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Baroldy v. Ortho Pharmaceutical Corp.3/22/1988
ng our patient instruction booklet along the lines which you have suggested.
After Dr. Wilson returned the DER to Ortho, Dr. Yeardon again acknowledged Ortho's receipt of that information by letter dated April 13, 1982.
Plaintiffs' closing argument further convinces us that the agency instruction was not directed "solely" at Dr. Dillon's testimony about the unidentified salesperson. Immediately after reading the quoted instruction to the jury, counsel for plaintiffs argued as follows:
We know there were a couple DER's that were provided directly to Ortho, and we know that Dr. Claire Wilson wrote Ortho and said, "I have got a patient up here, 15 years old, . . . using a diaphragm, and she's got Toxic Shock Syndrome. And I think your label is misleading, and I think you ought to consider changing it and putting the TSS warning in that exists on your tampons."
What they did is Dr. Yeardon writes a letter back saying, "We're considering doing that," but they didn't do it . . . . Dr. Yeardon sat on his duff, if you will, back at corporate headquarters, and let the information come in to him and didn't do anything with it.
[Dr.] Dillon's study was completed using Ortho diaphragms through an Ortho salesman in December of 1981. You may recall that Dillon published an article in Lancet, . . . which deals with contraceptive use, diaphragms . . . . But Yeardon, Dr. Yeardon, sits on his duff back at the headquarters and continues to monitor the literature.
Ortho did not argue at trial or on appeal that Dr. Yeardon was not its agent. This evidence clearly supports an instruction of the corporation's notice or knowledge through its agent based on evidence other than Dr. Dillon's statement about the Ortho salesperson. Therefore, we find that the jury instruction was not erroneous. Additionally, the instruction was a correct statement of Arizona law. See Fridena v. Evans, 127 Ariz. 516, 519, 622 P.2d 463, 466 (1980).
The trial court therefore correctly instructed the jury.
5. Admission of Subsequent Remedial Measures and Articles
Ortho argues that the trial court erred in admitting the following into evidence: (1) Ortho's two subsequent revisions of its PIB in July 1982 and May 1983; (2) the "Dear Doctor" letter Ortho sent to physicians in July 1983; and (3) articles, reports, and medical records published after July 11, 1982. Ortho maintains that admission of this evidence violated rule 407, Arizona Rules of Evidence, and A.R.S. ยง 12-686.
The trial court granted Ortho's pretrial motion in limine to preclude the above evidence. The trial court qualified its ruling by stating:
However, if the Defendant denies or contests that its diaphragm caused Plaintiff's injuries, claims that precautionary measures, such as changes in the literature warnings, were not feasible or necessary, then the Plaintiff may, pursuant to the "for another purpose" clause of Rule 407, offer evidence of Defendant's revisions of its [Patient] Information Booklet and literature in July, 1982 and May, 1983, the "Dear Doctor" letter sent to physicians in July, 1983, and other TSS studies and developments subsequent to 7/10/82 to impeach such claims. . . . If such evidence is admitted, the Court, if requested and tendered an instruction, will give an instruction limiting the purpose for which the jury can consider this evidence.
Because Ortho contested that its diaphragm caused plaintiff's injuries, the trial court admitted the disputed evidence. During jury instructions, the court told the jury
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