of detention as tort which (Tex.1977). If the act itself constitutes an single cause of accrues when the action plaintiffs legally protected invasion Adler, imprisonment ceases. 594 S.W.2d at interest, right or the cause of action then day imprison- 154. We reasoned that each accrues when the But act occurred. may separate be to create a ment understood legal transgression, act was not a then the Therefore, action. avoid cause of multi- when claim arises an actual results. suits, plicity cause of action for false Crosland, Atkins v. imprisonment complete does not (Tex.1967); see 50 Limitation TEX.JuR.3d Adler, until accrue the detention ends. § 58 Actions Accordingly, at 155. Here, Upjohn’s sale of Halcion was a may single bring wait and suit legal lawful act because it did not constitute Adler, period imprisonment. whole is, an injury, injury giving that rise to a 156; at see Limitations S.W.2d 54 C.J.S. of cause of action due an invasion of to some Actions 177 Akins, right Freeman. 417 S.W.2d at See Therefore, case, wrongful present In the personal-injury resulting in negligent claim from of Halcion conduct is the sale of Halcion a his use arose wrongful only damages. Upjohn’s he defective condition. con when sustained See At kins, Cherry 417 at duct became when Freeman used S.W.2d see also v. actionable Chustz, 742, (Tex.App. injury. Halcion in a manner that caused him 715 S.W.2d 745 —Dal writ) (unaware 1986, (claims long no on As as Freeman conse las based strict Halcion, liability injury). Upjohn’s products quences) using continued arise on date respect continued to Freeman. conduct with Typically, period the limitations be However, not a continuous tort involves or, gins run as to when the claim accrues in conduct, continuing wrongful continuing but case, damages this when are sustained. Adler, injury 594 S.W.2d at as well. See Inc., Murray Agency, v. San 800 Jacinto 155-57; Twyman Twyman, 790 S.W.2d 826, (Tex.1990); S.W.2d 829 see Parker v. 819, 1990), (Tex.App. rev’d on 821 —Austin Yen, 359, (Tex.App. 823 S.W.2d 365 —Dallas grounds, 855 other S.W.2d writ). 1991, However, exception no to case, wrongful continuing-tort con In a continuing this rule is found with torts. See injury to continues effect additional to duct 153, Beverly Hosp., Adler Hills 594 S.W.2d stops. plaintiff until conduct Ar writ). 1980, (Tex.Civ.App. no A —Dallas (Tex. Hancock, 627, 629 quette v. continuing tort does cause of action a not n.r.e.); Antonio writ refd App.—San act until the tortious ceas accrue defendant’s Adler, at 155. Realty Lloyd’s Tectonic v. CNA es. Inv. Co. Ins. Tex. S.W.2d a con Upjohn’s If conduct caused denied). App. writ —Dallas tinuing injury that not end until Freeman did taking drug, continuing- then the allege stopped their The Freemans may use of an injury apply. tort rule Continued ongoing claims are based on the may be a con injury-producing medication due to use of Hal- Freeman his continued Perna, Gatling v. tinuing the limita tort. See urge cion. The Freemans writ begin to run until Free S.W.2d period tions did —Dallas denied). long contin As conduct stopped taking drug becausе he man Freeman, injury effecting each “prisoner” of the side-effects ued remained separate may create a be understood to Halcion. action; therefore, 13, 1987, predictable cause of April Freeman’s cause behavior. On damages complete of action for taking mg was not after he had been the 1.0 dose wrongful month, not accrue until approximately did conduct of Halcion for one Consequently, may bring proximate ended. and as a cause of the effects of Halcion, single period suit for the of time he sustained W.R. Freeman killed his best Adler, shooting from his use of Halcion. friend him the head. W.R. 594 S.W.2d at 156. fully Freeman did not understand nor re- surrounding killing. call the events hand, On other Freeman’s use Thus, time each he was asked about the of Halcion injury regard caused one distinct killing description his of the events dif- use, continuing-tort less of his continued Moreover, every explanation fered. inapplicable. Upjohn’s rule is sale of a defec clearly events conflicted with the actual product tive is not actionable unless it causes killing_ scene of the For [W.R. Free- Atkins, plaintiff. to a 417 S.W.2d at to make four or man] five different state- 153; Cherry, 715 at 745. Once Free ments, and each of those statements im- product (although man’s use of the still de possible light scene, of the crime fective) him, longer no results inexplicable had Freeman not been delu- Freeman’s claim for accrues from psychotic. sional and Tectonic, point. Cf. petition alleges further that Halcion’s With resulting from gradually, effect on Freeman arose over sev- medication, prescription may there be either months, eral and created a condition of un- continuing injury about which the petition sound mind. The states that Free- complains single injury or a despite contin- loss, memory depression, man suffered head- drug. Therefore, ued use the continu- aches, paranoia, drug-induced schizophrenia, present nature of the tort is dеtermined psychotic episodes. petition asserts eomplained-of injury. If Freeman that Freeman’s “mental state was the result alleged that his use of Halcion caused a Halcion, taking which he was still in the .5 injury continual stopped until he taking the mg right up through dose his trial.” The drug, the required Freemans should not be petition also states that Freeman twice at- bring suit until that conduct ends and tempted taking suicide while Halcion. The Freeman’s cause of action accrues. See petition alleges further that Halcion was re- Adler, 594 S.W.2d at 156. sponsible condition, for his mental and such Upjohn responds that, until appeal, this condition did not until he cease was “taken always Freemans have argued that Hal- drug upon off the his final commitment to the specific, cion injuries: caused two identifiable Department Texas of Corrections.” Freeman’s murder of Donnie Hazelwood Upjohn specially except did not his immediate incarceration for that crime. petition. the Freemans’ When there are no reply The Freemans that Freeman unknow- special exceptions, petition will be con ingly continuing injury suffered a from his liberally pleader. strued in favor of the extended use of Halcion. We examine the Allen, Roark v. petition to determine the exact nature of the 1982). Every supplied fact will be that can injury subject that is the present of the reasonably specifi ‍‌​‌​​‌​​‌​‌​​​​​​‌‌‌​​​‌‌​​‌​‌​‌​​‌‌‌​​​​​​​‌‌​​‍ be inferred from what is lawsuit. Roark, cally stated. at S.W.2d 809. petition alleges: The Freemans’ petition alleges that Freeman’s use of Hal- continually William R. Freeman’s doctors cion caused mental his condition that result prescribed loss, memory psychosis, [Halcion] for W.R. Freeman for ed in depression, years.... headaches, murder, over two and one half attempts, While suicide and dif Halcion, under the drug ficulty influence of the in understanding the events surround any ing shooting. petition without awareness that Halcion alludes to the causing problems, severity was dosage W.R. Freeman effects of and time on the loss, experienced memory psychotic epi- petition Freeman’s mental condition. The sodes, paranoia, daily and other bizarre and un- concludes that Freeman’s use of Hal- days

