Petition — Vaughn v. G. D. Searle & Co.

* Supreme Court, U. &

FiLeED

1975

—

In the Supreme

of the United States

OCTOBER TERM, 1975

No...£97 66 3

ANITA LEE VAUGHN,

Petitioner,

Vv.

G. D. SEARLE & COMPANY,

a corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OREGON

ROGER TILBURY JOHN J. FLYNN

BRUCE J. ROTHMAN 954 Mili Drive

ROBERT P. JOHNSON Salt Lake City, Utah

1123 S. W. Yamhill

Portland, Or. 97205

GABRIEL E. BERG

667 Boise Cascade Bldg.

1600 S. W. 4th

Portland, Or. 97201

a ee eee

STEVENS-NESS LAW PUB. CO., PORTLAND, ORE. 10-78

INDEX

Opinion Below .........

I, on es

Constitutional Provisions Involved

er I

Stage in Proceedings When the Federal 5 Gussie

RIES ETE SURES SN re

Reasons for Allowing the Writ .

EE RE eT

This case raises a critical — cubatantio’ fed-

eral question. Namely, what common minimal

——— must state courts follow in protect-

ng and preserving the right to jury trial in

those civil matters which are guaranteed a

jury a by virtue of the Fourteenth Amend-

ment

There is a profound disagreement, wast |

_ fluctuation among the several states wit

t to the circumstances when a state ap-

pela ate court may set aside and/or overturn

indings of facts by juries or trial judges in

those cases which have a federally guaranteed

right to a jury trial.

The instant case is a high water mark in ap-

a disregard of fact findings by the fact

ders. It is an appropriate case for this court

to begin a definition of what is the true mean-

ing of a trial by i, under the 14th and 7th

amendments. In defining the true import and

efficacy of a jury verdict in cases which have

a federally guaranteed right to a ory trial,

what are the minimal standards? This Court

il

INDEX (Cont.)

Page

must establish the minimal federal standards

by which the constitutionally guaranteed right

to jury trial requires state courts to maintain

the division between the functions of judge and

jury.

ee, os esssessiidiatinsiiicguegnbeanenietiicieaninacaiitiaiaieiiniainii 12

Appendix A—Opinion, Vaughn v. Searle, 75 Or.

wl I A GG GG EE Al

Appendix B—Order Denying Respondent’s Peti-

—— for Rehearing, August 6, 1975 —......... All

Appendix C—Order Denying Respondent’s Second

Pepetition for Rehearing, Hentember 4, 1975 _..Al12

A dix D—State Court Revision and Reversal

“— Jury Factual Determinations Occur Fre-

uently Using Inconsistent and Vacillating

endands scsi adetcatdeshacdaiatademaciaendsscesdnimeinoaiaciaamniaae Al13

Appendix E—Importance of Jury Trials to Fram-

. of the Constitution and ‘Bill of Rights -..A20

TABLE OF CASES

iii

P

Cases -

Apodaca Vv. Oregon, 406 U.S. 404... sé

Armstrong v. Manzo, 380 U.S. 545 (1965) 9

Baldwin vy. Hale, 68 U.S, 223 (1864). —isés@ds

—_ Theatres, Inc. v. Westover, 359 U.S.

IR RE AMEE Da EE Do aaa

Covey Vv. Town of Sommers, 351 U.S. 141 (1956) 9

Dunean V. Louisiana, 391 U.S. at 156 -~ -

Ex Parte Young, 209 U.S. 123 (1908) _..... 9

Goldberg v. Kelly, 397 U.S. 254 (1970) ....._ 9

Goss v. Lopez, — U.S. —, 95 S. Ct. 729 (1975) 9

Grannis v. Ordean, 234 U.S. 385 (1914) _._ 9

Lambert v. People of the State of California,

355 U.S. 225 (1957, mod. and reh. den. 355

U.S. 987 [1958]) slishdiséidliis Sa oe —

Magenau, Administrator v. Aetna Freight Lines,

* |) & Se bs 8

McEwen Vv. Ortho Pharmaceutical, 99 Or. Adv.

Sh. 2357, 528 P.2d 522 (1974) .... ss tsC*SS

Mullane vy. Central Hanover Trust Co., 339 U.S.

CI ecccieecerensnine Hi at aD SIN adh 9

Parsons Vv. Bedford, 3 Pet. 4838... 9

Turner Vv. Wade, 254 U.S. 64 (1920) ... s«@d

Vaughn v. G. D. Searle & Co., 75 Or. Adv. Sh.

2265, 586 P.2d 1247 (1975) 5

iv

OTHER AUTHORITIES

Page

Texts

Washington, George, 11 The Writings of George

Washington 254-9 .........-.------------------------------- 10

Statutes

U. S. Constitution, Amendment VII -__..........--- 3

U. S. Constitution, Amendment XIV, §1 ---.. :

6 USC. § 1) ee

In the Supreme Cowt

of the United States

OCTOBER TERM, 1975

es

ANITA LEE VAUGHN,

Petitioner,

v.

G. D. SEARLE & COMPANY,

a corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OREGON

Petitioner prays for a writ of certiorari to review

the judgment of the Supreme Court of the State of

Oregon filed June 26, 1975, and its orders denying

the first and second motions for rehearing filed Au-

gust 6, and September 4, 1975.

OPINION BELOW

A copy of the opinion of the Supreme Court of

Oregon June 26, 1975, is attached as Appendix A,

infra, A-1. It is reported at 75 Or. Adv. Sh. 2265, —

Or. —, 536 P.2d 1247 (1975). Copies of the orders

2

denying rehearing are attached as Appendices B & C,

infra, A 11 and A 12, respectively.

JURISDICTION

Jurisdiction of this Court is invoked under 28

U.S.C. § 1257(3).

QUESTION PRESENTED FOR REVIEW

A civil jury case was appropriately plead, proved

and submitted to a jury on five separate and distinct

independent and unrelated factual grounds, any one

of which would sustain a verdict for plaintiff. The

jury returned a general verdict for plaintiff. The jury

was not asked to detail the specific grounds for its

verdict. Defendant then appealed to the Oregon Su-

preme Court. The latter court reversed because it be-

lieved there was insufficient factual support to sub-

mit one of the five independent grounds to the jury.

Despite the presence of four additional and independ-

ent bases for submitting the case to the jury, as well

as a recent Oregon decision substantially on all fours

with the instant case, the court directed the trial court

to enter a directed verdict for defendant as to the en-

tire case, thus prohibiting and precluding a new trial.

