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Feldman v. Lederle Laboratories6/10/1993
Per Curiam
We granted certification, 130 N.J. 39 (1992), to consider whether the Appellate Division had correctly ordered yet another retrial of this fifteen-year-old action based on errors in the trial court's jury charge. With but one modification we affirm the judgment below substantially on the basis of the Appellate Division opinion. See Feldman v. Lederle Lab., 257 N.J. Super. 163 (1992). Our disagreement is limited to so much of that court's opinion as addressed the admissibility of a notation on a letter -- the "Swanzey notation."
I
Plaintiff's complaint, originally filed in 1978 against Lederle Laboratories, charged that Lederle's tetracycline-based drug Declomycin, which had been administered to plaintiff from her birth in 1960 until some time in 1965, had permanently discolored her teeth. She contended under a strict-liability theory that the product had been defective as marketed at that time because it had failed to warn that pediatric administrations could cause tooth discoloration. Defendant prevailed at the first trial, and the Appellate Division affirmed in an unpublished opinion. We granted certification, Feldman v. Lederle Lab., 91 N.J. 266 (1982), and remanded the cause to the Appellate Division for reconsideration in light of Beshada v. Johns-Manville Products Corp., 90 N.J. 191, 447 A.2d 539 (1982). The Appellate Division again affirmed, Feldman v. Lederle Lab., 189 N.J. Super. 424 (1983).
We again granted certification, 94 N.J. 594 (1983), reversed the judgment, and remanded for a new trial, holding that when a strict-liability defect consists of an improper warning, reasonableness of the defendant's conduct is a factor in determining liability. Feldman v. Lederle Lab., 97 N.J. 429, 451 (1984) (Feldman I). The question in such cases is whether, assuming that the manufacturer knew of the product's harmful propensities, the manufacturer acted as a reasonably-prudent manufacturer in marketing the product without an adequate warning. Ibid. Thus, once the law imputes knowledge to a manufacturer, strict-liability analysis, like negligence, focuses on the reasonableness of a defendant's conduct. Ibid.
At the close of the evidence in the second trial in 1985, the trial court denied Lederle's motion to dismiss the complaint on the basis that the claim had been preempted by federal law. The jury returned a verdict for plaintiff on her strict-liability failure-to-warn claim. The verdict form reflected the following findings of fact:
1. Plaintiff ingested Declomycin between 1960 and 1963.
2. There was not a defect in Declomycin based on a failure to warn of tooth discoloration in 1960 and in 1961.
3. There was a defect in Declomycin based on its failure to warn of tooth discoloration in 1962 and in 1963.
4. The failure to warn was a proximate cause of plaintiff's losses and injuries.
5. The conduct of Lederle was not a deliberate act or omission with knowledge of a high degree of probability of harm to the plaintiff and reckless indifference to the consequences.
The finding of "no defect" before 1962 apparently reflects partial acceptance of the testimony of defendant's three experts that the "discoloration" side effect associated with tetracycline was unknowable before that date.
Lederle appealed, renewing its contention that plaintiff's claim based on failure to warn had been preempted by federal laws and regulations governing antibiotic and prescription-drug labeling. Alternatively, Lederle argued that reversal was required because t
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