cion caused his debilitated mental state. The several before the murder he knew sup Freemans adduced at trial to evidence Altman was addicted Halcion. testified port alleged Freeman’s mental condition. stop drinking that when he told Freeman to drinking problem, he had a special peti- exception Without a causing responded that alcohol not his was inju- alleged tion’s factual recitation to Hal- problems but that he was addicted ries, hold, this Court as a matter of cannot Testimony cion. that Freeman knew of an law, petition alleges specific, two conclusively to Halcion not addiction does injuries occurring identifiable outside the Halcion prove that he understood that was statutory period that the basis or constitute Moreover, affecting his mental condition. subject present the con- lawsuit. On petition alleges, the Freemans’ and the evi trary, petition alleges that Freeman con- supports, dence adduced trial Freeman’s tinued to use Halcion its effect on unaware of ignorance of him.2 Halcion’s effect on Con him and that his use of Halcion resulted conclusively sequently, Upjohn litany tragic consequences. The factual did not estab lish, law, allegations continuing injury assert a result- a matter of that Freeman as had ing from the Halcion. continued use of discovered nature of his its statutory period. cause outside petition of the al- states the nature give Up- leged sufficient detail to Upjohn did demonstrate that rec- john fair notice of nature of the claimed law, conclusively proves, a matter of ord specially ex- tort. Because did not accrued, Freeman’s cause of action cept pleading, Upjohn Freemans’ commenced, period years the limitations two any complaint sufficiency. its waived about brought before the Freemans suit. See plead- See Tex.R.Civ.P. The Freemans’ Adler, 594 S.W.2d at see also Dick Poe continuing of a our satisfies liberal Motors, 739, 744- Dickey, Inc. v. pleading. Accordingly, rule of we consider denied); writ Paso —El continuing-tort appeal. rule on Because Intermedies, 688 at 845. Conse- pleaded to.put facts the Freemans sufficient quently, denying the trial not err in court did issue, continuing-tort the Free- rule Upjohn’s motion for verdict on the a directed show, petition affirmatively does not mans’ point of basis of limitations.3 overrule We face, on its cause of action error one. years more than suit was accrued two before filed. AND EXEMPLARY ACTUAL DAMAGES Next, Upjohn Free contends that two, point Upjohn In of error contends of Halcion

man’s awareness the effects of exempla- that the actual and awards of precludes of application the murder before ry damages Family to the are not sustainable continuing-tort If Freeman had the rule. Upjohn Specifically, of as matter law. cause, his the ratio discovered and its recovery Family’s for loss of asserts that continuing-tort for the rule would no nale cannot consortium stand because longer apply, and com the statute would injury. Up- that Freeman no found suffered point. mence to run at that See Atha argues of john further an award exem- that Polsky, n. 10 n.r.e.); damages absent actual plary cannot stand Tecton App. writ ref d —Austin ic, Perdue, Family damages. The contends at The Jim M. equates damages” for erroneously “zero Malpractice: Law Texas Medical Limita tions, Family “no ex- injury.” At with Freeman Hous.L.Rev. trial, damages an is not plains Phil Altman that Freeman award of zero testified that, year about a If the defendant does not establish limitations 2. Martha testified law, conviction, seek a matter of defendant can they that Halcion after the learned Intermedies, findings on the defense. affirmative responsible been for Freeman’s men- could have S.W,2d Up- denied at 845. The trial court program a television tal condition request john's a statute-of-limitations submit the side effects about of Halcion. subject jury, is the to the which point appellant’s third of error. automatically plaintiff may damages linked to the issue of whether recover present. injuries an was con- for those caused the event jury may properly cludes that a find that an Morgan, made the basis of the suit. compensate Therefore, occurred but still refuse to if 5.W.2d at 732. has not injured plaintiff. been asked consider causal nexus be- upon plaintiffs tween the event sued and the