Even though plaintiff timely and appropriately

raised the point, in two petitions for rehearing, that

this ruling was tantamount to a deprivation of a trial

by jury and of due process and equa! protection, under

both Federal and State Constitutions, the state Su-

preme Court refused to alter its ruling, or to consider

the four remaining independent grounds.

CONSTITUTIONAL PROVISIONS INVOLVED

I. U. S. Constitution, Amendment VII.

“Trial by jury in civil cases. In Suits at com-

mon law, where the value in controversy shall ex-

ceed twenty dollars, the right of trial by jury

shall be preserved, and no fact tried by a jury,

shall be otherwise re-examined in any Court of

the United States, than according to the rules of

the common law.”

II. U. S. Constitution, Amendment XIV. Section I.

Bs . - No State shall make or enforce any law

which shall abridge the privileges or immunities

of citizens of the United States; or shall any

State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to any

person within its jurisdiction the equal protection

of the laws.”

CONCISE STATEMENT OF THE CASE

Plaintiff developed partial blindness in both eyes,

left sided motor weakness, intellectual dysfunction,

and the loss of 20 points of her I.Q. following a stroke,

as a direct result of her consumption of defendant’s

birth control pill.

It was established that defendant failed to ade-

quately warn any of the following of the latent dan-

4

gers in its pill, and in fact assured them the product

was safe, though defendant knew the true facts were

otherwise:

(a) Dr. N., who originally prescribed the pill for

plaintiff, 21 months before her stroke;

(b) Dr. M., who switched plaintiff from the 21-

day to the 28-day pill (which is the same

product, except for the addition of seven pla-

cebos) four months prior to her stroke;

(c) any of the doctors or other personnel at the

Planned Parenthood Association, where

plaintiff periodically received refills of her

prescription ; ;

(d) Dr. C., who saw plaintiff on two occasions,

two and four weeks prior to her stroke, and

after she began to manifest early warning

signals of stroke;

(e) Dr. H., who saw plaintiff ten days before her

stroke, and after she had many more such

symptoms; and

(f) plaintiff herself.

All the above relied on defendant’s assurances,

either directly or—in plaintiff's case—indirectly. As

a result, plaintiff continued to take the pill for 21

months until her stroke. The jury returned a general

verdict for plaintiff and the trial court entered judg-

ment thereon.

5

On appeal the Oregon Supreme Court' expressly

approved and readopted a decision it had made six

months earlier, which recognized that a case of this

kind could be appropriately submitted to the jury

where it was shown that plaintiff’s injuries were

caused by a drug product and that the manufacturer

did not give a proper warning to either the treating

or prescribing doctors. The court did not disagree that

all these factors had been shown in the case at bar. In

no way did the court modify or overrule its earlier de-

cision, or change any of the elements of the claim.

Nevertheless, inexplicably, the court held that since

(it felt) plaintiff did not sufficiently detail all her

prestroke symptoms to the two treating doctors (C &

H), therefore and per set, she could not recover.

Plaintiff promptly and appropriately raised in two

motions for rehearing the claim that the Court’s hold-

ing violated the federally guaranteed right to jury trial

by depriving plaintiff of the right to have questions of

fact determined by the jury. Nevertheless, the Oregon

Supreme Court declined to consider the fact that had

defendant warned either of the two prescribing doc-

tors, the personnel and doctors at the Family Planning

Center, or the plaintiff herself, plaintiff would not

have been exposed to defendant’s product in the first

instance. All indicated they relied heavily on defend-

ant’s blandishments.

' Vaughn Vv. G. D. Searle & Co., 75 Adv. Sh. 2265, — Or.

—, 536 P.2d 1247, 1248 (1975), citing McEwen v. Ortho

Pharmaceutical, 99 Adv. Sh. 2357, 2362-2367, — Or. —, 528

P.2d 522 (1974).

6

STAGE IN PROCEEDINGS WHEN THE FEDERAL QUESTION

SOUGHT TO BE REVIEWED WAS RAISED

Within days of the ruling by the Oregon Supreme

Court, petitioner raised the federal question of depriv-

ation of a jury trial and of due process under the 7th

and 14th Amendments, by means of two petitions for

rehearing. It could not have been raised earlier since

the violation of constitutional rights did not occur

until the Oregon Supreme Court had acted to deprive

plaintiff of the jury verdict which she had obtained.

Existing Oregon law gave petitioner a clear claim to be

tried by a jury; however, the court’s process of review

deprived plaintiff of that claim and totally erased the

jury verdict. It also forever barred petitioner’s right

to a jury trial.

DIRECT AND CONCISE ARGUMENT

{A) Reasons for allowance of the writ.

This case raises a critical and substantial federal

question. Namely, what minimal standards must state

courts follow in protecting and preserving the right to

jury trial in those civil cases which are guaranteed a

jury trial by virtue of the Fourteenth Amendment.

There is a profound disagreement, disparity and

fluctuation among the several states with respect to

the circumstances when an appellate court may set

aside and/or overturn findings of facts by juries or

trial judges. This Court must establish the minimal

federal standards by which the constitutionally guar-

7

anteed right to jury trial requires state courts to

maintain the division between the functions of judge

and jury.

The instant case is a high water mark in appellate

disregard of fact findings by the fact finders. It is an

appropriate case for this court to begin a definition of

what is the true meaning of a trial by jury in state civil

matters under the 14th and 7th amendments. Is it

merely the naked right to present a case to a jury but

with reserved unbridled power to ignore the jury’s de-

termination later? Was its inclusion in the Constitu-

tion only a grandiloquent gesture meaning little in the

trial of civil matters in state courts?

(B) Concise argument.

There is scarcely a subject about which there is

more strident disagreement and greater fluctuation

and/or disparity between the states (and often intra

state) than the question:

When can a state appellate court set aside, re-

verse, overturn, and/or ignore fact determina-

tions by juries or other fact finders where the

court is not changing legal standards but is exer-

cising review in a manner which destroys the

jury’s function by ignoring the constitutionally

mandated division of functions between judge

and jury?

This Court has recognized that a fundamental and

inherent part of due process under the 14th Amend-

8

ment is the right to a jury trial in an appropriate

case.*

Still, a mere theoretical, academic or empty right

means nothing.

