Barson v. E.R. Squibb & Sons, Inc.

HOWE, Justice

(dissenting):

I dissent from the following statement in Part I and in its application in this case:

Where, as here, more than one cause of action is submitted to the jury, if one of the causes of action is error-free, is supported by substantial evidence and provides an appropriate basis for the general ' verdict, we will affirm that verdict.

The opinion of the Court cites as authority for that rule Leigh Furniture and Carpet Co. v. Isom, Utah, 657 P.2d 293 (1982). However, as I endeavored to point out in a concurring opinion in that case, it was not necessary to there employ that rule since the jury instruction under scrutiny did not offer alternatives or choices to the jury as to separate torts or theories of recovery. I reserved expression of any opinion on the rule until it was squarely before us. This case presents that opportunity.

The majority opinion cites no authority for the rule other than Leigh Furniture and Carpet Co. v. Isom, supra. The latter case cited a number of cases from other jurisdictions where the rule had been applied. However, no mention was made that the various jurisdictions in this country are divided in their adoption and support of the rule. Contrary cases were not cited or discussed. In my concurring opinion, I noted the division and cited Bredouw v. Jones, Okl., 431 P.2d 413 (1967); Heinen v. Heinen, 64 Nev. 527, 186 P.2d 770 (1947); and Martin v. Northern Pacific Railway, 51 Mont. 31, 149 P. 89 (1915), as representatives of the contrary viewpoint. See those cases and Maccia v. Tynes, 39 N.J.Super. 1, 120 A.2d 263 (1956) for a compilation of authorities on each side. The latter case *842characterized the rule as a minority rule, rejected its adoption in that state and held that there must be a reversal even if the error infects only one of the issues.

In those jurisdictions which adopt the rule, it often finds application where an error is made in instructing the jury as to one of several theories of recovery advanced by the plaintiff or when an insufficiency of evidence to sustain one such theory is found by the appellate court. Ohio, which has produced perhaps the greatest number of cases on the subject, terms the rule the “two-issue rule” but has restricted it to erroneous instructions to the jury and has not applied it to errors relating to the admission or rejection of evidence. Croke v. Chesapeake and Ohio Railway Co., 86 Ohio App. 483, 93 N.E.2d 311 (1949).

I oppose the adoption of the rule in this state. The rule hangs on the factually unsound tenuous presumption that the jury found for the prevailing party on the cause or causes of action or on the defenses which are error-free. To indulge in such presumption is to me an abdication of our responsibility as a reviewing court. The Supreme Court of Nevada in Heinen v. Heinen, supra, adopted the contrary rule, to wit, that where two or more material issues are tried and submitted to the jury and the verdict is a general one, it cannot be upheld if there was error as to one of the two or more issues. The court said that “the reasoning of the cases supporting this rule appear to us to be the better logic _” In Maccia v. Tynes, supra, the court charged that the rule relied upon by the majority opinion in the instant case was “less equitable.” Similarly, the court in Tisdale v. Panhandle & S.F. Railway Co., Tex.Com.App., 228 S.W. 133 (1921) rejected the rule as “unsound.” In my opinion, the rule is inconsistent with our decisions in Ivie v. Richardson, 9 Utah 2d 5, 336 P.2d 781 (1959) and Watters v. Querry, Utah, 588 P.2d 702 (1978) where we reversed jury verdicts because one instruction given was erroneous even though other instructions which were inconsistent therewith properly stated the law. In the latter case we explained:

The fact that the other instructions were given inconsistent with the one in question and consistent with the law cannot properly be regarded as curing the misconception the jury might have formed from the erroneous instruction complained of. The jurors would not know which instruction was correct and which one was in error and thus would simply be in the position of not knowing which instruction to follow; and neither the parties nor the court would know which they did follow.

(Citation omitted.) Clearly, this Court in those cases refused to presume that error-free instructions were followed by the jury in arriving at its verdict. New trials were ordered.

My rejection of the rule is not based on favoring one side over the other since the contrary rule which I favor would require the reversal of a general verdict in favor of a defendant, as in Zatkin v. Katz, 126 Conn. 445, 11 A.2d 843 (1940) as well as when there is a general verdict in favor of a plaintiff, as in Ohrmann v. Chicago & N. W. Railway Co., 223 Minn. 580, 27 N.W.2d 806 (1947). My position rests upon my belief that the rule adopted by the majority in the instant case allows too much laxity in the conduct of the trial. It could encourage enterprising counsel in cases where multiple causes of action are advanced or multiple defenses are interposed to risk error in one or more of them, knowing that as long as one is error-free, a general verdict in its favor will be sustained on appeal.

One of Squibb’s major thrusts at the trial was to keep out of evidence the FDA mandated post-1972 package inserts under Rule 51, Utah Rules of Evidence. The trial court admitted them in support of plaintiffs cause of action for strict liability but excluded them with relation to the plaintiff’s claim of negligence. Much of the testimony at the trial focused on the inserts. Their meaning and significance became a major issue. In denying a post-trial motion of Squibb, the trial judge com-*843merited that this question of admissibility gave him the greatest problem in the conduct of the trial. Squibb now raises the propriety of the limited admission of the inserts as its principal point on appeal. Any system of justice worth its salt should be able to extend to a losing party who has been saddled with a judgment of $1.5 million the satisfaction of a review on the merits of the steps by which such a verdict and judgment was reached. To sidestep that task by the employment of a presumption which is flawed in logic is indefensible.