Applicable Law submission, injuries in a broad-form then this damages ques- in the issue will be subsumed case, In personal-injury plain Consequently, “proof’ tion.5 will typically alleges tiff con defendant’s parts: consist of two duct caused event and that this event plaintiff caused the tо suffer 1) upon Proof that the event sued caused Thus, compensation paid. which should be injuries; plaintiffs plaintiff at trial the must establish two causal 2) Evidence about the amount of recovery: nexuses to be entitled to plaintiff may recover. 1) A causal nexus between the defendant’s Morgan, plaintiff conduct upon; and the event sued 675 S.W.2d at 732. The prove 2) compe- must both of these elements A causal nexus between the event sued Morgan, tent evidence. upon plaintiffs injury. and the Morgan Compugraphic Corp., 675 S.W.2d Application Law to Facts 729, 731 The causal nexus be- tween the defendant’s conduct and the event In petition, their the Fi’eemans upon liability portion sued relates to the of a allege negligence products liability. both plaintiffs Liability cause of action. means action, negligence plaintiff In a shows legal responsibility upon for the event which liability by proving neg defendant’s plaintiff Morgan, bases suit. 675 S.W.2d ligent proximate conduct was a causе of the at 732. upon. products-liability event In a sued ac Whether upon the event sued marketing alleged, tion in which a defect is any injury caused entirely to the liability by proving prod is established that a separate from liability legal responsi placed uct was in the stream of commerce bility issue. The causal nexus between the containing inadequate warnings or directions plaintiffs injuries event sued and the producing which were a cause the event typically damages portion referable to the of made the basis of suit.6 plaintiffs Morgan, cause of action. action, With (citing S.W.2d at 732 3 State Bar Of charged jury, trial court and the Charges PJC 80.03 Texas Pattern JURY answered: (1982)). However, with broad-form submis sions, the trial court can include the percentage, any, negli- issue of 1. What if a causal inju gence, any, nexus between occurrence you proximately find ry general jury question.4 in one you in question See caused the occurrence do Tex. Texas, find should be attributed to еach of the R.Civ.P. Bar State Of Texas Jury Charges (1991). parties, any? PJC 80.03 if Pattern may Gardner, accomplished by using Corp. 4. This be the term 6. See Keene denied); injury. terms or occurrence or For exam- writ Lucas —Dallas ple, may Inc., charge juiy: Indus., the trial court the “Did the v. Texas negligence, any, proximately 1985) if of the Defendant (op. reh'g); on mot. for 59 TEX.JuR.3dProd question? cause the in An- occurrence Liability products ucts In a strict swer Yes or No." case, liability the nexus the between defendant’s question conduct and the occurrence in is not necessarily required. Duncan v. Cessna liability 5. If the issue asks whether the de- Aircraft Howev Corp., 665 S.W.2d question, fendant caused the occurrence in then er, plaintiff jury response the not relieved of burden to an affirmative his to that issue indi- prove product inju caused his cates that the defendant caused the occurrence defective ry- question nothing in and more. by stating percentage, any, Upjohn Company produc- if that was a

Answer a opposite parties question? in each of the listed below. cause the occurrence percent The total should or zero. be or “No.” Answer “Yes”

