INGRAHAM, Circuit Judge:
This products liability suit was originally instituted in the Circuit Court of Rankin County, Mississippi, against appellants Diamond Laboratories, Inc. and its subsidiary, Southwestern Laboratories, Inc. [hereinafter referred to as defendants], for damages sustained by Alman Brothers Farms & Feed Mill, Inc. [plaintiff], and alleged to be the result of the use of defendants' product, an animal vaccine known as "Tissucine". The action was removed to the United States District Court for the Southern District of Mississippi pursuant to 28 U.S.C. § 1441 et seq., and jurisdiction was based on diversity of citizenship.
Defendants' first three specifications of error all relate to the question of sufficiency of the evidence for submission of plaintiff's case to the jury,
Max and Buck Alman operated a farm acquired in 1966, and were engaged in the business of raising hogs. In November and December of 1966, there was an outbreak of hog cholera involving about eleven of the Alman brothers' hogs. One of the expert witnesses at the trial, Dr. Bedell, testified that he visited the farm on May 24, 1967, and found "some sick pigs," but nothing to cause him to suspect hog cholera. On June 24, 1967, plaintiff had on hand several hundred hogs which had been vaccinated with Franklin serum, and on that day, and over the next few weeks, purchased and kept in separate pens 494 hogs which were vaccinated with a shipment of defendants' vaccine. These 494 hogs, as well as the original group, appeared to be healthy. Defendants' vaccine was administered immediately and according to directions to the new hogs as they were brought in. Beginning on July 7, 1967, part of the new group of 494 hogs became ill and eventually 476 of the 494 succumbed. These hogs would begin to show the symptoms of disease within 12 to 16 days after they had been vaccinated with Tissucine. According to plaintiff, none of the other hogs previously on hand and vaccinated with the Franklin serum became ill or died. The disease was diagnosed primarily to be hog cholera. Plaintiff's expert, Dr. Chadwick, testified that the hog cholera was probably caused by defendants' modified live hog cholera vaccine.
SUFFICIENCY OF THE EVIDENCE
Defendants' motions for directed verdict and for judgment notwithstanding a verdict challenged the sufficiency of evidence that "Tissucine" was the proximate cause of the death of plaintiff's hogs. In general, a motion for directed verdict should be granted in two situations: "First, where there is a complete absence of pleading or proof on an issue or issues material to the cause of action or defense. * * * Second, where there are no controverted issues of fact upon which reasonable men could differ." 5 Moore, Federal Practice, ¶ 5002 [1] (2d Ed. 1969). These situations were not present in the instant case. Surely defendants would acknowledge that when their motion for directed verdict was made, reasonable men might have reached different conclusions from the evidence. The standard of review for motions for directed verdict and for judgment notwithstanding a verdict are the same for a trial court and an appellate court. 2B Barron & Holtzoff, Federal Practice and Procedure, § 1074, at p. 375 (Wright Ed. 1961). The evidence and all inferences therefrom must be viewed in the light most favorable to the party against whom the motions are made. Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969); 2B Barron & Holtzoff, supra, § 1075, p. 378. Thus, "the court may not substitute its judgment on a question of fact for that of the jury, nor direct a verdict because the evidence decidedly preponderates for the moving party." 2B Barron & Holtzoff, supra, § 1075, at pp. 375-376. See Butte Cooper & Zinc Company v. Amerman, 157 F.2d 457 (9th Cir. 1946).
It is beyond peradventure to this court that plaintiff presented sufficient evidence to go to the jury. We reject outright defendants' contention that there was a mere scintilla of evidence.
Defendants assert that plaintiff's case was based solely on the testimony of Dr. Chadwick. However, there was ample circumstantial evidence from which liability could have been inferred, and from which a prima facie case could have been established even without Dr. Chadwick's testimony. See, e. g., Grey v. Hayes-Sammons Chemical Co., 310 F.2d 291, 302 (5th Cir. 1962). Indeed, the jury was not bound by the defendants' evidence, nor forced to accept the testimony of their experts. American Cyanamid Co. v. Fields, 204 F.2d 151, 153 (4th Cir. 1953).
