Jacobs v. Dista Products Co., C87-1007-K.

CourtUnited States District Courts. 10th Circuit. District of Wyoming
Citation693 F. Supp. 1029
Docket NumberNo. C87-1007-K.,C87-1007-K.
PartiesKirk JACOBS, Plaintiff, v. DISTA PRODUCTS COMPANY and Eli Lilly and Company, Defendants.
Decision Date07 September 1988

James R. McCarty, Casper, Wyo., for plaintiff.

J.N. Murdock, Casper, Wyo., for defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT WITH FINDINGS

KERR, District Judge.

The above-entitled matter having come on regularly for hearing before the Court on defendants' motion for summary judgment or, alternatively, for partial summary judgment; plaintiff appearing by and through his attorney, James R. McCarty; defendants appearing by and through their attorney, J.N. Murdock; and the Court having heard the arguments of counsel and having fully and carefully reviewed and considered the motion and brief filed therewith and all matters pertinent thereto, and being fully advised in the premises, FINDS:

Plaintiff Jacobs brings this personal injury and products liability action against a drug manufacturer and a distributor, alleging that his health problems arose as a result of a prescription drug manufactured and distributed by defendants. This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a).

In late 1982, after injuring his right foot, plaintiff was seen by his physician, Dr. Miller, and the decision was made that an operation was necessary. A short time following the operation, plaintiff developed a boil on his foot. Being hundreds of miles away from Dr. Miller's office, plaintiff went to a nearby physician who prescribed erythromycin. This antibiotic proved ineffective against the infection and plaintiff was told to return to Dr. Miller in Laramie, Wyoming.

Upon seeing Jacobs, Dr. Miller determined that the proper treatment would be the prescription drug Keflex. Within weeks following usage of Keflex, Jacobs was diagnosed as having pseudomembranous colitis compounded some months later with diagnoses of inflammatory bowel disease, sensitivity to monosodium glutamate, and irritable bowel disease.

In his complaint, plaintiff claims that these health problems arose as a direct and proximate consequence of using Keflex and seeks damages upwards of $9,000,000 against the drug's manufacturer and distributor based upon three theories. Plaintiff's first contention is that defendants failed to adequately warn physicians and potential users of Keflex as to the possible side effects associated with its use. Secondly, plaintiff charges that defendants breached implied warranties of fitness and merchantability, warranties upon which he relied to his detriment. Finally, plaintiff raises a strict liability claim holding defendants liable for distributing a drug dangerous and unfit for human consumption.

Defendants counter that plaintiff assumed the risks which he encountered when he began using Keflex. It is defendants' position that, as applies to them, only two issues are outstanding: (1) the duty owed by Eli Lilly and Dista to plaintiff and (2) whether that duty has been breached.

Defendants urge that as drug manufacturers and distributors their duty to warn extends only to physicians who in turn, based upon knowledge of their own patients, bear the final responsibility for the decision to prescribe as well as to warn the patient of possible side effects. Based upon this so-called "learned intermediary" doctrine which a majority of states have adopted, defendants claim they had no duty to warn which extended to plaintiff and so there could not have been a breach. Moreover, in conjunction with this doctrine, defendants note for the Court that plaintiff, prior to instituting this suit, filed a suit against his prescribing physician in state court from whom he obtained a settlement. At the oral hearing on defendants' summary judgment motion, counsel for the parties indicated that there was no dispute as to the propriety of the "learned intermediary" rule.

With this in mind, the Court perceives the sole dispositive issue for determination to be the adequacy of the warnings provided to the prescribing physician. Before turning to this issue, the Court addresses plaintiff's claims centering on strict liability.

The scope of strict liability has been explained as follows:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Restatement (Second) of Torts § 402A (1965). The State of Wyoming recently joined the clear majority of states which have adopted § 402A in toto. See Ogle v. Caterpillar Tractor Co., 716 P.2d 334, 341 (Wyo.1986).

Directly pertinent to the matter at bar is whether Keflex constitutes a product sold in a "defective condition unreasonably dangerous to the user or consumer...." One of the comments which follow § 402A addresses strict liability in the context of a product which is unavoidably unsafe:

There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An ... example is the vaccine for the Pasteur treatment of rabies.... Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician.... The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.

Restatement (Second) of Torts § 402A comment k (1965) (emphasis in original).

The clear import of the above-quoted passages is that manufacturers of prescription drugs cannot be held accountable under a strict liability theory for injuries which might result from their use so long as adequate warnings are provided to enable a prescribing physician to weigh on a patient-by-patient basis the benefits of a drug's use against the attendant risks. Under these circumstances, the drug will not be considered unreasonably dangerous. Thus, whether strict liability is available as a legal cause of action to plaintiff requires that the focus of attention now turn to the adequacy of the warning provided to plaintiff's prescribing physician.