ANSWER Yes. ANSWER: Therefore, jury the trial court asked the to a) Plaintiff William R. Free- upon Upjohn’s rule the causal nexus between man 50% b) Upjohn marketing the occurrence in Defendants The of Halcion and Company 20% question ingestion of Halcion. —Freeman’s Landy Dr. Aaron 30% Morgan, jury 675 S.W.2d at 732. The See TOTAL 100% Upjohris marketing of Halcion answered Therefore, jury the trial court asked the to producing was a cause of Freeman’s decision upon Upjohris rule the causal nexus between drug to take the in the manner that he did. question. and in conduct the occurrence Therefore, jury Upjohn found liable for However, the trial court did not instruct the product. Freeman’s use of its defective ques- meaning on the of occurrence in properly The trial court submitted the is- occurrence in defined tion. The proximate producing and cause. sues on Here, legal basis of lawsuit. Jury Of Bae State Texas PatteRN event made the basis of the suit was Free- Charges (1991); PJC 4.01B 3 State Of Bar ingestion Morgan, man’s of Halcion.7 See Charges Jury Texas, Texas Pattern PJC 675 S.W.2d at 732. The answered that (1991). By using 71.01 the term occurrence fifty percent responsible Freeman was for question, proximate producing in and Halcion; taking Upjohn twenty percent re- liability cause issues ask about for sponsible; Landy thirty percent Dr. re- and suit, ingestion of the basis of the Freeman’s sponsible. Consequently, found that Halcion. may Upjohn be held hable its posi- By answering questions one and two respect ingestion to of Hal- with Freeman’s Upjohn negligent- tively, found eion. marketing ly dispensed a defect Halcion with products-liability ac- With to conduct, a and that as result of this tion, following gave trial court he did. took Halcion manner jury responded: charge, and the cause, proximate Upjohn’s negligence was a a marketing Upjohris marketing a in the of Halcion was Was there defect cause, of use of the possession producing Halcion at the time it left the ignore case an automobile would have this Court manner. If this involved dissent meaning ques- accident, plain suggest of the term “occurrence "occur-' one would not (the bring event that enables a tion” suit ‍‌​‌​​‌​​‌​‌​​​​​​‌‌‌​​​‌‌​​‌​‌​‌​​‌‌‌​​​​​​​‌‌​​‍question" really plaintiff’s meant the rence in defendant) against and substitute one of requested resulting injuries. The Freemans' alleged myriad the petition. Typically, plaintiff in the Freemans' issue, though not submitted or affirma- that enables a the event court, tively trial stated: ruled bring against particular suit defen- cash, money, paid if now in would “What sum of dant is an accident or collision from which fairly reasonably compensate William Free- case, however, does not involve an occurs. This injuries, any, that resulted man for his from continuing plain- accident. It involves a tort: question?" The Freemans' re- occurrence prolonged injury-producing medi- tiff’s use of charge jury: quested "Dо not in- instructed cation. resulting any any clude amount for condition not sought pleadings proof at trial Freeman.” Halcion William from the use (1) adequately establish that failed parties, both when sub- (i) The record shows that dangers pro- warn consumers about the court, (ii) (2) jury charge mitting proposed longed dosage their use and failure, excessive due question ex- to this Freeman took Halcion in an occurrence in saw a difference between time, submitted, And, cessive amount for an extended amount of thereby causing fore, injury. with- the trial court and injuries. him a host of There- charge objection, the first neces- out a that asked legal Upjohn’s negli- basis of the suit is sary conduct and occur- causal nexus between condition, gent Halcion in a defective sale of then, (the liability question) and asked the rence when used which became actionable jury between about the nexus occurrence injury. Halcion in a manner that caused him (the damages question). injury аssertion, Contrary to the dissent’s this Court ordinary jury charge read in the most has short, question: “Did the tak drug. jury liability response In decided the tive to the However, any injury?” ing in favor of nei- of Halcion cause Freeman issues Freeman. questions Up- ther of these asks whether Family jury’s that the “zero” The contends john’s actions were the cause of Freeman’s only implicates part of the answer second injuries. plaintiffs regarding burden the amount of damages should recover. The liability questions only The refer Family explains jury simply that the chose question taking occurrence of Hal- —the compensate injuries. not to Freeman for his any alleged injury cion—and do not refer to liability questions If the had used the terms Therefore, resulting from that event. injury injury, or occurrence or then the still jury Freemans had to ask the whether damages answer of zero would mean “taking any of Halcion” caused Freeman jury no found causation between injury. Morgan, See 675 S.W.2d at 732. ingestion alleged of Halcion and Freeman’s asked, jury The trial respond- court and the injuries. The answer zero could ed: mean, argued, jury chose not to you any part If have answered of Issue any money award Freeman amount of for his zero, any No. 1 with amount other than by damages proximately using caused Hal- you if have answered to Issue No. ‘Tes” cion. 3; otherwise, please answer Issue No. do agree We that with to a loss-of- not answer it. claim, Family only consortium need se- money, any, paid 3. What sum of if if now jury findings cure of the existence of dam- you fairly cash do find would rea- ages by Upjohn’s negligence caused or its sonably compensate Plaintiff William R. product. defective The was not re- damages proximately Freeman for the quired to establish a certain amount of dam- by caused the actions of the Defendant? However, ages owed to Freeman. the Fami- cents, any, Answer in dollars and if as to ly did a not establish causal nexus between each following: Upjohn’s product conduct or and the exis- ANSWER Morgan, tence of an to Freeman. See at 732. a) enjoyment Loss of of life brief, post-submission In a letter the Fami- b) Emotional distress in the ly asserts: past c) Emotional distress in the charge by submitted the trial court future if there was a “defect in the market- asked subpart answered “zero” each producing of Halcion ... awas damages question. Question of this nos. 1 in question.” cause of the occurrence “yes”. do not establish that actions answered The official com- Consequently, mentary Jury caused to Freeman. to section 4.01 of the Pattern no. 3 is the Charges issue that can be indicates that committee has asking read as whether there is continued to use “occurrence” rather than link upon “injury”, although “injury” may causal between the event sued be used in products liability to Freeman.8 cases. did not Bar State Of Jury Charges object PJC to the use of “occurrence” rather Pattern Texas 71.01; Therefore, Thus, “injury” jury question. 80.02B than in this implicates part finding marketing answer to this issuе that this defect was “proof’ damages: one of producing whether the cause of the “occurrence plaintiffs inju question” finding event that it sued caused the is tantamount to Morgan, “injury” Ac producing ries. See 675 S.W.2d at 732. was a cause Wil- cordingly, nega the zero award constitutes á liam Freeman. charge encompasses every

8. The asked the what loss or diminution occa- amount money, any, compensate Woodyard would of another. Freeman for sioned fault Hunt, damages proximately Upjohn's his caused ac- —Houston writ). Damages ordinary meaning [1st Dist.] tions. has an no Next, jury finding marketing Family argues

