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Renfro v. Black6/13/1990
MOYER, C.J.
Plaintiffs-appellants, first and third propositions of law are interrelated and will be considered together.
Plaintiffs argue that the trial court should have permitted the jury to consider the "timeliness" of a so-called "Dear Doctor" letter dated "November, 1983" that Smith Laboratories sent to Dr. Dwight, and that the trial court should have instructed the jursas plaintiffs requested in proposed instruction No. Four.
Dr. Dwight testified that he periodically received correspondence from Smith Laboratories regarding the drug Chymodiactin. Prior to injecting Yvonne Renfro with Chymodiactin, Dr. Dwight received a November 1983 "Dear Doctor" letter from Smith Laboratories.
Among other information, the four-page letter reported that ten patients had suffered "CNS disturbances" of varying degree after chemonucleolysis, including chills, hypertension, shifting levels of consciousness, paresis or paraplegia, and, in some instances, cerebral hemorrhage. Three deaths were reported as having occurred in the ninety days preceding the November 1983 letter. These deaths were for reasons other than the paraplegia suffered by Mrs. Renfro.
The essence of plaintiffs' argument with regard to the "Dear Doctor" letter is that Smith Laboratories was negligent in not sending the letter in sufficient time to warn physicians who might perform a chemonucleolysis procedure. Plaintiffs' requested instruction No. Four would direct the jury that a warning may be found to be unreasonable if it was unduly delayed, reluctant in tone or lacking in a sense of urgency. The trial court refused to submit the question of timeliness of the November letter because delay had not been established as a proximate cause of Mrs. Renfro's injury .
As plaintiffs indicate, in Seley v. G.D. Searle & Co. (1981), 67 Ohio St.2d 192, 198, 21 O.O. 3d 121, 124, 423 N.E. 2d 831, 837, we stated that " warning may be found to be unreasonable in that it was unduly delayed, reluctant in tone or lacking in a sense of urgency." However, a trial court has discretion whether to give a requested jury instruction based on the dispositive issues presented during trial. "`It is the duty of a trial court to submit an essential issue to the jury when there is sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue. * * *'" Bostic v. Connor (1988), 37 Ohio St.3d 144, 147, 524 N.E. 2d 881, 884. A review of the record indicates that the emphasis at trial was the content or substance of the warning in the correspondence sent by Smith Laboratories to Dr. Dwight and other physicians.
Dr. Dwight testified that he had attended a seminar in Chicago in which he learned that if either the Chymodiactin or the dye got into the intrathecal space the result could be paralysis or subarachnoid transverse myelitis. Additionally, Dr. Dwight knew from the DPI that the drug was extremely toxic when injected intrathecally in animals, and therefore great caution must be exercised in assuring that Chymodiactin is not injected intrathecally. He testified to a full understanding of these dangers before he performed the procedure on Mrs. Renfro.
Dr. Dwight testified that he received and read the November 1983 letter before performing the chemonucleolysis on Renfro. Nevertheless, Dr. Dwight felt that the warning containesin the November "Dear Doctor" letter was insufficient to warn of paraplegia as a possible side effect. Clearly, the issue for the fact finder was to determine whether the substance of the letter constituted adequate warning in light of the three new cases of parapl
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