Schenebeck v. Sterling Drug, Inc.

Citation291 F. Supp. 368
Decision Date22 October 1968
Docket NumberNo. LR-66-C-248.,LR-66-C-248.
PartiesMrs. Jewell SCHENEBECK and Russell Schenebeck, Plaintiffs, v. STERLING DRUG, INC., Defendant.
CourtU.S. District Court — Eastern District of Arkansas

Henry Woods, of McMath, Leatherman, Woods & Youngdahl, Little Rock, Ark., Thomas C. Hullverson, of Hullverson, Richardson & Hullverson, St. Louis, Mo., for plaintiffs.

Alston Jennings, of Wright, Lindsey & Jennings, Little Rock, Ark., for defendant.

MEMORANDUM OPINION

HENLEY, Chief Judge.

This products liability case, in which federal diversity jurisdiction is established, was tried to Court and jury during the week of September 9 of the current year. At the close of plaintiffs' case and again at the close of all of the testimony defendant moved for a directed verdict. To the extent that the motions were based on certain grounds they were overruled; to the extent that they were based on other grounds ruling was reserved.

The case was submitted to the jury which after deliberating several hours returned a verdict of $40,000 in favor of the plaintiff, Mrs. Jewell Schenebeck, and a verdict of $10,000 in favor of plaintiff, Russell Schenebeck, the husband of the plaintiff first named. The defendant has now filed a timely motion for judgment notwithstanding the verdict; there is no alternative prayer for a new trial.

The undisputed evidence showed that Mrs. Schenebeck sustained permanent eye damage amounting to essential blindness as a result of her use of the drug chloroquine, manufactured and distributed by defendant, Sterling Drug, Inc., under the trade name "Aralen." Mrs. Schenebeck took this drug pursuant to the prescription of her physician, Dr. Ralph Patterson of Hot Springs, Arkansas, from early 1958 to late 1963 as medication for rheumatoid arthritis. It was the position of the plaintiffs that Mrs. Schenebeck's eye damage was proximately caused by negligence on the part of the defendant in failing properly to test the drug to discover its properties and in failing properly to warn the medical profession that chloroquine was capable of producing serious and permanent damage to the eyes of certain users.

In the course of the trial defendant contended earnestly that it was free from negligence, that no negligence of which defendant may have been guilty was a proximate cause of the condition of which Mrs. Schenebeck complains, that Mrs. Schenebeck was guilty of contributory negligence, that she voluntarily assumed the risk of injury from the drug, and that plaintiffs' cause of action was barred by the Arkansas three year statute of limitations, Ark.Stats. § 37-206.

The motion now before the Court is based upon the claims that under the undisputed evidence in the case plaintiffs' cause of action accrued prior to December 9, 1963, and was consequently barred when the suit was filed on December 9, 1966, and that as a matter of law the damage to Mrs. Schenebeck's eyes was not proximately caused by any failure, negligent or otherwise, of the defendant to test or to give warnings about the side effects to be apprehended from the use of Aralen. Plaintiffs resist the motion, and both sides have filed memorandum briefs supporting their respective positions.

It is elementary that in passing upon a motion for judgment notwithstanding the verdict of a jury the Court is required to view the case in the light most favorable to the party obtaining the verdict, and that such party is entitled to the benefit of all favorable inferences which reasonable men might draw from the evidence.

As far as the issues of negligence, contributory negligence, and assumption of risk are concerned, the Court is satisfied that the jury was justified in finding that the defendant was negligent as contended by plaintiffs, that she did not assume the risk of injury from use of the drug, and that her negligence, if any, in continuing to use the product after she experienced visual difficulty in the late winter or early spring of 1963 was of less degree than the negligence of the defendant.1 Defendant's contentions based on limitations and on the claim that there was no proximate causal connection between its alleged negligence and Mrs. Schenebeck's eye condition require some discussion.

Background facts are not in dispute. As indicated the defendant is a manufacturer and distributor of prescription drugs, including Aralen. Chloroquine, the active ingredient in Aralen, was developed during World War II as a substitute for quinine, the domestic supply of which had been affected adversely by Japanese military operations in Asia. Some years after World War II it was discovered that Aralen in larger doses and ingested over relatively long periods of time is helpful in the treatment of rheumatoid arthritis and other collagen diseases.

Chloroquine, hereinafter called simply Aralen, like all other drugs useful in the treatment of human diseases is capable of producing adverse side effects on certain users. Most of those side effects, including some visual disturbances, are minor and are also reversible, that is to say, the side effects will disappear when use of the drug is discontinued.

Unfortunately, Aralen can also produce in certain users a disease or abnormal condition of the eye referred to as chloroquine retinopathy, which means a disease or abnormal condition of the retina caused by chloroquine. Chloroquine retinopathy is a side effect which is neither minor nor reversible. It is serious, permanent, and sometimes progressive even after use of the drug is discontinued. When chloroquine retinopathy affects the eyes of a patient, it is symptomized by progressive loss of vision and may ultimately produce total blindness; no corrective treatment for the condition is yet known.

In its later stages the disease can be detected by an ordinary examination of the back of the eye by means of an ophthalmoscope, but in its earlier stages there are few objective manifestations, although visual field tests to determine the existence and location of "blind spots" are or may be helpful in making earlier diagnoses.

In early 1958 the plaintiff, Mrs. Schenebeck, was diagnosed by Dr. Patterson as suffering from rheumatoid arthritis. In earlier years she had been examined more than once at the Mayo Clinic in Rochester, Minnesota, in connection with other complaints.