A that a the the clearly ingestion of found that the Halcion producing is the occur defect cause of the deranged caused mental condition in is not to a rence tantamount because the awarded Freeman’s wife marketing finding pro that the defect is the damages loss of children for consortium. ducing alleged injury. cause of the The use Family The first suggests part of of in injury produets- is recommended strict plaintiffs prove injury the burden to to Free- plaintiff liability cases where a re is not jury’s positive man can in the an- be found quired to first establish nexus between the to the swer the issue for wife defendant’s conduct and the occurrence in However, question children.10 no. 4 asks question. See Duncan v. Cessna Aircraft only if the wife and children dam- suffered (Tex.1984); Corp., ages Upjohn’s of a result actions. The Op Jury Texas, State Bae Texas Pattern injury family must find an to the mem- ¿ven Charges (1991). However, PJC 71.01 determining ber the consortium dam- before cases, produets-liability in strict it remains age Reagan, issue. 467-68. plaintiffs to burden establish a causal Question no. 4 does not ask the threshold product between the defective and the nexus serious, issue of whether Freeman suffered a alleged injury.9 permanent, disabling injury as a result Upjohn’s of prod- or its defective may plaintiff A recover 467; Whittlesey, uct. Reagan, 804 S.W.2d at injury product. caused See defective the family 572 S.W.2d at 667. Whether Inc., Affiliates, McKisson Sales аny members loss of consortium is suffered (Tex.1967); 792-93 Restate- plaintiffs immaterial until establish (1965). (Second) 402A ment of Torts product or actions caused defendant’s Therefore, by using the in term family impaired member. submission, plaintiff asking broad-form is Family family The that a concedes mem- appropriate to consider the causa- consortium is ber’s claim for loss of deriva- Injury ques- tion issue. and occurrence in family impaired tive of tort member’s synonymous, interchangeable tion are not Family action. that a concedes claimant meaning regard- the same terms have liability must establish on defendant tort- submitting less of their use an issue to resulting feasor harm the im- and show jury. of There is no cause action for strict paired family member and relation- damage liability tort until there actual ship recovery. to justify a Reed Tool v.Co. plaintiff resulting from the defective Copelin, 610 738-39 product. Cherry, 715 745. S.W.2d at Family Consequently, however, relieved cannot be Family argues, it of a jury question their burden to submit on ludicrous that Freeman suggest was injured appropriate in a strict of causation issue as a result conduct. produets-liability of claim. asserts that the evidence tort, theory liability damages proximately of strict caused the actions Under (1) proving the burden of the de of the Defendant? bears unreasonably dangerous fective and condition of a) Freeman, Individually Martha (2) product and the defendant’s a causal connec Loss of Consortium plaintiff's tion between such condition and the Support Loss of damages. Armstrong Co. v. Rubber Freeman, b) Martha as Next Friend and (Tex.1978) (citing Urquidez, 570 S.W.2d Perry Freeman Guardian of Sean Perdue, B. and Jim M. The Law James Sales Loss Consortium Liability in 7- Strict Tort Support Hous.L.Rev. Loss of (1976-77)); see also Matthew J. c) Canavan, Ameri Lance Freeman William Liability 3d, § 4:1 at 11-12 Support can Law of Products Loss of d) Freeman Lori Yvonne Loss of Consortium consortium, Support trial Loss 10. With to loss e) charged jury: money, Leah Suzanne court What sum any, paid you do Loss now in cash find would оf Consortium if fairly compensate reasonably Support Loss Plaintiffs for family ignored. personal by suffered her Freeman and his cannot be for the Therefore, argues Family, any Reagan, omitted spouse parent. or 804 S.W.2d at 739). elements to the loss-of-consortium claims (citing Reed Tool 610 S.W.2d at by must be deemed found the court in such a plaintiffs must not establish the support judgment. manner to injury impaired family Tex. existence of an to the member, but also establish a causal nexus R.Civ.P. 279. injury between that and the defendant’s con- Family they asserts that are relieved Morgan, product. duct or its defective of then’ burden to secure threshold find Reagan, S.W.2d at see 804 S.W.2d at serious, ing permanent, disabling of a and 467; Whittlesey, 572 S.W.2d at 667. injury Upjohn to Freeman because failed to However, object to its omission.11 the Fami Consequently, Family could have ly’s cause of action for loss of consortium is (i) injury legally compensable by: shown a independent of personal-inju Freeman’s establishing a causal nexus between the ry claim. To find this “omitted” element (the Halcion) taking event of sued and Family, favor of the this Court would have to injury in a broad-form submission disregard jury’s negative answer to Free produets-liability ques- of the and damages question. Injury man’s im to the (ii) tions, obtaining finding an affirmative of paired family a prerequisite member is to the (iii) Freeman, securing sepa- to or a derivative claim of loss of consortium. Rea finding” injury rate “threshold of an to Free- 467-68; gan, Whittlesey, 804 S.W.2d at by Upjohn’s Reagan, man caused conduct.12 S.W.2d