The myriad of aivergent, often inconsistent, stand-

ards which have been and are being applied in the sev-

eral states with respect to the circumstances when

jury verdict factual determinations may be over-

turned is astonishing. There is massive confusion as

to what the federally guaranteed right to jury trial

requires by way of dividing the functions of judge and

jury at the trial level and in the process of judicial re-

view within a state court system. Some representative

illustrations appear in Appendix D, infra, A 13. They

cover the entire spectrum.

Acutely needed is the demarcation by this Court of

minimal constitutional standards dividing the func-

tion of judge and judge and the minimal constitution-

al standards restraining state appellate courts from

invading the rights of parties to a trial by jury.

Petitioner’s case is a flagrant example of appellate

obliteration of the federally guaranteed right to a

jury trial.

From a practical point of view, it would have been

far better and less expensive if petitioner had been

denied a jury trial at the outset. Oregon case law gave

2 Duncan V. Louisiana, 391 U.S. at 156; Beacon Theatres,

Inc. V. Westover, 359 U.S. 500; Magenau, Administrator V.

Aetna Freight Lines, Inc., 360 U.S. 273; cf. Apodaca V. Ore-

gon, 406 U.S. 404.

9

plaintiff a clearly defined cause of action. Plaintiff’s

proofs established each and every element of that

cause of action. The jury found that plaintiff’s evi-

dence proved that cause of action. But, in the end, the

Oregon Supreme Court deprived plaintiff of the right

to have the facts determined by the jury by an arbi-

trary and de novo review of the facts, thus second

guessing the jury. Secondly, though she was given a

five-week trial in the trial court, four of the five in-

dependent factual issues (see pp. 3-5, supra) the jury

resolved—any one of which per se was sufficient un-

der Oregon law to have sustained the verdict—were

totally ignored by the Oregon Supreme Court in reach-

ing its decision. Practically speaking, the result is the

same as no trial. The end result deprived plaintiff of

the constitutional right to a jury trial without remand

for a new trial.

By whatever name, such derogation of a jury trial

challenges constitutional principles long regarded as

sacrosanct, and constitutes a denial of right of effec-

tive access to the court, right to be heard on the mer-

its, right to notice and opportunity for hearing, right

to confront and cross examine adverse witnesses—all

of which are denials of procedural due process.*

3 Goss Vv. Lopez, — U.S. —, 95 S. Ct. 729 (1975); Covey

Vv. Town of Somers, 351 U.S. 141, 146 (1956); Muilane v.

Central Hanover Trust Co., 339 U.S. 306, 313 (1950) ; Gold-

berg V. Kelly, 397 U.S. 254-269 (1970); Lambert v. People

of the State of California, 355 U.S. 225, 228 (1957), mod.

and reh. den. 355 U.S. 987 (1958); Ex Parte Young, 209

U.S. 128, 147-8 (1908); Turner v. Wade, 254 U.S. 64, 67

eae AL mgr ~ tog .y iT! b gy 545, 550 (1965);

rannis V. dean, SS. , 094 (1914): B im V.

Hale, 68 U.S. 223, 233 (1864). ' ft eee S

10

In 1830 Justice Story wrote (Parsons v. Bedford,

3 Pet. 433, 446):

: “The trial by jury is justly dear to the Amer-

ican people. It has always been an object of deep

interest and solicitude, and every encroachment

upon it has been watched with great jealousy...

One of the strongest objections originally taken

against the constitution of the United States, was

the want of an express provision securing the

right of trial by jury in civil cases. As soon as the

constitution was adopted, this right was secured

by the seventh amendment of the constitution pro-

posed by congress; and which received an assent

of the people so general, as to establish its im-

portance as a fundamental guarantee of the rights

and liberties of the people.’’*

- George Washington, in writing to the Marquis

deLafayette (while the debate between the Federal-

ists and anti-Federalists raged) on the day the consti-

tution was ratified by the sixth state (Maryland)

said (11 The Writings of George Washington 254-9) :

“(T)here was not a member of the conven-

tion, I believe, who had the least objection to

what is contended for by the advocates for a Bill

of Rights and Trial by Jury”.

The unmistakable intent of the framers of the 7th

and 14th Amendments to foster and preserve a trial

by jury in civil cases should not be shunted aside in

favor of some sort of amorphous reweighing of the

facts by the court. The standards which are used in

the several states (and sometimes within the same

4See Appendix E for further discussion.

11

state) are in hopeless disagreement and disarray. In

some there is virtually no appellate retesting of facts.

In others—including Oregon, in this case—the court

does so an alarming percentage of the time.

There is an urgent and pressing need for this

Court to establish the true meaning of right to a jury

trial.

A jury trial is—in the end—only an exercise in

futility if it is subsequently given no real vitality.

12

CONCLUSION

-_ The Fourteenth Amendment, we submit, quite

plainly guarantees some minimal federal standards for

a right to jury trial in cases tried in state courts under

state law.

This case flagrantly violates those standards.

It is of national significance that this case be re-

viewed to:

(a) spell out those standards;

(b) minimize the mass confusion which presently

exists; and

(c) end a pattern which has developed and is devel-

oping, where state courts have often drained

jury trials of any true meaning or signifi-

cance.

Respectfully submitted,

ROGER TILBURY

BRUCE J. ROTHMAN

JOHN J. FLYNN

GABRIEL E. BERG

ROBERT P. JOHNSON

Attorneys for Petitioner

Al

APPENDIX A

ANITA LEE VAUGHN,

Respondent,

v.

G. D. SEARLE & COMPANY,

a corporation,

Appellant.

75 Or Adv 2265, — Or —, 536 P2d 1247

Supreme Court of Oregon,

In Banc.

Argued and Submitted May 8, 1975.

Decided June 26, 1975.

HOWELL, Justice.

This is a negligence action in which the plaintiff,

Anita Vaughn, seeks damages from the defendant,

G. D. Searle & Company, a manufacturer of oral con-

traceptives, for injuries suffered as the result of a

cerebral vascular accident (stroke) allegedly caused

by the ingestion of the defendant’s drug, Ovulen.

Plaintiff alleges that the defendant was negligent in

failing to provide adequate warnings to the medical

profession concerning the dangerous propensities of

its product. The jury returned a verdict for the plain-

tiff, and the defendant appeals.

Defendant raises numerous assignments of error.

However, we need only consider the questions raised

by defendant’s first assignment—that the trial court

A2

erred in denying defendant’s motion for a directed

verdict. This motion was based in part upon the con-

tention that plaintiff failed to present any evidence

with regard to the element of causation.

