Betty BURLISON, Appellant, v.

WARNER-LAMBERT COMPANY, Appellee.

No. 87-1217.

United States Court of Appeals, Eighth Circuit.

Submitted Dec. 15, 1987.

Decided March 17, 1988.

Rehearing Denied April 8, 1988.

Roman de la Campa, Sioux City, Iowa, for appellant.

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Michael R. Hellige, Sioux City, Iowa, for appellee.

Before JOHN R. GIBSON, BOWMAN and WOLLMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge. Betty Burlison appeals from the judgment entered against her on her claim against Warner-Lambert based on an anaphylactic reaction allegedly caused by its product, Hall's mentholyptus cough tablets.

While the jury was deliberating, it request d further explanation of one instruction, ut returned a verdict in favor of the deendant before the inquiry was answered, n ruling on Burlison's motion for a new rial, the district court^{Footnote 1} determined that tie instruction was erroneous, but that uch error was harmless because a directed erdict should have been granted for Warer-Lambert. We conclude that this ruling f the district court was correct and that it enders consideration of any trial errors nnecessary. Burlison v. Warner-Lamert Co., No. C 83-4210 (N.D.Iowa Jan. 15, 987). We accordingly affirm the judglent of the district court. On January 5, 1982, Burlison took three [all's mentholyptus cough drops. She aok one at 8:50 p.m., one at 9:20 p.m., and ne at 10:10 p.m. Shortly after Burlison 3ok the last tablet, her throat began to well and she had difficulty breathing, he went into shock and was taken to a ospital, where she continued to have troule breathing and temporarily lost her eyeight. Her complaint alleges that she was iagnosed as having suffered an anaphyictic or severe allergic reaction to the ough drops.

On December 13,1983, Burlison filed this iversity action, alleging that the Hall's ablets caused her anaphylactic reaction and that Warner-Lambert was negligent in failing to warn about such reactions and in mislabeling the product. On December 4, 1984, Warner-Lambert moved for summa-

ry judgment on the ground that Iowa law does not permit recovery from the manufacturer of a product to which the plaintiff is allergic. See Bonowski v. Revlon, Inc., 100 N.W.2d 5, 9 (Iowa 1959). The district court denied this motion on the basis of the facts then in evidence, ruling that WarnerLambert had not established its right to judgment beyond controversy, see Bradsher v. Missouri Pac. R.R.,  679 F.2d 1253, 1256 (8th Cir.1983), and that in any event sound judicial discretion dictated that the case be fully developed at trial, see McLain v. Meier,  612 F.2d 349, 356 (8th Cir.1979). Burlison v. Warner-Lambert Co., No. C 83-4210 (N.D.Iowa March 21, 1986).

A jury trial was held in October of 1986. At the close of the evidence Warner-Lambert moved for a directed verdict. Although persuaded that a directed verdict was appropriate, the district court denied the motion to avoid the possibilities of a retrial and a second appeal. See Hladyshewski v. Robinson,  557 F.2d 1251, 1255 n. 3 (8th Cir.1977).

The case was submitted to the jury and a little more than two hours later the jury sent the marshal up with a copy of Instruc tion 11 and an oral request for further explanation of the instruction. The court then informed the jury that it needed a written question or statement in order to respond. A short time later, the marshal returned and informed the court that the jury had reached a verdict. The court re convened the jury and took the verdict for Warner-Lambert. _________ ; __________ On October 17, 1986, Burlison filed her motion to set aside the verdict and for a new trial. In ruling on the motion, the district court concluded that it had erred in giving Instruction 11. While conceding the difficulties created by the unanswered jury inquiry, the court also concluded that it had no choice but to accept the verdict. It then proceeded to review the record, concluded that there was insufficient evidence for a jury issue, and accordingly denied the motion.

On appeal Burlison argues that she is entitled to a new trial because of error in

2. Suriison argued before the district court that Or. Clark's pretrial deposition contained admisInstruction 11 and because of the court's error in failing to provide the jury with an answer to its inquiry. Burlison also contends that the district court's ruling on summary judgment was res judicata, barring later entry of judgment for WarnerLambert, and that the district court erred in refusing her requested instructions on mislabeling.

The district court found that Burlison had presented insufficient evidence to establish a jury question as to whether Warner-Lambert knew or had reason to know that some consumers might be allergic to Hall's tablets, and that no warning on the Hall's package could have prevented Burlison's reaction, because there was no evidence that Burlison knew she was allergic to the menthol in the tablets. See Bonowski, 100 N.W.2d at 8-9; cf. Sterling Drug, Inc. v. Cornish,  370 F.2d 82, 84-85 (8th Cir.1966); The evidence was such that a directed verdict for Warner-Lambert should have been granted, see Carper v. State Farm Mut. Ins. Co.,  758 F.2d 337, 340 (8th Cir.1985), and any error in Instruction 11 was therefore harmless. See Prebble v. Broderick,  535 F.2d 605, 613 (10th Cir.1976); Maryland Casualty Co. v. Dondlinger & Sons Constr. Co.,  420 F.2d 1368, 1371-72 (8th Cir.1970).

The district court did not err in concluding that there was insufficient evidence to support a verdict for the plaintiff. Burlison's expert witness, the modioal pharmacist Ed Hines, toctifiod that ho had m literature, but could not point to any reported case of a Hall's tablet causing an allergic or anaphylactic reaction. Burlison also called Dr. Joseph Clark, a long-time Warner-Lambert research employee, as an adverse witness. Clark testified that the complaints received about Hall's tablets involved customers who had broken their teeth on the product or claimed the cough drops did not work. None of the complaints were similar to Burlison's, and Clark also stated that no allergic reactions had been reported in the tests conducted on Hall's tablets.² Warner-Lambert's wit-

nesses likewise denied knowledge of similar reactions, and Burlison did little, if anything, to impeach their testimony. There was also no evidence that Burlison knew she was allergic to any of the ingredients in the tablets. The district court correctly concluded that there was no submissible jury issue and that any error in Instruction 11 was therefore harmless.

Burlison's most troublesome argument is that the denial of Warner-Lambert's motion for summary judgment was res judicata, precluding later entry of judgment for Warner-Lambert. Suffice it to say that the district court made clear on several occasions that its analysis was based upon the record then before it, and that final determination required full development of the facts. Cf. Federated Dep 't Stores, Inc. v. Moitie,  452 U.S. 394, 398, 101 S.Ct. 2424, 2427-28, 69 L.Ed.2d 103 (1981) (res judicata requires final judgment on the merits of an action); Switzerland Cheese Ass'n v. E. Home's Market, Inc.,  385 U.S. 23, 25, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966) (denial of summary judgment because of unresolved issues of fact does not decide anything about the merits of the claim). The court's later analysis based on all of the evidence shows that Burlison simply failed to establish a submissible case on any of her claims against Warner-Lambert. While the district court so concluded in determining only that Instruction 11 was harmless error, our affirmance of that conclusion dictates that Warner-Lambert was entitled to judgment as a matter of law. This renders it unnecessary for us to further consider any of the trial errors raised by Burlison.

The judgment of the district court is affirmed.