Appellants, however, challenged the testimony of Dr. Chadwick, who, on the basis of a detailed hypothetical,
Defendants assert that the hypothetical question submitted to Dr. Chadwick contained assumptions not supported by the evidence and omitted certain material facts. Generally, the form and length of hypothetical questions are within the discretion of the trial judge. Dickerson v. Shephard Warner Elevator Co., 287 F.2d 255, 260 (6th Cir. 1961). "It is for the witness and not the court to determine whether from the facts stated he is able to express a scientific opinion. * * * A hypothetical question need not include all the facts in evidence, nor facts or theories advanced by opposing counsel." Metropolitan Life Insurance Co. v. Armstrong, 85 F.2d 187, 190 (8th Cir. 1936); 32 C.J.S. Evidence § 551(2), at p. 527 (1964). It is normally not required that each hypothetical question should embrace every fact which it might be contended should affect the judgment of an expert witness. Dickerson v. Shephard Warner Elevator Co., supra. The question propounded to Dr. Chadwick fairly presented the plaintiff's theory of the case and was based upon assumptions which were supported by evidence.
Defendants have attempted to detract from this testimony by bringing out that Dr. Chadwick had discussed the legal connotation of the word "probable" with plaintiff's attorney. We find no indication of prejudicial influence, especially in light of Dr. Chadwick's eminent qualifications. He was Executive Officer and Secretary of the State Board of Sanitary Health in Mississippi — in essence, the "State Veterinarian," and as such he was a wholly disinterested and unpaid witness.
Defendants have also tried to establish that the cause of plaintiff's loss was a pre-exposure to a "field virus" prior to the vaccinations. However, the record indicates that plaintiff's hogs became ill 12 to 16 days after the vaccination, and defendants' own witnesses indicated that a pre-exposure would have indicated symptoms within 8 days. Defendants' attempts to blame other disease organisms
Another ground of error asserted by defendants is that the jury was misled by the admission of testimony concerning the highly suspect nature of modified live hog cholera vaccine and the strict regulations governing its sale and usage. Defendants' own counsel actually opened the door to this proof on cross-examination by establishing that Tissucine was on the United States Department of Agriculture's approved list of vaccines. The general standing of modified live cholera vaccines in the veterinary field was admissible to establish that defendants' product could have caused the cholera outbreak. See J. Wigmore, Evidence, § 455 at p. 457 (1940).
We add that defendants are not exonerated because their product met Department of Agriculture standards. A person can be guilty of negligence while acting within the bounds of the law. Cutshall v. State, 191 Miss. 764, 4 So.2d 289 (1941). The court below thus committed no prejudicial error in admitting the evidence about which defendants complain.
II.
PRODUCTS LIABILITY
In our discussion of defendants' defense in the area of products liability, we will first consider the assertion that plaintiff never established a prima facie case for failure to present proof of a defective or unreasonably dangerous product. Secondly, we will consider the question of the adequacy of the warning given by defendants.
Plaintiff's case was submitted to the jury with a charge paraphrasing § 402A of the Restatement of Torts, Second, which provides:
This doctrine of strict liability has apparently been accepted in the State of Mississippi. State Stove Manufacturing Co. v. Hodges, 189 So.2d 113, 118 (Miss.1966). See Howard v. General Motors Corp., 287 F.Supp. 646, 648-649 (N.D.Miss.1968).
Defendants, in their attempt to establish that plaintiff failed to prove a "defective condition", relied principally upon three cases: McNamara v. American Motors Corp., 247 F.2d 445 (5th Cir. 1957); Smith v. General Motors Corp., 227 F.2d 210 (5th Cir. 1955); and Vandercook and Son, Inc. v. Thorpe, 322 F.2d 638 (5th Cir. 1963).