[1] In McEwen v. Ortho Pharmaceutical, 99

Adv. Sh. 2357, 528 P.2d 522 (1974), this court dis-

cussed in detail the duty of a drug manufacturer to

provide timely and adequate warnings to the medical

profession with regard to the dangerous propensities

which the manufacturer knows, or has reason to know,

are inherent in the use of its drug. It would serve no

useful purpose to repeat that discussion in the instant

case. Suffice it to say that the manufacturer’s duty to

warn extends to both the prescribing and treating

physician, and the defendant manufacturer is directly

liable to the patient for damages suffered as a result

of the breach of such duty. A duty exists even though,

as in the instant case, the danger threatens only a sta-

tistically small percentage of the users of the drug.

McEwen v. Ortho Pharmaceutical, supra at 2362-

2367, 528 P.2d 522.

With regard to causation, we noted in McEwen:

“The final element of plaintiff’s cause of ac-

tion is proof that each defendant’s failure to

warn was, in fact, a substantial factor in produc-

ing the damage complained of. Within the broad

question of causation two sub-issues are implicit.

First, we must determine whether each defend-

ant’s negligence could be found to be a substantial

cause of plaintiff’s ingestion of the oral contra-

ceptive manufactured by that defendant. If so, we

oe

4» 2 —-

A3

must then decide whether plaintiff’s ingestion of

that drug could be found to be a substantial fac-

tor in producing her * * * injuries.” 99 Or. Adv.

Sh. at 2385, 528 P.2d at 538.

We consider the evidence in the light most favor-

able to plaintiff.'

When plaintiff commenced taking defendant’s oral

contraceptives on February 4, 1969, she was 22 years

old and in good health. On that date she went to the

clinic of the Planned Parenthood Association of Ore-

gon, Inc., in Portland and requested oral contracep-

tives. Dr. Clarice Nordlum examined plaintiff and,

finding no contraindications? in plaintiff’s medical

history or her examination, prescribed Ovulen-21.

On July 23, 1970, plaintiff returned to the

Planned Parenthood Clinic for a follow-up prescrip-

tion. She reported no complaints with regard to the

pill, and Dr. John McCall continued her on defend-

ant’s drug.®

a considering the propriety of the court’s denial of the

motion,

“the plaintiff is entitled to the benefit of every rea-

sonable inference which may be drawn from the evi-

dence; such inferences may be drawn from defendant’s

as well as plaintiff's evidence. * * * Moreover, all evi-

dence must be interpreted in the light most favorable

to the plaintiff, and it is beyond our power to weigh or

evaluate conflicting evidence. * * *.” McEwen v. Ortho

Pharmaceutical, 99 Or. Adv. Sh. 2357, 2358-59, 528

P.2d 522 (1974).

2A “contraindication” is “any special symptom or cir-

cumstance that renders the use of a remedy or the carrying

out of a procedure inadvisable.” Stedman’s Medical Diction-

ary 283 (3rd Unabr. Lawyers ed. 1972).

3 Actually, plaintiff's prescription was changed from

Ovulen-21 to Ovulen-28. They are the same except that Ovu-

len-28 contains seven placebos so that the patient takes a pill

every day.

A4

Plaintiff testified that in August or early Septem-

ber, 1970, she experienced some dizziness and nausea.

A few weeks later she had a similar occurrence. In

September or October, 1970, plaintiff noticed a dark-

ening of the periphery around her eyes. Prior to this

time plaintiff had never been afflicted with either vis-

ual problems or unexplained dizziness and nausea.

On October 12, 1970, plaintiff saw Dr. Corrine

Chamberlin for a physical examination. She com-

plained of heart palpitations, although she had had no

symptoms of heart palpitations for the past month

and showed no such symptoms during the examina-

tion. Plaintiff reported to Dr. Chamberlin that she

was on the pill and that she was very happy with it.

Dr. Chamberlin examined the plaintiff but did not do

a neurological examination because “there was no

headache, no eye symptoms, nothing to indicate any

further examination.” Based on the medical history

which the plaintiff gave the doctor and the doctor’s

examination, the doctor felt that the plaintiff was in

good health. She felt that plaintiff’s heart palpita-

tions were functional, meaning that there was nothing

organically abnormal about plaintiff’s heart.

Plaintiff had another attack of dizziness and nau-

sea, and on October 30, 1970, returned to Dr. Cham-

berlin. She complained to the doctor that she had been

vomiting and dizzy for two days and had had some

cold sweats, but was feeling better at the time of the

examination. The doctor conducted another physical

examination, including a check of blood pressure,

pulse and temperature, and an examination of her

~>

A5

eyes, heart, lungs and abdomen. The examination was

negative, and the doctor diagnosed plaintiff’s ailment

as a viral syndrome. The doctor testified that, at that

time, such syndromes were “almost epidemic in char-

acter” and dizziness and nausea were symptoms. The

doctor did not conduct a neurological examination or

check the blood vessels in plaintiff’s eyes. The doctor

gave the plaintiff medication to relieve her dizziness,

nausea and constipation.

On the evening of November 6, 1970, while plain-

tiff was at home, she again became dizzy and nause-

ated. She went to the emergency room of Gresham

Hospital, where she was examined by Dr. Robert Ha-

kala. She complained of dizziness and nausea, saying

she “felt rocky on her feet.” She stated that she had

had a similar episode the prior week. The doctor’s ex-

amination included a check of plaintiff’s blood pres-

sure and pulse; an examination of her head, neck and

chest; and a neurological examination. The examina-

tion failed to reveal any abnormalities. He diagnosed

the source of her dizziness and nausea as labrynthitis,

an inflammation of the inner ear mechanism. He gave

plaintiff a sedative and advised her to return to the

emergency room or to consult her family doctor if the

symptoms persisted.

On November 16, 1970, plaintiff became very

dizzy and nauseated. Her left arm and leg “gave out”

and she was unable to support herself with her left

side. Plaintiff was taken to the clinic of Dr. Richard

Harris, who diagnosed her condition as a stroke. He

felt that her condition might have been caused by use

A6

of defendant’s oral contraceptives and immediately

withdrew the plaintiff from Ovulen.