at 667. Because the answered 468; Whittlesey, 572 S.W.2d at taking that the of Halcion was not the cause Family single 668. The did not obtain a any Freeman, injury to we cannot hold finding product that actions or this “omitted” threshold issue deemed as caused to Freeman. matter of law. response only jury question In that to Conclusion legally compensable raised the issue of a Freeman, spousal parental Loss of answered and con ingestion sortium family are derivative of the of Halcion did not cause Free- mem condition, personal injury. ber’s claim Reagan, subsequent mental 804 man’s his ac- recover, tions, at 467. spouse consequences To or the followed. prove child must that the defendant is liable The to find refusal that Freeman suf- record, however, Upjohn 11. The prerequisite recovery indicates that member is not a for loss objected to the loss-of-consortium issue based on of consortium. Since this case was tried and permanent, Court, physical injury no evidence of a appealed, Supreme the Texas in Brown Family urges Indus., Lieck, Freeman. The that the no-evidence ing-Perris Inc. v. 881 S.W.2d 288 objection is insufficient to alert the 1994), trial court’s has clarified issue of whether loss attention to the need to submit the threshold spousal consortium can be recovered absent jury. Upjohn's objection issue to the Even if was proof physical injury. supreme court held insufficient, Upjohn preserved ‍‌​‌​​‌​​‌​‌​​​​​​‌‌‌​​​‌‌​​‌​‌​‌​​‌‌‌​​​​​​​‌‌​​‍by request error spousal parental and for loss inquire the triаl court to whether proof consortium are not recoverable of a absent serious, physical injury per to Freeman was serious, permanent, disabling inju physical manent, disabling. Dept, High See.State ry. Accordingly, Upjohn 881 S.W.2d at 294. ways Transp. Payne, & Public substantially question. submitted a correct Be (Tex.1992) (op. reh’g) (citing on mot. for question requested a cause that directed Holt, (Tex.1986)). Morris v. 714 S.W.2d 311 very attention court’s element of the missing claims loss-of-consortium from the Specifically, Upjohn requested the trial court charge, court’s this “omitted” element cannot be following question charge: to include the in the admitted under rule 279 of the rules of find, deemed you preponderance "Do of the evi procedure. dence, civil Tex.R.Civ.P.279. physical injury that the to William Free serious, permanent, disabling man was a supreme 12. The concedes that our court injury?” The trial court’s refusal to ask the finding has formulated a threshold to be made constituted clear refusal to submit an finder, with to the loss of consor- nеcessary essential element to a claim for loss fact tium, appeal, Family argues to the member be consortium. On serious, requested permanent, disabling. Reagan, substantially issue was not correct physical injury impaired family S.W.2d at 468. (Tex.1986). 683, sup Upjohn’s negli- an of 686-88 Loss of fered S.W.2d Family’s port pecuniary damages gence product precludes is an element of compensates family causes of action for loss of consortium. The which a member for damages damages resulting of for of consortium from lost economic bene award loss Prods., Inc., a matter of law. fits. v. Ohio Medical cannot stand as See Suber 646, (Tex.App. 811 S.W.2d 657 —Houston rule, general right As a denied) (en banc) (El 1991, writ [14th Dist.] damages exemplary depends recover on a J., lis, dissenting); 3 State Bar Of Texas, finding suffered actual dam Jury Charges PJC 81.02 PatteRN Texas ages underlying as a result of an tort. Nab family A claim for loss of member’s Ass’n, Longview v. & Loan 700 ours Sav. support duplicative economic of the dece 901, (Tex.1985); Dоubleday 903 S.W.2d & capaci earning dent’s claim for loss of future 751, Rogers, Co. v. 674 753-54 S.W.2d Súber, Therefore, ty. at a 811 S.W.2d 657. 1984). damages are Punitive recoverable recovery earning decedent’s for loss of future distinct, proof a tort. after of wilful capacity bars the beneficiaries’ suit for loss- Alexander, Amoco Prod. Co. v. 622 S.W.2d Súber, of-support damages. 811 at S.W.2d (Tex.1981); 563, City Corp. 571 Prods. (Tex.1980). Berman, 446, 610 S.W.2d action, necessary personal-injury In no damage actual is a ele a Texas Because recovery underlying recognized tort which the case has of loss-of- ment based, damages injured punitive damages exemplary support are to be for the member’s represents contingent damage family. support on an actual Loss of an ele are Nabours, at 903. Ac ment created the Texas award. of Moore, cordingly, exemplary damages Wrongful are not al Act. Death See predicated damages. on actual lowed unless Rem.Code AnN. Tex.Civ.Prac. & Harris, (Vernon 1986). Corp. personal- General Ins. 327 S.W.2d In 71.001-.011 (Tex.Civ.App. action, no injury in member who is —Dallas writ). jury’s Because the award of actual jured recovery but killed seeks for his stand, damages cannot there is no basis for earning capacity rather than loss of future exemplary damages. sus award We damages for family pursuing loss eco Upjohn’s point tain second of error. Due to support.13 nomic See 3 State Bar two, Jury Charges disposition point of error we do 80.02, our PJC Texas Pattern points Upjohn’s remaining not reach of error. (1990); 80.03, 80.14, Bennight v. 81.02 cf. Tex.R.App.P. 90(a). See Supply Western Auto n.r.e.). ref d writ —Austin