In McNamara, the appellant was alleging that a misfunctioning steering column was causing the transmission to be in low gear when the indicator inside indicated that the car was in reverse. The appellant assumed that the driver, intending to back up, plunged forward into a river and to his death. The court, however, found that:
In other words, his theory was practically beyond belief when viewed in the light of the physical facts. In the instant case, the physical evidence supports plaintiff's case.
In Smith, although the court agreed that the case should not have been submitted to the jury, it explained that:
Here, plaintiff's case does not rest on such tenuous and remote conclusions. Juries are authorized to make reasonable inferences, even if some speculation is required. Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916 (1946); Equitable Life Assur. Society of United States v. Fry, 386 F.2d 239, 248 (5th Cir. 1967).
Finally, in Vandercook, supra, the plaintiff was injured while operating a power driven printing press which malfunctioned. We quote from defendants' brief at page 16 to understand the gist of their argument in the case sub judice:
Nevertheless, Judge John R. Brown, in his dissenting opinion, urged that:
We note with interest that on rehearing the court reversed and remanded on an implied warranty theory. Vandercook and Son, Inc. v. Thorpe, 344 F.2d 930 (5th Cir. 1965). On remand the United States District Court for the Middle District of Florida entered judgment for the employee, Thorpe, and another panel of this court affirmed, finding that the case was properly submitted to the jury.
In light of this history of the Vandercook case, we are well convinced that the evidence in the instant case was properly submitted to the jury, and that there was a rational basis for the jury's inference that defendants' product was defective in some manner.
There apparently is a trend, both in federal courts and in the states, wherein it is no longer absolutely necessary for a plaintiff to prove a specific defect in a product causing him injury. For example, in Greco v. Bucciconi Engineering Co., 283 F.Supp. 978 (W.D.Pa.1967), aff'd, 407 F.2d 87 (3rd Cir. 1969), the plaintiff merely had to demonstrate that a steel piler's mechanical fingers dropped its load and caused him injury. Although other parts of the production line might have contained the causative defects, the piler manufacturer, having failed to establish that his machine did not contain the defective component, was held liable.
Other courts have also specifically rejected the idea that a plaintiff must specify the defect in a product in order to recover. In Davis v. Wyeth Laboratories, Inc., 399 F.2d 121, 128 (9th Cir. 1968), the court stated:
See also Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A.2d 231 (1968); Ford Motor Company v. Cochran, 205 So.2d 551, 553 (Fla.Ct.App.1967).
Defendants assert that even if Tissucine was an inherently dangerous product capable of causing cholera, its benefits far outweighed the risks. In essence, they rely on Comment k to § 402A of the Restatement, which provides:
It is well recognized that to come within this exception an adequate warning and proper instructions must be given to a potential user of the product.
In Davis v. Wyeth Laboratories, Inc., supra, a case in which the manufacturer sold polio vaccine without warning of the statistical risk that one person in a million would contract polio by taking the vaccine, the court held that failure to warn of a known or foreseeable idiosyncratic reaction made the vaccine "unfit" or "unreasonably dangerous" in the § 402A sense. 399 F.2d at pp. 126-130. Thus, the lack of an adequate warning in itself renders a product "defective". 2 Frumer and Friedman, Products Liability, § 16A[4] [e] (1967). See Basko v. Sterling Drug Co., Inc., 416 F.2d 417, 425-426 (2nd Cir. 1969).
In the case at bar, defendants' sole warning was that the product be administered only to "healthy" hogs. There apparently was compliance with this instruction. No attempt was made by defendants to give a complete disclosure of the existence and extent of the risk involved. Such obligation exists whether danger lies to human life or to property. Thibodaux v. McWane Cast Iron Pipe Co., 381 F.2d 491, 494 (5th Cir. 1967).
The judgment of the district court is affirmed.
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