At trial, plaintiff contended that the warning

which defendant gave to plaintiff’s prescribing and

treating physicians was insufficient, because it failed

to adequately appraise those doctors that the defend-

ant’s oral contraceptive could cause cerebral vascular

accidents in the user. Plaintiff also presented evidence

that she did, in fact, suffer a cerebral vascular acci-

dent and that it was the result of her ingestion of

Ovulen.

[2] However, as previously mentioned, the pri-

mary question in this case is one of causation, that is,

whether the defendant’s failure to warn was a sub-

stantial cause of plaintiff’s injuries. The relevant in-

quiry on that issue is (1) whether plaintiff had pre-

monitory symptoms of a stroke prior to or at the time

she saw her treating physicians, and (2) whether

such symptoms were made known to those treating

doctors. Both parties agree that none of plaintiff’s

prescribing or treating physicians were negligent in

the treatment of plaintiff.

[3] We find that plaintiff has offered no evi-

dence, either direct or indirect, that she ever advised

her treating physicians of symptoms which would

have alerted them to the possibility of a stroke. With-

4Had the physicians been negligent in failing to detect

symptoms of a stroke, which a non-negligent physician would

have detected, such negligence would not relieve the drug

manufacturer from liability for its failure to warn. McEwen

v. Ortho Pharmaceutical, supra n. 1 at 2384, note 30.

_ -

Aen es eres ©

A7

out such knowledge there was no way the physician

could have related any warning (that there is a cause-

and-effect relationship between the ingestion of the

drug and a stroke) to plaintiff’s particular case. Thus,

there was no evidence that even a properly warned

physician would have treated plaintiff differently or

removed her from defendant’s oral contraceptive prior

to her stroke.

There was evidence that the premonitory symp-

toms of a stroke are greatly elevated blood pressure,

severe headaches, weakness or numbness of an arm or

leg, spots before the eyes, nausea if associated with a

headache, and dizziness if associated with a head-

ache.* While the plaintiff testified that she had had

severe headaches, spots before her eyes, nausea and

dizziness prior to the time she saw Dr. Hakala, the

last treating physician before her stroke, there is no

evidence that she related these symptoms, other than

dizziness and nausea, to the doctors.®

5 The symptoms of cerebral vascular accident were also

reported as “dizziness, vomiting, headache, scintillating sco-

tomata” [“vague blindness in both eyes; * * * flickering

lights surrounding it in both eyes”]; “headache, visual

symptoms, or other signs of transient cerebro-vascular in-

sufficiency” (92 Radiology 231, 238 (Feb. 1969)); “young

women suffering from stroke while using the oral contra-

ceptives almost always have some warning, usually signifi-

cant headache, prior to the onset of the paretic event.” Sec-

ond Report on Oral Contraceptives, Advisory Comm. on Ob-

se) and Gynecology, Food and Drug Adm. (Aug. 1,

6 As noted above, Dr. Chamberlin testified that viral syn-

dromes, accompanied by dizziness and nausea, were “almost

epidemic in character” at the time she saw plaintiff.

A8

Dr. Chamberlin, the first treating physician plain-

tiff saw after taking the pill and after first noticing

the nausea and dizziness, testified that plaintiff com-

plained of only heart palpitations at her exam on Oc-

tober 12. After an examination the doctor found her

blood pressure and temperature to be normal and that

she had no eye symptoms and had no headaches.

Dr. Chamberlin testified that she saw plaintiff

again 18 days later. She stated that plaintiff com-

plained of some vomiting and dizziness and cold

sweats, but did not complain of headaches. Again her

blood pressure and pulse were normal. An examina-

tion of her eyes showed negative results.

Dr. Hakala examined plaintiff on November 6,

1970. He said she complained of dizziness and nausea

and felt “rocky on her feet.” An examination showed

a normal blood pressure and pulse. Apparently no

mention was made of headaches, and plaintiff did not

testify that she reported headaches to Dr. Hakala—

only dizziness and nausea.

Even if we accept only nausea or dizziness if asso-

ciated with headache as a sufficient symptom, it is

clear from the testimony of Drs. Chamberlin and Ha-

kala that at no time did plaintiff report any premoni-

tory symptoms of a cerebral vascular accident. On the

contrary, Dr. Chamberlin testified:

“Q. And at either time you saw the patient,

she did not have any premonitory symptoms of

CVA [cerebral vascular accident], did she?

“A. No, she did not.”

A9

Again, if we accept nausea or dizziness if accom-

panied by headache as premonitory symptoms of a

cerebral vascular accident sufficient to alert a physi-

cian, the evidence fails from the plaintiff’s own testi-

mony. Assuming a question of fact could have been

developed if plaintiff contrary to the testimony of the

physicians, had testified that she reported severe head-

aches to the physicians, plaintiff did not so testify.

She stated:

“Q. Now, did you report this [headaches] to

Dr. Chamberlin?

“A. I don’t remember if I did. I can’t deter-

ae °° SS

Plaintiff supported the testimony of Dr. Chamber-

lin and admitted that she had complained of heart

palpitations the first time she saw Dr. Chamberlin.

She also stated, “She advised me to come in if I had

any more heart palpitations or blurriness.” There was

no direct testimony from plaintiff that she complained

to Dr. Chamberlin of blurriness of vision, and Dr.

Chamberlin stated that plaintiff had no eye symptoms.

In summary, plaintiff’s doctors had no informa-

tion which would lead them to believe that plaintiff

was about to suffer a cerebral vascular accident.’

Thus, even if the doctors had been adequately ap-

praised of the cause-and-effect relationship between

cerebral vascular accident and the ingestion of de-

fendant’s drug Ovulen, they would have had no way

of relating that information to plaintiff. -

We conclude that there was no evidence that any

Al0

failure to warn plaintiff’s physicians was a substan-

tial factor in producing plaintiff’s injuries and that

defendant’s motion for a directed verdict should have

been granted.

Reversed.

7 The evidence in the instant case, when contrasted with

that presented in McEwen, clearly shows the inadequacy of

plaintiff’s case. In McEwen this court upheld a verdict for

plaintiff against the manufacturers of oral contraceptives

for failure to warn treating physicians that the ingestion of

defendants’ drugs might cause eye injury. There, plaintiff

reported to her treating physicians that she was losing the

sight in her right eye. Had her doctors been warned of the

causal connection between her eye symptoms and the drug,

they could have taken her off the drug and begun corrective

measures.

