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Bluestein v. Upjohn Co.





APPEAL from the Circuit Court of Cook County; the Hon. WARREN D. WOLFSON, Judge, presiding.


The plaintiff, Stewart Bluestein, brought an action to recover damages for personal injuries which allegedly resulted from his ingestion of Cleocin, a drug manufactured by the Upjohn Company. The complaint alleged liability on the bases of negligence, strict liability, breach of warranty and wilful and wanton conduct. The trial court directed a verdict for Upjohn on the breach of warranty count. Although the jury returned a general verdict for the plaintiff, it answered "no" to a special interrogatory that asked "[w]as Cleocin a proximate cause of the injuries claimed by Stewart Bluestein?" *fn1 Because of this answer the trial court entered judgment in favor of Upjohn. The plaintiff's argument on appeal is that the trial court erred in entering judgment on the special interrogatory and in directing the verdict on the breach of warranty count. The plaintiff also contends that certain trial errors occurred which mandate a reversal. These will be detailed later in the opinion.

The plaintiff was born on April 3, 1955. During his teenage years, he experienced difficulty with acne, which prompted him to consult Dr. Irving Distelheim, a dermatologist. Dr. Distelheim began treating the plaintiff on January 8, 1971. He prescribed Cleocin from January to July of 1973 after hearing that Cleocin was effective in the treatment of acne.

On April 23, 1973, the plaintiff began to experience abdominal cramps, vomiting and diarrhea. He visited Dr. Andleman, his regular physician, who also prescribed Cleocin. A few weeks later it became apparent that the plaintiff was suffering from inflammatory bowel disease and required hospitalization. From April of 1973 through November of 1979, the plaintiff was hospitalized 34 times for surgical procedures and other treatment resulting from his inflammatory bowel disease. The extensive surgery culminated in the removal of the plaintiff's colon and portions of his small intestine, rectum and anus.

At trial, Upjohn did not dispute the severity of the plaintiff's injuries. Rather, it took the position that his injuries were the result of a pre-existing bowel condition called Crohn's disease and were not related to the ingestion of Cleocin. Upjohn presented expert testimony to the effect that there are three separate diseases included in the general category of inflammatory bowel disease. These are ulcerative colitis, Crohn's disease, and antibiotic associated colitis. Upjohn defended the case on the proposition that the plaintiff has Crohn's disease, and although Cleocin has been linked to antibiotic associated colitis, there is no causal relationship between Cleocin and either Crohn's disease or ulcerative colitis.

The plaintiff presented one expert, Dr. Matthew J. Ellenhorn, who contradicted most of the testimony presented by Upjohn on the issue of causation. He stated that his opinion, based on a reasonable degree of medical certainty, was that the plaintiff's condition was caused by the ingestion of Cleocin. He further stated that assuming the plaintiff had an underlying Crohn's disease Cleocin could have aggravated the condition causing massive bleeding and creating the need for surgery. Dr. Ellenhorn testified that Upjohn fell below the requisite standard of care by marketing Cleocin without a warning that one of its adverse reactions could include severe inflammatory bowel disease. He then stated that all of the bowel diseases, Crohn's disease, ulcerative colitis, and antibiotic associated colitis have in the past 10 years been increasingly categorized under the heading of inflammatory bowel disease because a physician cannot distinguish among them in many cases. The plaintiff's case therefore centered around the argument that Upjohn failed to adequately warn of the association between Cleocin and inflammatory bowel disease. This breach of duty on the part of Upjohn led to the plaintiff's ingestion of Cleocin which ultimately resulted in his very serious injuries.

Because the causal relationship between Cleocin and the plaintiff's injuries emerged as the central issue at trial, Upjohn submitted a special interrogatory on proximate cause. The trial court gave the jury the following definition of proximate cause:

"When I use the phrase `proximate cause' in these instructions, I mean the injury complained of must be the natural and probable result of the acts of the defendant or of the failure of the defendant to act.

A cause of an injury is something that triggers a natural chain of events that ultimately produces the injury. Without the cause, the injury would not have happened."

The plaintiff did not object to this definition.

In addition, the plaintiff's damages instruction told the jury that one of the elements of damage for which the plaintiff claimed compensation was "[t]he aggravation of any pre-existing ailment or condition."

• 1 The plaintiff's main point on appeal is that the trial court erred in disregarding the general verdict in favor of the plaintiff and in entering judgment for Upjohn based upon the jury's answer to the special interrogatory. Citing Wicks v. Cuneo-Henneberry Co. (1925), 319 Ill. 344, 150 N.E. 276, he argues that the special interrogatory is controlling only if it is inconsistent with the general verdict. Inconsistency exists "when the special findings are clearly and absolutely irreconcilable with the general verdict." (Cohen v. Sager (1971), 2 Ill. App.3d 1018, 1019, 278 N.E.2d 453, 455.) Where an examination of the jury finding reveals a "reasonable hypothesis consistent with the general verdict," the special finding cannot be said to be absolutely irreconcilable. (2 Ill. App.3d 1018, 1019, 278 N.E.2d 453, 455.) Basically, the plaintiff claims that in the instant cause the jury's answer, when considered in light of the arguments advanced at trial and the jury instructions, can be interpreted as consistent with the general verdict for the plaintiff. He makes three specific arguments to support this general claim. While the third argument was raised during the conference on instructions, the other two were raised for the first time in the plaintiff's post-trial motion.

First, he argues that the jury understood the word "proximate" in its ordinary sense, as meaning "immediate or direct." Their finding that Cleocin was not the "immediate or direct" cause of the plaintiff's injuries is legally irrelevant and does not preclude the possibility that they found Cleocin to have been a remote cause.

We cannot accept the contention that the word proximate was confusing and that the jury applied the ordinary rather than the legal definition of the word in answering the special interrogatory. A reading of the above-quoted definition which the court gave to the jury reveals that they were clearly instructed as to the legal meanings of cause and proximate cause. A "cause" was defined as "something that triggers a natural chain of events that ultimately produces the injury * * * [w]ithout the cause, the injury would not have happened." Even if we accept the plaintiff's argument that the jury believed Cleocin to be a remote rather than a direct cause, this definition rather clearly encompasses the ...

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