 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Baroldy v. Ortho Pharmaceutical Corp.3/22/1988
Defendant-appellant Ortho Pharmaceutical Corporation (Ortho) appeals from the judgment entered in favor of appellees Roberta Baroldy and Lee Baroldy (plaintiffs) after a jury awarded them $1,500,000 in this products liability suit.
Ortho is incorporated in Delaware with headquarters in New Jersey. It does business in all 50 states. Ortho contends on appeal that the trial court erred in applying Arizona law rather than North Carolina law, and then applied that law erroneously in its evidentiary rulings, resulting in prejudice
to Ortho that requires a new trial. Ortho does not claim that Arizona courts do not have jurisdiction or provide a proper venue.
Plaintiffs cross-appeal on the basis of an evidentiary ruling, but because they request no affirmative relief and conceded at oral argument that they do not desire reversal, we do not address that issue.
Because we find no reversible error, we affirm the judgment.
1. Factual Background
Approximately 6 weeks after the birth of her first child in April 1982, Roberta Baroldy's obstetrician prescribed an Ortho All-Flex diaphragm. Ortho has manufactured and sold many millions of diaphragms for more than 40 years. Roberta began using the diaphragm in early July 1982, and experienced discomfort. She returned to her obstetrician on July 8, 1982, to check the fit of the diaphragm, and was assured it fit well. During the next three days, she inserted and removed the diaphragm repeatedly, wearing it for extended periods. On July 11, 1982, Roberta awoke with a high fever and a flushed appearance. Her husband, Lee, took her to the emergency room of the local hospital, where she was told she had the flu. Roberta returned home, where her symptoms worsened. She returned to the emergency room late that afternoon, and was admitted for treatment. Her hospital record indicates that a culture taken from her diaphragm tested positive for Staphylococcus aureus ( S. aureus ), a common symptom of toxic shock syndrome (TSS). See generally Chesney, Bergdoll, Davis & Vergeront, The Disease Spectrum, Epidemiology, and Etiology of Toxic-Shock Syndrome, 38 Ann.Rev.Microbiol. 315 (1984). The admitting physician recorded in Roberta's medical record that his initial evaluation was "Toxic shock state secondary to retained vaginal diaphragm." Roberta was hospitalized for 41 days with TSS, at times comatose and near death.
Ortho does not dispute on appeal that Roberta had TSS, although that issue was litigated at trial. Plaintiffs' medical witnesses testified at trial that Roberta will continue to have physical problems the rest of her life as a result of the disease.
At the time Roberta's diaphragm was prescribed, the Patient Information Booklet (PIB) accompanying the device contained the following statements:
You need not feel any urgency about removing the diaphragm. It is safe to let it remain in position for 24 hours. Should you forget to remove it for some hours, or should removal be inconvenient at any particular time, that is no cause for concern. Just bear in mind that if you desire to have intercourse again, you must first apply more spermicidal jelly or cream.
Prior to and during Roberta's hospitalization, plaintiffs were living in North Carolina, where Lee was temporarily stationed in the United States Army. After Roberta's release from the hospital, plaintiffs returned to Arizona, where they had lived prior to Lee's enlistment. In October 1983, plaintiffs filed this products liability suit against Ortho in Arizona, claiming first, that the diaphragm was defective under 2 Restatement (Second) of Tor
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Arizona Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|