All

APPENDIX B

STATE OF OREGON

SUPREME COURT

August 6, 1975

Mr. Roger Tilbury

Attorney at Law

1123 S. W. Yamhill

Portland, Oregon 97205

Re: Vaughn v. Searle

Dear Mr. Tilbury:

The Supreme Court today denied respondent’s peti-

tion for rehearing in the above-entitled case.

Very truly yours,

Adell Johnson

ADELL JOHNSON

Assistant Administrator

Al12

APPENDIX C

STATE OF OREGON

SUPREME COURT

September 4, 1975

Mr. Roger Tilbury

1123 S. W. Yamhill

Portland, Oregon 97205

Re: Vaughn v. G. D. Searle & Company

Dear Mr. Tilbury:

The Supreme Court yesterday denied respondent’s

second petition for rehearing and respondent’s objec-

tion to the cost bill filed in the above-entitled matter,

and also yesterday allowed respondent’s motion to

stay the mandate until the United States Supreme

Court has acted on a petition for a writ of certiorari.

Very truly yours,

J. David Gernant

J. DAVID GERNANT

Legal Counsel

Oe eS EE TS a ew

A13

APPENDIX D

STATE COURT REVISION AND REVERSAL OF

JURY FACTUAL DETERMINATIONS OCCUR

FREQUENTLY USING INCONSISTENT

& VACILLATING STANDARDS

There are a myriad of widely divergent, fluctuat-

ing and often inconsistent standards which have been

and are being applied in the several states with respect

to the circumstances when jury verdict factual de-

termination may be overturned, set aside, and even

ignored. Many of these standards are highly subjec-

tive, and are frequently applied at a time and place

far removed from the live witnesses by an appellate

court which has had no opportunity to view them. In

the end, it often means that the view of 3-9 appellate

judges as to the facts is simply substituted for the

equally honest and sincere view of the 12 men or

women who acted as jurors—and the time and ener-

gies of the latter were wasted. At times such appellate

decisions have sapped the jury verdict of any true

meaning—such as the case at bar.

In the following representative examples the state

appellate court recently set aside and held for naught

jury factual determinations because the appellate

court felt the jury verdict was:

(a) palpably against weight of evidence;'

1 Flournoy Vv. Brown, 200 Miss. 171, 26 So. 2d 351, 353;

Vaughn V. Bollis, Miss., 73 So. 2d 160, 163; Baker’s Adm’r v.

Frederick, Ky, 248 SW2d 921, 924.

Al4

(b) against the clear or strong preponderance

of evidence ;?

(c) against overwhelming preponderance or

great weight of evidence ;*

(d) absurd;‘

(e) manifestly against preponderance of evi-

dence ;°

(f) against manifest weight of the evidence ;°

(g) clearly mistaken ;’

(h) against very great preponderance of evi-

dence ;°

(i) | so against preponderance of evidence as to

be clearly wrong ;°

(j) manifestly erroneous ;'°

2 Daniels v. Yanyar, R. I., 94 A.2d 598, 595. City of Mon-

ticello v. LeCrone, 414 Ill. 550, 111 NE.2d 338, 341; De-

Frates Vv. Rowland, 341 Ill. App. 69, 93 N.E.2d 153.

3 Rapant v. Ogsbury, 279 App. Div. 298, 109 N.Y.S.2d

737, 739; Ohlen v. Hagar, Tex. Civ. App., 212 S.W.2d 253,

256; Holmes v. Am. Gen. Ins. Co., Tex. Civ. App., 263 S.W.2d

615, 617; Doyle Vacuum Cleaner Corp. V. F. J. Siller & Co.,

Mich. App., 223 N.W.2d 86, 91, (1974).

4 Rapant v. Ogsbury, supra.

5 DeF rates v. Rowland, 341 Ill. App. 69, 93 N.E.2d 158.

6 Radokovich v. Goldblatt Bros., 342 Ill. App. 200, 95

N.E.2d 528; Rehnbloom v. City of Berwyn, 329 Ill. App. 327,

68 N.E.2d 479; Phillips v. City of Chicago, 332 Ill. App. 443,

15 N.E.2d 403; Ranson v. Wilson, 335 Ill. App. 7, 80 N.E.2d

381, 384.

7 Flournoy Vv. Brown, 200 Miss. 171, 26 So. 2d 351.

8 Rapant v. Ogsbury, supra.

° Quinn v. Wilkerson, Tex. Civ. App., 195 S.W.2d 399,

403.

10 McLean Vv. McCollum, Tex. Civ. App., 209 S.W.2d 959,

960.

Al5

(k) against such a preponderance of evidence

that it is clearly wrong;"'

(1) against great weight and preponderance of

evidence ;‘*

(m) against weight of the evidence;'*

(n) against clear and unmistakable contrary

evidence ;'*

(0) against weight of credible evidence;'*

(p) clearly against great weight of the evi-

dence ;'*

(q) manifestly erroneous;'’

(r) clearly excessive or inadequate ;'®

'! Texas Emp. Ins. Assn. V. Foreman, Tex. Civ. App., 262

S.W.2d 248, 251

'2 Texas Emp. Ins. Assn. V. Foreman, supra.

13 Luongo Vv. City of Syracuse, 285 App. Div. 1015, 139-

N.Y.S.2d 30, 31; Gardner v. Schulman, 272 App. Div. 888,

71 N.Y.S.2d 284.

14 McCormick Transp Co. Vv. Philadelphia Transp Co., 161

Pa. Super. 533, 55 A.2d 771.

'S Strone V. Hudson Transit Lines, 278 App. Div. 815, 104

N.Y.S.2d 521; Guinan v. Smith, 278 App. Div. 1006, 105

N.Y.S.2d €33; Treshman v. Republican Pub Co, 270 App.

Div. 505, ~0 N.Y.S.2d 544, 546; Piptone v. Standard Fruit &

SS Co., 270 App. Div. 844, 60 N.Y.S.2d 465, 466; rearg. den.

271 App. Div. 786, 66 N.Y.S.2d 158.

16 Wolf v. Providence Wash Ins Co. of Providence, R. L.,

333 Mich. 333, 53 N.W.2d 475, 480.

17 Mitchell v. Shreveport Laundries, La. App., 61 So. 2d

539, app. trans. 221 La. 686, 60 So. 2d 86.

__'® Burge V. Windolph, La. App., 79 So. 2d 912, 914; San-

difer V. pson, Mo., 280 S.W. 2d 412, 415; Triplett v.