THE FREEMANS’ CROSS- not err in Consequently, the trial court did POINTS OF ERROR judgment entering take-nothing n.o.v. on one, cross-point In of error loss-of-support damages. We the claim for in refus- Family’s cross-point contends that the trial court erred of error overrule the judgment jury’s appeal, to enter on award of this disposition one. Due to the n Martha, Sean, Leah, and support Family’s loss of second we need not address the Tex.RApp.P. 90(a). n.o.v. and judgment Lance. In its motion for cross-point. See loss-of-sup- appeal, Upjohn on contends that judgment and the trial court’s We reverse per- in port damages are not recoverable take-nothing judgment in favor of render a sonal-injury claim and that the evidence Upjohn. support legally insufficient award. Justice, McGARRY, concurring and dissenting. recognizes the recov

Texas law damages wrongful- ery loss-of-support Although panel serve on the I did not Lillebo, 722 this I ease, actions. Moore v. Tex. respectfully death dissent. grant of appeal court's Free- Freemans do not the trial moved for a directed verdict on earning capacity Freeman's claim for lost an instructed verdict on man’s claim for loss of future legally evidence. The economic benefit. on the basis of insufficient R.AppP. 90(e); imately question; O’Connor v. First CouH caused the occurrence Appeals, money and the amount of that would com- injuries, any, resulting pensate for from in this case found question. Morgan, the occurrence in proximate was a cause of the “oc- However, neither of these S.W.2d at 732. question.” currence in also found authorities tells us what the “event sued proximately that conduct caused upon” question” or the “occurrence in refers companion- the Freeman to lose the any given in case. ship support and emotional R. William compensate Freeman. The chose not to pattern The Court also cites the current Fi’eeman, Mr. who is a convicted murderer authority jury charge proposition as for the serving penitentia- in a life sentence the state in that both causal nexuses identified Mor- ry. gan single can into a be combined broad jury charge in this case does not suggests in a question, form but footnote question.” define the term “occurrence in only accomplished by using this can be Presumably, had an idea about what phrase term or the occumnce or question it meant when it answered the in Maj. injury.1 op. (citing at n. 3 3 State judge, the affirmative. The tidal who submit- Jury Charges Texas, BAR of Pattern Texas charge judgment ted and entered on the (1991)). However, pat- PJC 80.03 even verdict, presumed must also be to have had jury charge slavishly tern does insist on an idea about what the verdict meant. How- question using “injury” the term in all cases. ever, upon this Court has taken it itself to definition, fact, impose a after the that effec- contrary, pattern jury To the the current tively frustrates the clear intent of both charge quite makes it clear that a choice jury and the trial court. “injury” impor- between “occurrence” and is plain- tant of the when there is evidence The Court defines the “occurrence” as Mr. “injury-causing” tiffs is or ingestion Maj. op. of Halcion. “injury-enhancing” but not “occurrence-caus- only support 547. The offered for this 2 Jury ing.” Texas, legal definition is a Morgan citation to State Bar Of Pattern Charge § Compugraphic Corp., PJC 4.01, 4-6, (1987); pp. 4-7 (Tex.1984). Jury Charge appears The Court thus treat Bar Pattern State the definition an abstract p. law such PJC Absent (1990). 71.01, 71-3 that must be answered reference to case evidence, Jury Charge the Pattern Commit- authority legal commentary. and Such an acknowledged tee that there real is no dis- believe, analysis, I misguided is in from its occurrence-causing tinction in- between ception. liability, jury-causing and that both are ac- ceptable Russell modes submission. See Morgan correctly typical observed that the McMains, Indemnity H. Contribution personal-injury requires proof ease of two Multi-Party Litigation, Problems in Texas causal nexuses: between the defendant’s con- Mary’s L.J. That is upon; duct and the event sued St. and between why jury charge pattern offers the alter- injury. plaintiffs event sued and the [injury] natives of “[occurrence] [occurrence Morgan, Morgan at 732. illus- injury]” or in its form submission. It is not trated this distinction reference to the old pattern jury “injury” magic Mor- charge, ques- is a word under which asked two gan. prox- tions: whether defendant’s conduct reasoning, using ligence, following 1. Under the Court’s doctor’s orders occwrence such as not disjunctive ought or in the to be inade- resulting aggravation during recovery, quate jury may as well: the have found causation prior pat- sustained in a accident. The injury. of an occurrence without causation of jury charge plaintiff’s tern also refers to the mis- product to miti- use of a defective failure Examples given plaintiff’s preacci- include the damages, citing gate or avoid Duncan Cessna negligence, gasoline carrying dent unprotected quent such as in an Aircraft explodes container that in a subse- crash, plaintiffs postaccident neg- and the of their interpretation “psychiatric side effects” as basis

Even under the Court’s verdict, important point mean- suit. The is that the jury charge Mr. Freeman question” as it is used causing fifty percent of of “occurrence responsible was unclear, jury charge in the and the Court appears There to be no the “occurrence.” proper analysis in apply Freeman caused an has failed evidence Mr. Thus, determining meaning. causing an ac- its without “occurrence.” cording commentary ‍‌​‌​​‌​​‌​‌​​​​​​‌‌‌​​​‌‌​​‌​‌​‌​​‌‌‌​​​​​​​‌‌​​‍pattern in the for determin There áre two cardinal rules jury charge, either “oc- the decision to use First, ing meaning jury finding.3 of a jury charge “injury” currence” or in the interpret finding so reviewing court must entirely inconsequential under the facts of jury’s verdict as a as to reconcile it with the this case. whole, light reasonably possible evidence, and the manner of important pleadings