Dr. Patterson prescribed Aralen, to be taken at the rate of one 250 mg. capsule per day. Mrs. Schenebeck used the drug in accordance with the prescription and without any apparent ill effects throughout 1958, 1959, 1960, 1961, and 1962. There is no question that Aralen is beneficial to the victims of rheumatoid arthritis, and Mrs. Schenebeck concedes that it was beneficial to her arthritic condition.

In early 1963 Mrs. Schenebeck began to notice a "blurring" of her vision and she began to experience difficulty in reading. She consulted Dr. Schwarz, a Little Rock opthalmologist, who found no pathology in her eyes and who found that her vision, as corrected by glasses theretofore prescribed for her, was essentially normal.

Mrs. Schenebeck continued to use Aralen after seeing Dr. Schwarz, and her eye condition continued to get worse. In May 1963 she consulted her physician in Hot Springs who suggested to her that she discontinue the drug until she had consulted an opthalmologist. Her Hot Springs physician, Dr. Patterson, did not know of her visit to Dr. Schwarz. While Dr. Patterson suggested that she not use the drug until she had seen an opthalmologist he did not warn her that she might be in danger of serious visual impairment.

Mrs. Schenebeck was not able to get an appointment with an opthalmologist until late July 1963 when she saw Dr. Cook of Little Rock, a concededly well qualified eye specialist. Dr. Cook checked her visual acuity; he also examined by ophthalmoscope the posterior portions of both eyes, and checked her eyes for glaucoma. He did not make a visual field examination. He found her eyes free from pathology and did not change her glasses.

Mrs. Schenebeck testified positively that she told Dr. Cook that she was taking Aralen and asked him if there was any causal connection between the use of the drug and the eye symptoms. She testified further that he told her that Aralen was "about the same as aspirin," and that he saw no harm in her continued use of the drug. Dr. Cook's office records do not reflect that her medication was discussed, and Dr. Cook has no personal recollection of her visit to his office; hence, he was unable either to confirm or to deny her statements as to what was said about Aralen. The jury was justified in believing her testimony.

Following her visit to Dr. Cook, Mrs. Schenebeck, without reporting to Dr. Patterson, resumed the use of Aralen. In October 1963 Mrs. Schenebeck, at the suggestion of a neighbor, made an appointment with and was seen by Dr. John Watkins, another Little Rock ophthalmologist. She told him that she was using Aralen, and he did not advise her to discontinue its use. He made essentially the same examination and tests as had been made by Dr. Cook, and he, like Dr. Cook, found no pathology. He did change Mrs. Schenebeck's glasses.

By November 1963 Mrs. Schenebeck was so seriously concerned about her eye condition that she wrote about it to the Mayo Clinic and inquired whether Aralen could be the causative agent. In her letter she did not refer to the fact that she had been examined by three eye specialists who had found nothing wrong with her eyes. The Mayo Clinic informed Mrs. Schenebeck that Aralen might well be the causative agent and suggested that she discontinue its use until consultation with her own physician or with her ophthalmologist.

Upon receiving that advice from Mayo Clinic Mrs. Schenebeck visited Dr. Patterson again, taking the Mayo letter with her. She told Dr. Patterson that she had not been taking Aralen for a month. He told her that he would take up the matter with Mayo; he did not advise her that he considered...

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11 cases
  • Borel v. Fibreboard Paper Products Corporation
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 13 Maggio 1973
    ...2 Cir. 1967, 378 F.2d 832; Tinnerholm v. Parke-Davis & Co., S.D.N.Y.1968, 285 F.Supp. 432, aff'd, 411 F.2d 48; Schenebeck v. Sterling Drug, Inc., D.D.Ark.1968, 291 F.Supp. 368. 26 The trial court stated, in Now, turning our attention to the matter of the defenses of the defendants in connec......
  • Warrington v. Charles Pfizer & Co.
    • United States
    • California Court of Appeals Court of Appeals
    • 2 Luglio 1969
    ...(5th Cir. 1962), 304 F.2d 234, 240--241; Hungerford v. United States (9th Cir. 1962), 307 F.2d 99, 102.)3 Schenebeck v. Sterling Drug Inc., 291 F.Supp. 368 (USDC, E.D., Ark. W.D.), is another recent decision on the applicability of the discovery rule. Schenebeck on the facts is on all fours......
  • Schenebeck v. Sterling Drug, Inc.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 29 Aprile 1970
    ...Sterling moved for judgment n. o. v. The trial court denied the motion for reasons stated in a memorandum opinion reported in 291 F.Supp. 368 (E.D.Ark.1968). Sterling appeals from the judgment and urges two contentions upon (1) Defendant's failure to timely warn that Aralen could produce bl......
  • Martin v. Arthur
    • United States
    • Arkansas Supreme Court
    • 11 Novembre 1999
    ...of the full extent of the injury was not required. The Eighth Circuit then looked to one of its previous cases, Schenebeck v. Sterling Drug Inc., 291 F.Supp. 368 (E.D.Ark. 1968), aff'd 423 F.2d 919 (8th Cir.1970), for guidance on the subject. In Schenebeck, the plaintiff had taken arthritis......
  • Request a trial to view additional results
1 books & journal articles
  • Comparative Negligence
    • United States
    • Colorado Bar Association Colorado Lawyer No. 1-10, August 1972
    • Invalid date
    ...Manual; McConville v. State Farm Mut. Auto. Ins. Co., 15 Wis.2d 374, 113 N.W.2d 14. But see, Schenebeck v. Sterling Drug, Inc., 291 F.Supp. 368;J. Paul Smith Co. v. Tipton, 237 Ark. 486, 374 S.W.2d 176; Henry Grady Hotel Corp. v. Watts, 119 Ga.App. 279, 167 S.E.2d 205. 5 McGraw v. Wooley (C......

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