Beeler, Mo., 268 S.W. 2d 814, 819; Hooper v. Conrad, Mo.,

260 S.W. 2d 496, 501.

Al6

(s) grossly excessive or gave less than full

compensation ;'°

(t) based on the testimony of one or more wit-

nesses whose testimony was extremely im-

probable or incredible ;?°

(u) the result of mistake, passion or partial-

ity ;?"

(v) | ashock to reason and justice ;**

(w) without basis in fact;?*

(x) wholly unacceptable to reasonable minds ;**

(y) inherently improbable ;?°

(z) flagrantly against the evidence ;*°

(aa) so clearly unsupported as to indicate mis-

apprehension ;*’

(bb) clearly wrong ;*°

19 Hallada Vv. Great Northern Ry, Minn., 69 N.W.2d 673,

687, cert. den. 350 U.S. 874.

20 Practico Vv. Rhodes, 17 N.J. 328, 111 A.2d 399, 402;

State v. Petrolia, 21 N.J. 453, 459, 122 A.2d 639, 643; Tay-

lor v. Vanderveer, 19 N.J.L. 22, 30.

21 Hager Vv. Weber, 7 N.J. 201, 210, 81 A.2d 155, 161;

Wheeler v. Yellow Cab of Orlando, Fla., 66 So. 2d 501, 503.

. 22 or v. Joseph Newman, Inc., 3 N.J. 503, 513, 71 A.2d

121, 126.

. _— Hartpence Vv. Grouleff, 15 N.J. 545, 548, 105 A.2d 514,

1

24 Kircher v. Atchison, T & SF Ry Co., 32 Cal. 2d 176,

195 P.2d 427, 433.

25 Schouten Vv. Crawford, Cal. App. 257 P.2d 88, 91.

2¢ Hollis v. Fisk, Ky, 242 S.W.2d 1012, 1013.

27 In re Appropriation of Easement for Highway Pur-

poses, 90 Ohio App. 471, 107 N.E.2d 387, 389.

- 28 Borcherding V. Eklund, 156 Neb. 196, 55 N.W.2d 643,

9.

Al7

(cc) based on testimony which was not worthy

of belief ;?*

(dd) against great preponderance of evidence ;°°

(ee) wrong as to one of five factual grounds.

(Whereupon, the appellate court directed

the entry of a directed verdict as to the

entire case) ;*'

(ff) decided by whims and caprice of jury;**

(gg) suggestive of gross misapprehension to ex-

tent which shocks understanding and

moral sense of appellate court;?*

(hh) in conflict with the justice of the case;>¢

(ii) manifestly wrong;**

(jj) against such a preponderance of evidence

that the reviewing court felt the jury’s

conclusion was clearly wrong;*°

(kk) clearly against weight of the evidence ;*’

29 Price Vv. Mackner, Minn., 58 N.W.2d 260, 262.

30 Homewood Dairy Products Co. v. Robinson, 254 Ala.

197, 48 So. 2d 28, 32; Sorrell v. Lindsey, 247 Ala. 630, 25

So. 2d 725, 726.

3! Vaughn V. Searle, 75 Or. Adv. 2265, 536 P.2d 1247.

32 Sorg V. Royal, Fla., 41 So. 2d 317.

33 Thomson V. Fouts, 203 Ga. 522, 47 S.E.2d 571, 573.

34 Quinn Vv. Wilkerson, Tex. Civ. App., 195 S.W. 2d 399,

a McLean Vv. McCollum, Tex. Civ. App., 209 S.W.2d 959,

36 Texas Emp. Ins. Assn V. Foreman, Tex. Civ. App., 262

S.W.2d 248.

37 Kinsfather v. Grueneberg, App. Div., 365 N.Y.S.2d

903, 907 (1975).

Al18

(ll) against the great weight of evidence;**

(mm) manifestly and palpably contrary to the

evidence viewed as a whole;**

(nn) suggestive of passion, partiality, mistake,

or lack of due consideration ;*°

(oo) contrary to manifest weight of evidence ;*'

(pp) opposite conclusion is clearly evident ;*?

(qq) shockingly inadequate ;*°

(rr) clearly wrong and unreasonable ;**

(ss) so small it plainly indicates that award

was product of misguidance ;*°

(tt) shocking to conscience of reviewing

court ;*°

(uuj misled by some mistaken view of merits of

the case ;*’

38 Jones V. Morgan, 58 Mich. App. 455, 228 N.W.2d 419,

422 (1975).

39 Vanderweyst V. Langford, Minn., 228 N.W.2d 271, 272

1975).

' Te Abdulla v. Pittsburgh & Weirton Bus Co., W. Va., 213

S.E.2d 810, 823 (1975).

41 Scrimager Vv. Cabot Corp., 23 Ill. App. 3rd 193, 318

N.E.2d 521, 523 (1974).

42 Scrimager V. Cabot Corp., supra. at 525.

43 Ford v. Long, Mo. App. 514 S.W.2d 378, 380 (1974).

44 Brewer Vv. Case, 192 Neb. 538, 222 N.W.2d 823, 827

1974).

45 Dette v. Loiselle’s Estate, Vt., 326 A.2d 155, 156

(1974).

46 Badgett v. McDonald, Ala. Civ. App., 304 So. 2d 228,

230 (1974).

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(vv) unjustified upon any reasonable view of

the evidence ;*° ‘

(ww) a clearly evident incorrect result ;*°

(xx) shocking to its sense of justice;*° and

(yy) wholly unreasonable under circumstances

of the case.*'

The extent to which state appellate courts have

vacillated with respect to the issue when jury factual

determinations may be retested or reweighted on ap-

peal, even within the confines of a single state, is dis-

cussed in 12 Rutgers L.R. 482, Appellate Review of

Facts in New Jersey, Jury and Non-Jury Cases.

48 Vermont Terminal Corp v. Crane, 132 Vt. 589, 326

A.2d 158, 160 (1974);

49 Lewis V. Hull House Assn, 25 Ill. App. 3d 617, 323

N.E.2d 600, 607 (1975).

