423 F.2d 919 (8th Cir. 1970), 19576, Schenebeck v. Sterling Drug, Inc.

Docket Nº:19576.
Citation:423 F.2d 919
Party Name:Mrs. Jewell SCHENEBECK and Russell Schenebeck, Appellees, v. STERLING DRUG, INC., Appellant.
Case Date:April 01, 1970
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 919

423 F.2d 919 (8th Cir. 1970)

Mrs. Jewell SCHENEBECK and Russell Schenebeck, Appellees,

v.

STERLING DRUG, INC., Appellant.

No. 19576.

United States Court of Appeals, Eighth Circuit.

April 1, 1970

Rehearing Denied April 29, 1970.

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Alston Jennings, Wright, Lindsey & Jennings, Little Rock, Ark., for appellant and filed briefs.

Henry Woods, McMath, Leatherman, Woods & Youngdahl, Little Rock, Ark., for appellees, C. A. Walls, Jr., Lonoke, Ark., and Thomas C. Hullverson, Hullverson, Richardson & Hullverson, St. Louis, Mo., were with him on the brief.

Before VOGEL, BLACKMUN and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

Plaintiff Jewell Schenebeck sustained blindness from taking the prescription drug Aralen over a five-year period. She and her husband brought an action for damages against the manufacturer, Sterling Drug, Inc. (Sterling). An Arkansas district court jury awarded her $40,000.00, and her husband an additional $10,000.00 for consequential loss, based on defendant's negligence. Following the verdict, 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 us:

(1) Defendant's failure to timely warn that Aralen could produce blindness was of no legal consequence and not a proximate cause of the harm sustained by Mrs. Schenebeck (hereinafter plaintiff), since her attending physician otherwise timely acquired equivalent information concerning the drug from an independent source, and

(2) Plaintiff sustained harm from Aralen prior to December 9, 1963, and her failure to bring action within three years thereafter as required by the applicable Arkansas statute of limitations bars her action.

Arkansas substantive law controls this products liability diversity case. On our review of the record, we hold that the trial court properly submitted the issues in question to the jury.

Aralen constitutes Sterling's brand name for the ethical drug chloroquine phosphate, usually referred to as chloroquine, a synthetic anti-malarial drug that has also proved effective in the treatment of rheumatoid arthritis.

Dr. Ralph Patterson, an internist practicing his specialty in Hot Springs, Arkansas, first prescribed Aralen in 1958 for treatment of Mrs. Schenebeck's chronic rheumatoid arthritis. He initially prescribed the usual does of one 250 milligram tablet to be taken each day. He mailed her a second similar prescription in July of 1962. Both were refillable. He did not personally see her between November, 1961 and May, 1963. The plaintiff took Aralen tablets almost daily until May 7, 1963, when she reported to Dr. Patterson that she had experienced blurring of her vision. Dr. Patterson recommended that she stop taking the drug until she had been checked by a qualified ophthalmologist. Thereafter, Mrs. Schenebeck underwent eye examinations by Dr. Raymond Cook (July 22, 1963) and Dr. John G. Watkins (October 11, 1963), both qualified

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ophthalmologists from Little Rock, Arkansas. Neither doctor discovered any pathology in her eyes. She had also earlier been examined by Dr. W. J. Schwarz, also practicing in Little Rock, who reported negative findings from examinations on October 23, 1962, and on March 5, 1963. Mrs. Schenebeck, however, continued to have difficulties with her vision. On November 16, 1963, she wrote to Dr. G. A. Peters of the Mayo Clinic at Rochester, Minnesota, whom she had consulted in 1958 for her arthritic problem, inquiring whether Aralen could cause her eyes to fail. She complained, 'They are failing more and more all the time until I am half blind. Eye specialist find no disease, no cause. I stayed off the tablet (Aralen) for 3 months with no change.' Dr. Peters referred this letter to another Mayo staff specialist, Dr. John G. Mayne, who wrote in reply:

'If you have been taking Chloroquine (Aralen) constantly over this period it is indeed possible that your visual defect is related to the use of the medication. I would advise that you stop the medication completely until this can be definitely settled. I think you should discuss this with your general doctor and with your eye specialist who can answer this question * * *.'

Mrs. Schenebeck showed this letter to her attending physician, Dr. Patterson. Dr. Patterson thereafter wrote Dr. Mayne on December 6: 'Her vision has not improved and I fear it is permanently impaired. If you have any suggestions concerning her condition, I would appreciate hearing from you.' Dr. Mayne responded that he knew of no effective remedy for retinopathy related to anti-malarials and he recommended that she take no more of this type of medication. Dr. Patterson then wrote the plaintiff advising that she cease using chloroquine. Mrs. Schenebeck has taken no additional chloroquine-type drugs since receiving Dr. Patterson's letter on December 21, 1963. Though Dr. Patterson and Dr. Mayne suspected that Mrs. Schenebeck suffered from chloroquine retinopathy, no actual pathology was discovered in her eyes until September 2, 1964, when she was again examined by Dr. Watkins. The negative pathology findings of the previous October were replaced with observations of fine clumps of pigment in the macula of both eyes. Her vision, which Dr. Watkins characterized as good the prior October, had deteriorated to...

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