When sitting in diversity, a federal court must apply the law of the forum state as declared by that state's highest court or through legislation. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). This Court is unable to find a Wyoming decision which qualifies as precedent on this specific issue. Where no state court has addressed clearly the matter involved in a diversity action, this Court must make the best estimate of how the state's highest court would rule. Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir.1988). The Court may look to other decisions of Wyoming courts, decisions of other state courts, federal decisions, and general weight and trend of authority. Hartford v. Gibbons & Reed Co., 617 F.2d 567, 569 (10th Cir.1980).

Wyoming case law most closely related to the extent of a manufacturer's duty to warn is found in actions where defective design has been alleged. In O'Donnell v. City of Casper, 696 P.2d 1278 (Wyo.1985), a motorcyclist who collided into a parked vehicle and became engulfed in flames after encountering a patch of loose gravel on a city street sued the city for negligent maintenance on its streets and sued the manufacturer of the motorcycle for defectively designing the fuel system. Reversing the district court's grant of summary judgment for the manufacturer, the Wyoming Supreme Court concluded:

A manufacturer owes a duty of care to those who use its product.
....
Appellant's expert testified ... that as a result of tests conducted in Japan, the United States, and England, Suzuki had knowledge of the fire hazards associated with motorcycle accidents and failed to warn users against filling the fuel tank to capacity. This testimony presents a question of fact as to the extent of Suzuki's knowledge concerning the integrity of its fuel system in the event of an accident. This factual matter bears on the issue of whether Suzuki breached its duty, recognized by this court in Parker v. Heasler Plumbing & Heating Co., Wyo., 388 P.2d 516 (1964), to warn users of known, latent dangers.

O'Donnell, 696 P.2d at 1285, 1287 (emphasis added).

In the Parker case cited in O'Donnell, a school cafeteria employee sued the installer of an incinerator for, inter alia, failure to post warning instructions detailing the proper use and operation of the incinerator after she overloaded the incinerator with milk cartons and other refuse, causing a sudden burning when the door of the incinerator was opened. Citing with approval decisions from other jurisdictions, the Court affirmed the grant of summary judgment for defendant and reiterated:

The manufacturer or seller of a machine, dangerous because of the way in which it functions ... owes to those who use it a duty merely to make it free from latent defects and
...

To continue reading

Request your trial
15 cases
  • In re Norplant Contraceptive Products Liab. Lit.
    • United States
    • U.S. District Court — Eastern District of Texas
    • August 14, 2002
    ... ... ---------------------------------------------------------------------------------------------- ... (48) Wyoming Jacobs v. Dista Prod. Co., 693 F.Supp. 1029, 1036 (D.Wyo.1988) ... (applying Wyoming law) ... ...
  • Myers ex rel. Myers v. Hoffman-La Roche
    • United States
    • Arizona Court of Appeals
    • October 2, 2007
    ...CIBA-GEIGY Corp., 818 F.Supp. 1404 (D.Colo.1992); Cather v. Catheter Tech. Corp., 753 F.Supp. 634 (S.D.Miss. 1991); Jacobs v. Dista Prods. Co., 693 F.Supp. 1029 (D.Wyo.1988); Percival v. Am. Cyanamid Co., 689 F.Supp. 1060 (W.D.Okla.1987); Upjohn Co. v. MacMurdo, 562 So.2d 680 (Fla.1990); Mi......
  • Thom v. Bristol-Myers Squibb Co.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 22, 2003
    ...n. 11 (2001) (collecting cases), and the District of Wyoming has predicted that Wyoming would follow suit. See Jacobs v. Dista Products Co., 693 F.Supp. 1029, 1036 (D.Wyo.1988) ("The drug manufacturer's liability to plaintiff ended when it imparted adequate warnings to the physician."). In ......
  • Myers v. Hoffman-La Roche, Inc., 1 CA-CV 06-0137 (Ariz. App. 10/5/2007), 1 CA-CV 06-0137.
    • United States
    • Arizona Court of Appeals
    • October 5, 2007
    ...818 F. Supp. 1404 (D. Colo. 1992); Cather v. Catheter Tech. Corp., 753 F. Supp. 634 (S.D. Miss. 1991); Jacobs v. Dista Prods. Co., 693 F. Supp. 1029 (D. Wyo. 1988); Percival v. Am. Cyanamid Co., 689 F. Supp. 1060 (W.D. Okla. 1987); Upjohn Co. v. MacMurdo, 562 So. 2d 680 (Fla. 1990); Mikell ......
  • Request a trial to view additional results
1 books & journal articles
  • CHAPTER § 9.02 Common Defenses
    • United States
    • Full Court Press Regulation of Pharmaceutical Manufacturers Title CHAPTER 9 Product Liability
    • Invalid date
    ...Davis v. Wyeth Labs., Inc., 399 F.2d 121, 129 (9th Cir. 1968) (applying Montana law). Tenth Circuit: Jacobs v. Dista Prods. Co., 693 F. Supp. 1029, 1031 (D. Wyo. 1988). State Courts: Alabama: Stone v. Smith, Kline & French Labs., 447 So.2d 1301, 1303 (Ala. 1984). California: Brown v. Superi......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT