McCue v. Norwich Pharmacal Company
| Decision Date | 20 January 1972 |
| Docket Number | No. 71-1324.,71-1324. |
| Citation | 453 F.2d 1033 |
| Parties | Ellen M. McCUE, Plaintiff-Appellee, v. NORWICH PHARMACAL COMPANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Stephen J. Spielman, Manchester, N. H., with whom Devine, Millimet, McDonough, Stahl & Branch, Manchester, N. H., was on brief, for appellant.
Stanley M. Brown, Manchester, N. H., with whom McLane, Carleton, Graf, Greene & Brown, Manchester, N. H., was on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE, Circuit Judge, and WYZANSKI, Senior District Judge.*
This is a diversity action for personal injury, or illness, caused by long-term use of an ethical drug, Furadantin, manufactured by the defendant Norwich Pharmacal Company. After the jury found for the plaintiff, defendant appealed from the denial of its motion for a directed verdict (waived during oral argument) and the refusal of a requested instruction to the jury.
Our first question would have been what record is before us, the defendant having designated relatively little and the plaintiff having initially cross-designated nothing at all. We need not, however, decide what vitality is left in our decisions such as Chernack v. Radlo, 1 Cir., 1964, 331 F.2d 170, after the counter-designation provision of F.R.A.P. 30(b), because at oral argument the parties stipulated, and the court acceded, that reference might be made to the entire record.1
Although accepting the now voluminous record, unreproduced, the court will assume that any statement in the charge as to what the evidence showed, or warranted finding, was correct, since neither party excepted thereto, other than the defendant's single exception. The facts, although defendant claims them to be in certain respects unusual, are relatively simple. Plaintiff from time to time consulted a general practitioner, Dr. Elizabeth Wilbur. Suffering on one occasion from an apparent episode of a chronic urinary infection, and Dr. Wilbur being absent, she attempted to consult a Dr. Fardleman, a specialist. He, also, was away and plaintiff was referred to a locum tenens, Dr. Cavanagh. He gave her a prescription for Furadantin, marked as refillable only twice. Subsequently, plaintiff again consulted Dr. Wilbur. Plaintiff testified that Dr. Wilbur renewed the prescription for Furadantin open-endedly. Although Dr. Wilbur made no note of doing this, and later failed to recall it, the fact that the druggist's records indicate an open-ended prescription by Dr. Wilbur at a reduced dosage, with no contradictory evidence, seems to us to make this a case where plaintiff's testimony that Dr. Wilbur knew she was prescribing Furadantin, thus corroborated, must be accepted. Dehydrating Process Co. v. A. O. Smith Corp., 1 Cir., 1961, 292 F.2d 653, 656 n. 6, cert. denied 368 U.S. 931, 82 S.Ct. 368, 7 L.Ed.2d 194; Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365, 368-377.
The jury could find that for some time prior to the date of Dr. Wilbur's renewing the prescription defendant knew that a possible side effect of long term use of Furadantin was pulmonary fibrosis, but did not give an adequate warning of this danger to the medical profession. Nor did this information reach Dr. Wilbur in any other manner. The defendant did recommend that patients continuing to take its drug should be kept under general observation, and it could be found that Dr. Wilbur's observations were not continuous. However, this recommendation was not expressed in terms of pulmonary fibrosis. The doctor did keep check on plaintiff's urinary difficulties and found them under control. When she discovered plaintiff's incipient bronchial symptoms she did not connect them with the drug, until too late.
We will assume in defendant's favor that the evidence would compel a finding that, due to her approval of Dr. Fardleman, Dr. Wilbur entirely forgot the incident, and during the next two years was unaware that plaintiff was taking the drug on her own, using Dr. Wilbur's open-ended prescription. In this posture defendant contended that the jury could find that defendant was warranted in not anticipating...
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Wooderson v. Ortho Pharmaceutical Corp.
...i.e., a causal relationship between use of the product and resulting injury, has not been definitely established. McCue v. Norwich Pharmacal Co. (C.A. 1, 1972), 453 F.2d 1033; Hamilton v. Hardy, [37 Colo.App. 375, 549 P.2d 1099 (1976) ]. Thus, where scientific or medical evidence exists ten......
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...should be held liable even if it is found that the doctor was negligent in prescribing the drug. (See McCue v. Norwich Pharmacal Company (1st Cir.1972) 453 F.2d 1033, 1035; Sterling Drug, Inc. v. Cornish (8th Cir.1966) 370 F.2d 82, 85; Hamilton v. Hardy (1976) 37 Colo.App. 375, 549 P.2d 109......
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McEwen v. Ortho Pharmaceutical Corp.
...the better reasoned decisions which have considered the point, usually under the rubric of proximate cause. E.g., McCue v. Norwich Pharmacal Co., 453 F.2d 1033 (1st Cir. 1972); Sterling Drug, Inc. v. Cornish, 370 F.2d 82 (8th Cir. 1966); Schenebeck v. Sterling Drug, Inc. 423 F.2d 919 (8th C......
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Humes v. Clinton
...449 U.S. 1112, 101 S.Ct. 921, 66 L.Ed.2d 840 (1981); Hoffman v. Sterling Drug, Inc., 485 F.2d 132 (3d Cir.1973); McCue v. Norwich Pharmacal Company, 453 F.2d 1033 (1st Cir.1972). Cf. Davis v. Wyeth Laboratories, Inc., 399 F.2d 121, 129-30 (9th Cir.1968). This rule is based upon the theory t......