Oppenheimer v. Sterling Drug, Inc.
| Decision Date | 29 December 1964 |
| Citation | 7 Ohio App.2d 103,219 N.E.2d 54 |
| Parties | , 36 O.O.2d 216 OPPENHEIMER, Appellant, v. STERLING DRUG, INC., Appellee. |
| Court | Ohio Court of Appeals |
Edward F. Lynch and Feibel, Feibel & Golden, Columbus, for appellant.
Lane, Huggard & Alton, Columbus, for appellee.
This appeal is from a judgment and final order of the Court of Common Pleas of Franklin County on questions of law. The plaintiff in the trial court, Faye Oppenheimer, is the appellant here, and the defendant, Sterling Drug, Inc., is the appellee. Reference is to plaintiff and defendant as they were in the trial court.
Plaintiff consulted Dr. James McCreary concerning a skin disorder on December 4, 1957. On or about May 19, 1958, plaintiff was subjected to a biopsy, following which the laboratory reported 'skin changes compatible with but not diagnostic of lupus erythematosus.' Upon or shortly after receiving the laboratory report, Dr. McCreary prescribed 'Chloroquine, 250 milligrams twice daily.' Chloroquine is a prescription medicine prepared and distributed by the defendant, under the trade name of Aralen, through its subsidiary Winthrop Laboratories.
Under date of May 23, 1958, the Eastmoor Pharmacy filled a prescription, numbered 79742, for fifty Aralen tablets, for the plaintiff, as directed by Dr. McCreary. It appears from the prescription form and testimony of the pharmacist that the direction to supply the Aralen tablets had been called over the telephone by the doctor. The legend on the prescription indicates that the prescription was refillable for six months from the date of the original prescription. The prescription was refilled periodically over a period of more than two years, according to the records of the pharmacy. The prescription was filled the last time on October 18, 1960. Although the prescription was refilled about twenty times, and far beyond the refillable limit of six months, the records of the pharmacy and the testimony of the pharmacist do not show any renewal of the order of Dr. McCreary, either written or by telephone communication.
On October 24, 1960, plaintiff visited Dr. William Havener, an ophthalmologist, after having consulted with three other such specialists, and expressed to him the fear that she would soon be blind. Plaintiff revealed to the doctor the fact of her skin disorder, lupus discoid erythematosus, and that she had been treated for the disorder, cortisal steroids and Chloroquine having been prescribed. Dr. Havener recommended the discontinuance of the use of Chloroquine. As of February 10, 1961, Dr. Havener found the plaintiff to have a marked loss in her field of vision and diagnosed the cause as chloroquine retinopathy.
Briefly stated, this is the background for the filing of the second amended petition of the plaintiff in the trial court in which she alleges that the product of the defendant, Aralen or Chloroquine Phosphate, was a harmful product, although distributed as an effective safe treatment for chronic discoid lupus erythematosus, and was the cause of the damage to and loss of vision in her eyes. She further alleges that she relied on the statements of the defendant, purchased the drug at a local drug store, and used the drug as prescribed. Further, plaintiff alleges that by reason of the negligence of the defendant in selling the harmful product, in failing to discover the defects in the preparation, and in failing to warn the plaintiff of its harmful effects, it is the cause of her loss of vision and permanent damage to her eyes. It is claimed also that defendant breached its express warranty and that there was an implied warranty of fitness for use which ran with the product from the defendant to the consumer, plaintiff in the instant case.
Defendant filed its second amended answer to plaintiff's second amended petition entering a general denial, claiming contributory negligence on the part of the plaintiff and assumption of risk, as well as special defenses not involved in this discussion. The issues thus made up, the case was tried to a jury, but at the close of all the evidence the trial court sustained defendant's motion for a directed verdict and ordered the jury to return its verdict favorable to the defendant. This was done, and judgment entered accordingly. A motion for a new trial was overruled. This appeal was taken from that judgment and final order.
There are four errors assigned as the basis upon which this appeal is predicated. Those indicated as three and four are perfunctory, dealing with errors manifest on the face of the record and the overruling of plaintiff's motion for a new trial. The errors delineated one and two deal with the nub of plaintiff's contention, which is that the court erred in taking the case from the jury at the close of all the evidence and in directing a verdict for the defendant.
The rule in Ohio concerning the propriety of a directed verdict is well set. It is clearly stated in 52 Ohio Jurisprudence 2d 618, Section 121, as follows:
'* * * Upon a motion to direct a verdict, (if) the trial court, after construing the evidence most strongly in favor of the person against whom the motion is directed, finds that upon any essential issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, it should direct a verdict against him, and not allow the jury to speculate upon the question; but if reasonable minds may reasonably reach different conclusions, or draw different inferences, upon any qeustions of fact, the motion should be denied and the case submitted to the jury. * * *'
The essential issues as determined from the pleadings and the evidence are essentially as follows:
1. The negligence of the defendant, and
2. The contributory negligence of the plaintiff.
3. The possible intervening causes of the injury to the plaintiff, as well as
4. A breach of an express warranty, or
5. A possible implied warranty moving from defendant to plaintiff.
It should be noted, in considering the matter of the negligence of the defendant, that the drug in question is basically a good medicine and in no sense a dangerous drug. The standard to be applied to the conduct of the defendant is, therefore, that of ordinary care. Aralen was developed as a treatment for malaria and became, and still is, an effective and harmless treatment for malaria when used as directed. However, after its introduction, other uses were found. These clinical uses of the preparation Aralen, or Chloroquine Phosphate, began with doctors who reported the results of its use in the medical literature of the United States and England beginning in 1950-51. In 1955, the defendant published a pamphlet entitled 'Discoid Lupus Erythematosus' following fairly extended clinical use of Aralen by dermatologists and other specialists who reported to the defendant. The dosage and technical requirements were cleared with the federal Food and Drug Administration. The first pamphlet (plaintiff's exhibit No. 3), 1955, did not contain any warnings as to possible side effects.
In 1957, the defendant applied to the Food and Drug Administration for a new authority for the use of Aralen. All the then known side effects were reported to that governmental department. Additional side effects, particularly visual disturbances and corneal deposits reported in the medical literature, were relayed to the Food and Drug Administration. The first piece of literature, put out by defendant, which included reference to 'visual disturbances' as a side effect appeared in July 1959. The piece of literature, circulated to doctors and the drug trade generally, contained a section entitled 'Side Effects,' one of which listed effects being 'visual disturbances.'
Among the exhibits, entered in evidence in the case before us, are several copies of Physicians' Desk Reference circulated among doctors and intended to provide ready information concerning drugs, their composition, use, dosage, and side effects. Plaintiff's exhibit No. 5 is the 1958 Edition. At page 834, 'Aralen Phosphate' is listed. The article reads in part as follows:
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