50 Simmons V. Mullen, 231 Pa. Super. 199, 331 A.2d 892,

901 (1974); City of Houston v. Jean, Tex. Civ. App., 517

S.W.2d 596, 602 (1974).

a peat — v. Collins, 23 Ariz. App. 54, 530 P.2d 900, 904

A20

APPENDIX E

IMPORTANCE OF JURY TRIALS TO FRAMERS

OF CONSTITUTION AND BILL OF RIGHTS

That Justice Story was correct (see p. 9, supra)

with respect to the importance of jury trials to those

who drafted the Constitution and Bill of Rights is

shown by the following sources, among many, many

others:

Thos. Paine (1777), Foner, The Complete Works

of Thomas Paine 273-77; Thomas Jefferson, Let-

ter to Madison (December 20, 1787), 12 The Pa-

pers of Thos. Jefferson 438-42; & 1st Inaugural

Address; Patrick Henry, Speech on the Stamp

Act, Virginia Convention (March 23, 1775) and

also at the Virginia Ratifying Convention of the

Constitution, where he called the jury trial the

“best privilege” of citizens and “dear to human

nature” (3 The Debates in the Several State Con-

ventions on the Adoption of the Constitution 21-

663 (1788) (During the debates Patrick Henry

kept coming back to the Bill of Rights issue—

and the trial by jury—virtualy every day. One of

his speeches lasted seven hours) ; Roger Sherman,

Letters of a Countryman, 1787, Essays on the

Constitution of the United States, 218-221; John

Dickinson, Letters of Fabius, 1788, Pamphlets on

the Constitution of the United States, 181-187

(“Trial by Jury is our birthright; and tempted to

his own ruin, by some seducing spirit, must be the

man, who in opposition to the genius of United

A21

America, shall dare to attempt its subversion”) ;

John Jay, Address to the People of New York on

the Constitution, 1788, Pamphlets on the Consti-

tution of the United States, 67-85; James Madi-

son, 5 The Writings of James Madison, 319

(1789) (“it is my sincere opinion that the Consti-

tution ought to be revised, and that the first Con-

gress meeting under it ought to prepare and rec-

ommend to the States for ratification, the most

satisfactory provisions for all essential rights,

particularly the rights of Conscience in the fullest

latitude, the freedom of the press, trials by jury

...); also 1 Annals of Congress, June 8, 1789,

where Madison said:

“Trial by jury cannot be considered as a

natural right, but a right resulting from a

social compact which regulates the action of

the community, but is as essential to secure

the liberty of the people as any one of the

pre-existent rights of nature.”

James Wilson, at the Pennsylvania Ratifying

Convention, said that trial by jury “has excellenc-

es that entitle it to a superiority over any other

mode, in cases to which it is applicable.” (De-

bates, December 11, 1787)

Sherman, Dickinson, Madison and Wilson

were all signers at the Constitutional Convention.

Jefferson was in Paris, but wrote many letters in

support of the jury trial from there. (12 The Pa-

pers of Thos. Jefferson, 438-42, 570-72; 14 The

Papers of Thos. Jefferson 649-51).

A22

Late in the Constitutional Convention itself,

Colonel George Mason moved that a Bill of Rights

be adopted because “it would give a great quiet to

the people. Eldridge Gerry concurred and moved

that a Committee be appointed to prepare such

Bill. However, the motion did not pass, because it

was felt the State Declarations of Rights would

suffice, and that the legislatures could be “safely

trusted.” (1 Schwartz, The Bill of Rights 435-8).

Spurred by the attacks of Richard Henry Lee,

Eldridge Gerry and Luther Martin, among many

others, because of the absence of such explicit Bill

of Rights, the constitution passed by only a nar-

row margin in many states. In Massachusetts the

vote was 187-168; in New Hampshire, 57-46; in

Virginia, 89 to 79; in New York, 30-27, and in

Rhode Island, 34-32. Prior to the ratification of

the constitution by the 13th state (Rhode Island)

the Bill of Rights had been ratified by eight other

states. Nine days later Rhode Island became the

9th state to ratify the Bill of Rights, thus insur-

ing its passage. (The World Almanac 720, 724

[1975]).

Even prior to the federal constitution, the

right of trial by jury was already secured in sev-

eral states: New Jersey (Concessions and Agree-

ments of West New Jersey, 1677, Ch. XXII);

Fundamental Constitution of Carolina Art. III

(1669) ; Georgia Constitution, Art. LXI (1777)

(“freedom of the press and trial by jury to re-

main inviolate forever”); Maryland Declaration

A23

of Rights, Art. III (1776); Massachusetts Decla-

ration of Rights, XII (1780); New Hampshire

Bul of Rights XX (“sacred . . . procedure”)

(1783); New Jersey Constitution XXII (“The

inestimable right of trial by jury shall remain

confirmed as a part of the law of this Colony,

without repeal, forever.”) (1776); New York

Charter of Libertyes and Privileges (1683) ; New

York Constitution Art. XLI (1777) (“remain in-

violate forever”) ; North Carolina Declaration of

Rights XIV (1776); Northwest Ordinance Jour-

nals of Congress (1786-7) (“That the inhabitants

of such districts shall always be entitled to the

benefits of . . . the trial by Jury’).

See also Blackstone, Commentaries, Bk. 3,

379; Alexis de Tocqueville, 1 Democracy in Amer-

tca (2nd ed.) quoted in Joiner, Civil Justice &

The Jury (109-111 [1962]); Magna Charta

(“No freeman shall be taken or imprisoned or

disseized or outlawed or banished or anyways de-

stroyed, nor will the King pass upon him or com-

mit him to prison, unless by the judgment of his

peers or the law of the land”) (1215); Declara-

tion of Independence (one of the indictments of

King George III was “For depriving us in many

cases, of the benefits of trial by jury”); North

Carolina Constitution, Art. I, § 25 (“in all con-

troversies at law respecting property, the ancient

mode of trial by jury is one of the best securities

of the rights of the people and shall remain sacred

and inviolable”); Declaration of Rights and

A24

Grievances VII (1765) (“That trial by jury is

the inherent and invaluable right of every British

subject in these colonies”) ; Delaware Declaration

of Rights, § 18 (1776) (“That trial by jury of

facts where they arise is one of the greatest secur-

ities of the lives, liberties and estates of the peo-

ple”) ; Pamphlets on the Constitution of the Unit-

ed States, 219-257 (Address on the Proposed Plan

of a Federal Government, 1788, by Alexander

Contee Hanson) (‘The institution of the trial by

jury has been sanctified by the experience of ages.

It has been recognized by the constitution of every

state in the union. It is deemed the birthright of

Americans, and it is deemed that liberty cannot

subsist without it.’”’)

The right of trial by jury seems to be virtual-

ly the only spot in the constitutions and statutes

of the several states which is identified as “‘sac-

red” and/or “inviolate”.