No. 2880 Philadelphia, 1981, APPEAL FROM THE JUDGMENT ENTERED OF NOVEMBER 5, 1981 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIVISION, LAW NO. 4166 MAY TERM, 1975.
Tom P. Monteverde, Philadelphia, for appellant.
Sidney L. Wickenhaver, Philadelphia, for Ciba-Geigy, appellee.
Hester, Cirillo and Johnson, JJ. Johnson, J., concurs in the result.
[ 308 Pa. Super. Page 509]
Maria Bianco Baldino (appellant) appeals from a judgment entered in favor of appellee Ciba-Geigy Corporation (Ciba). The facts which gave rise to the instant appeal are as follows.
On November 27, 1973, appellant consulted Dr. Armand Castagna, a general practitioner, for treatment of lower back pain. After a brief examination, Dr. Castagna diagnosed her condition as an inflamed coccyx and prescribed Butazolidin-Alka (Butazolidin), a drug manufactured by Ciba. Appellant took the prescribed dosage for ten days and obtained relief. The pain re-occurred, however, and appellant telephoned Dr. Castagna and requested a prescription refill. The refill was granted over the telephone without any additional examination of appellant.*fn1
In January, 1974, appellant consulted Dr. Herbert Lipkin, complaining of fatigue, sore throat, swollen glands and bruising. These symptoms are consistent with developing aplastic anemia which can be caused by Butazolidin treatment. Appellant did not inform Dr. Lipkin that she had taken this drug, however, because she was not aware of the significance of these symptoms. She was treated for a respiratory infection, but when her symptoms did not abate, Dr. Lipkin ordered blood tests. The results showed an abnormally low level of hemoglobin. Appellant was immediately admitted to the hospital and remained there for eleven days. During that time, her condition was diagnosed as aplastic anemia caused by Butazolidin.
Subsequently, appellant has had to receive blood transfusions every two months and consume male hormones which have deepened her voice and caused unsightly body hair. She has been ordered not to become pregnant because she does not have enough blood to support herself, and it would be fatal to her if she carried a child. Appellant has an 80% chance of dying from aplastic anemia. Appellant and her husband instituted the present action against Dr. Castagna,
[ 308 Pa. Super. Page 510]
Ciba and Morris Park Pharmacy. After a fifteen day jury trial, the jury found the following:
1. Butazolidin was a substantial factor in causing appellant to contract aplastic anemia;
2. Dr. Castagna was negligent in prescribing Butazolidin for appellant, or in failing to advise her to report any symptoms or side effects to him, or failing to comply with the prevailing medical standards for prescribing the drug;
3. Ciba did not negligently market the drug in such a way as to encourage physicians to prescribe it in instances where it was not medically appropriate, and Ciba did not negligently encourage physicians to prescribe Butazolidin without taking proper precautions.*fn2
After appellant's post-verdict motions were denied, she filed the instant appeal.
Appellant's first contention on appeal is that the verdict in favor of Ciba was against the weight of the evidence and, as such, the lower court erred in denying her motion for a new trial. The law regarding appellate review of the grant or denial of a new trial on the ground that a verdict is against the weight of the evidence is well established in this Commonwealth:
[T]he decision to either grant or deny a motion for a new trial is within the sound discretion of the trial court and will be reversed on appeal only if the trial court palpably abused its discretion . . . [A] new trial should only be granted where the verdict is so contrary to the evidence as to shock one's sense of justice [and] . . . not where the evidence is conflicting and the jury might have found for either party, nor where the trial judge might have reached a different conclusion on the same facts. (citations omitted).
Myers v. Gold, 277 Pa. Super. 66, 69, 419 A.2d 663, 664 (1980). See also, Peair v. Home Association of Enola, 287 Pa. Super. 400, 430 A.2d 665 (1981); Jacob Kline Cooperage, Inc. v. George W. Kistler, Inc., 286 Pa. Super. 84, 428 A.2d
[ 308 Pa. Super. Page 511583]
(1981). In determining whether a verdict is against the weight of the evidence, we must consider all the evidence, Ditz v. Marshall, 259 Pa. Super. 31, 393 A.2d 701 (1978), and not merely the evidence in the light most favorable to the verdict winner. If a court finds that the verdict is so greatly against the weight of the evidence as to shock the judicial conscience, it has the duty to disagree with the jury and to overturn its verdict, no matter how many new trials need be had ...