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Baroldy v. Ortho Pharmaceutical Corp.3/22/1988
ning its product. Tucson Indus., Inc. v. Schwartz, 108 Ariz. 464, 468, 501 P.2d 936, 940 (1972). Therefore, it was entirely appropriate for O'Connor to testify about whether Ortho had a duty to warn in
light of the industry practice of giving warnings. Such testimony related to subject matter that was not within the knowledge and experience of the average juror. See Rule 704, Arizona Rules of Evidence; Pincock v. Dupnik, 146 Ariz. 91, 96, 703 P.2d 1240, 1245 (App.1985). The average juror does not know when a pharmaceutical company should provide a warning. Cf. Rabe v. Cut and Curl of Plaza 75, Inc., 148 Ariz. 552, 715 P.2d 1240 (App.1986) (whether a baby crawling on the floor of a beauty salon creates a hazard to customers is within the knowledge and expertise of jurors and should not be the subject of expert testimony); Pincock (expert testimony is not appropriate where its purpose is to educate the jury on the reasonableness of a high speed chase).
In this case, O'Connor's testimony went to whether a warning was necessary as opposed to the adequacy of the warning. As already mentioned, O'Connor's testimony about the adequacy of the warnings was stricken by the judge.
Ortho relies on Elledge v. Brand, 102 Ariz. 338, 339, 429 P.2d 450, 451 (1967), to argue that the trial judge's instructions could not adequately cure the prejudice and that a new trial is required. Because Elledge was a criminal case featuring several instances of attorney misconduct and the introduction of evidence that had no bearing on the alleged crime, we do not find its holding persuasive in this context. Rather, we find that any prejudice arising from O'Connor's testimony about the contents of Ortho's warnings was cured when the trial judge struck O'Connor's testimony as to the adequacy of the warnings. See Godwin, 129 Ariz. at 421-22, 631 P.2d at 576-77.
C. Duty to Revise. Finally, Ortho argues that the trial court erred in precluding Dr. Schlievert from testifying that Ortho did not have a duty to revise its literature in light of its admission of O'Connor's testimony. Dr. Schlievert, like Dr. Hanna, was a microbiologist. Because the trial court did not allow either microbiologist to testify about Ortho's duty to revise its PIBs, we find no abuse of discretion. We again endorse the principle that the decision to admit expert testimony lies within the trial court's sound discretion. E.g., Bliss v. Treece, 134 Ariz. 516, 518, 658 P.2d 169, 171 (1983).
The judgment is affirmed.
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