DiRosa

Both sides appeal a $1,050,000 judgment in this jury tried products liability action arising from the plaintiff’s ingestion over a period of time of capsules of a substance called L-Tryptophan (LT) that was contaminated. Plaintiff developed an illness called eosinophilia myalgia syndrome (EMS), symptoms of which included very severe muscle pain and progressive skin discoloration, change in texture and rash. The jury returned a $1.8 million verdict reduced by a 41.5 percent comparative fault finding. It denied punitive damages.

The appeal of corporate defendants Showa Denko K.K., LT manufacturer (SDK), and Showa Denko America, Inc., LT importer (SDA), asserts that the trial court committed prejudicial error (a) in allowing the jury to determine whether the defendants’ sale of LT complied with the federal Food, Drug and Cosmetic Act ( 21 U.S.C.A. § 301 et seq.; Act), and (b) in refusing to give their proffered instruction as to DiRosa’s constructive notice of the recall of LT by the federal Food and Drug Administration (FDA).

Plaintiff Elizabeth DiRosa contends on appeal (a) the evidence did not support the jury’s 41.5 percent comparative fault finding, (b) the presiding…