More is the observation Transp. Pac. opinion in Mor- submission. Luna v. Southern supreme neither the court’s 388, (Tex.1987); Co., Bender gan pattern jury charge and its 384 nor the Co., Transp. accompanying commentary any guid- v. Southern Pac. offer 257, (Tex.1980); Ins. in 260 Martin v. ance on what constitutes the “occurrence” Gulf 376, (Tex.App. Morgan appears equate Group, 788 any given case. S.W.2d —Dal Wood, 1989, n.r.e.); Archer v. question” in “the las writ ref'd “оccurrence with event 1989, (Tex.App. Morgan, upon.” sued 675 S.W.2d at 732. S.W.2d —Dallas writ). Second, finding inter no must be pattern jury charge seems to treat the uphold judgment. Jackson v. question” meaning preted in an acci- “occurrence dent, case, Fidelity in & Guar. appropriate a collision. United States Jury Charge 408, 412 The Court’s Texas, BaR PatteRN State 4-4, However, 4.01, opinion in case both rules. pp. 4-5 it this violates PJC meaning depend will on the is clear its example, interpretation of For the Court’s facts of each case. jury’s that Mr. Freeman verdict to mean case, inconsistent with the In has rather arbi- suffered no is this the Court jury’s finding the Free- upon,” caused trarily decided that “the event sued ie., “occurrence,” compan- Freeman’s ingestion mere man to lose Mr. was the ionship support. and emotional Court’s by of Halcion Mr. Freeman. This makes by arguing conflict ingestion opinion dismisses this little sense. The mere of Halcion Free- jury injury to Mr. by the event sued must find Mr. Freeman could not be consortium, dеtermining at man loss no cause of action accrued before begs argument it interpretation this is circular: This of but the time of that event. inter- jury’s question un- of whether charge verdict factual also makes question” in to mean Mr. pleading preted “occurrence intelligible: there is no or evidence begs legal negligent merely by injury; it also Freeman’s that Mr. was in any is contrary, he was of whether there evidence Halcion. To the ingesting justify distinguishing between pre- this case to merely taking medication that had been charge. “injury” in the “occurrence” and by him his doctor. scribed to interpret “occurrence” to The Court must case, ie., upon in sued this The event “injury” the evi- mean in this case because easily refer to question,” could “occurrence necessary to har- permits it and it is dence Hazelwood, shooting Donnie Mr. Freeman’s jury’s findings. monize the least, very to the onset Mr. or at the least, could including very At if “occurrence” problems, psychiatric psychosis, or the conse- loss, onset of depression, head- mean the memory psychosis, shooting imprisonment, then the Certainly, quent suicidal tendencies. aches and “injury” from the of the word petition clearly focuses on these omission plaintiffs’ McCoslin, meaning Northwestern Nat’l. Cas. Co. apply of a rules when 3. These phrase finding word or no unclear. If a —Waco clear, meaning, ordinary then finding writ). has a presumed have meant. will be is what the charge likely most reflects a conclusion

the trial court that the causal nexus between P. Willis TURNER Willie inju- Turner, such an occurrence and Mr. Freeman’s Appellants, E.

ry undisputed sepa- was and should not be rately “injury” submitted. The omitted issue sup- would be deemed found court INDEPENDENT RICHARDSON port judgment. Al- Tex.R.Civ.P. 279. DISTRICT, SCHOOL ternatively, interpret- “occurrence” should be Appellee. finding ed to mean or include a No. 05-93-01608-CV. necessary support because that Jackson, judgment. 412. 689 S.W.2d at Appeals of Court of uphold I would award of dam Dallas. ages loss consortium because the found that the defendants caused Mr. Free Aug. injuries, psy

man’s and because Freeman’s Rehearing Denied Oct. resulting imprisonment chosis and life are serious, permanent disabling physical in

juries Browning- as a matter of law. See Indus., Lieck,

Ferris Inc. v. 881 S.W.2d 288 (Tex.1994); Reagan Vaughn, see also uphold I would punitive they

the award because properly predicated

are on this award damages.

actual

I concur in the Court’s conclusion that the properly

trial court judg refused to enter

ment on the award support for loss of Martha,

to Sean and Lance Freeman. The

family members’ loss of claim support is sub

sumed within Mr. claim Freeman’s for loss of earning capacity.4

future Suber Ohio Prods., Inc.,

Medical [14th writ Dist.] —Houston

denied) (Ellis, dissenting). plaintiffs’ J. challenge

failure the trial court’s directed precludes

verdict on Mr. claim support.5

award for loss of n.r.e.). Judge say support Ellis' dissent did not that the two Austin writ ref'd If loss however, "duplicative," they are claims "duplicative” earning capaci- of loss of future many are not. There are instances in which a ty, majority suggests, as the then the trial court spouse’s earning capacity future would not be way. able submit it If the should be either solely provide support ‍‌​‌​​‌​​‌​‌​​​​​​‌‌‌​​​‌‌​​‌​‌​‌​​‌‌‌​​​​​​​‌‌​​‍family. used for the merely overlapping dupli- two claims are cative, but not contend, plaintiffs I and the trial join Appeals questioning I the Third Court of court should be free to submit the narrower loss why support wrong- loss of claims are limited claim, earning support rather than the broader Bennight ful death actions. See v. Western Auto claim, capacity personal injury action. Supply (Tex.App.—

Case Details

Case Name: Upjohn Co. v. Freeman

Court Name: Court of Appeals of Texas

Date Published: Aug 26, 1994

Citation: 885 S.W.2d 538

Docket Number: 05-93-00468-CV

Court Abbreviation: Tex. App.