697 F.2d 222 (8th Cir. 1983), 81-2291, DeLuryea v. Winthrop Laboratories, a Div. of Sterling Drug, Inc.

Docket Nº:81-2291, 81-2297.
Citation:697 F.2d 222
Party Name:Leota A. DeLURYEA, Appellee/Cross-Appellant, v. WINTHROP LABORATORIES, A DIVISION OF STERLING DRUG, INC. and Sterling Drug, Inc., Appellant/Cross-Appellee.
Case Date:January 05, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 222

697 F.2d 222 (8th Cir. 1983)

Leota A. DeLURYEA, Appellee/Cross-Appellant,

v.

WINTHROP LABORATORIES, A DIVISION OF STERLING DRUG, INC. and

Sterling Drug, Inc., Appellant/Cross-Appellee.

Nos. 81-2291, 81-2297.

United States Court of Appeals, Eighth Circuit

January 5, 1983

Submitted April 13, 1982.

Page 223

Joe M. Rogers, West Memphis, Ark., for appellee/cross-appellant.

Alston Jennings, Little Rock, Ark., for appellant/cross-appellee.

Before BRIGHT, HENLEY [*] and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Sterling Drug, Inc. and its division, Winthrop Laboratories, appeal from a judgment in favor of plaintiff Leota A. DeLuryea in the amount of $80,000. Mrs. DeLuryea brought suit against defendants (Sterling) for damages suffered as a result of drug dependence and tissue damage caused by the drug Talwin manufactured by Sterling. The case was submitted to the jury on theories of strict liability, negligence, and breach of express warranty. Sterling claims that the trial court erred in refusing to direct a verdict against DeLuryea for failure to establish causation; in refusing to admit the deposition of Dr. Ivie, a deceased treating physician; in admitting evidence of a change in warnings concerning Talwin's side effects which Sterling published after DeLuryea stopped taking Talwin; in admitting certain statements allegedly made by Sterling's detail men; and in submitting the issue of breach of express warranty. DeLuryea cross-appeals claiming error in the trial court's refusal to submit the issue of punitive damages. Because we find the exclusion of Dr. Ivie's testimony to be in error, we reverse.

DeLuryea's ponytail was caught in the shaft of some machinery in the shoe factory in which she was working on January 3, 1959, and her scalp, forehead, upper eyelids and the area around her ears were torn off completely. She had surgery on several occasions and the use of painkilling medication was required. In the summer of

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1968, DeLuryea's treating physician, Dr. McCarthy DeMere, became concerned that she had become dependent upon her principal painkilling medication, Demerol. DeLuryea was hospitalized on August 28, 1968 and Dr. Charles Cooke was called in for consultation. Dr. Clarke prescribed Talwin in lieu of Demerol. After the initial prescription by Dr. Clarke, DeLuryea obtained prescriptions for Talwin from Drs. Clopton and Futrell, two general practitioners in northeast Arkansas, and self-administered the drug in injectible form until June 3, 1974.

In the summer of 1970, Dr. DeMere became suspicious that DeLuryea was developing a dependence on Talwin and asked Dr. Mark Ivie, a psychiatrist, to see her.

In September of 1970, Dr. DeMere excised a small lesion on DeLuryea's thigh that was thought to have been caused by an injection, but this was not directly traced to Talwin. On January 8, 1971, DeLuryea had a sinus tract on her buttock that Dr. DeMere determined was caused by Talwin. Dr. DeMere advised DeLuryea that she was sensitive to Talwin and she should not take it anymore. He did not learn until 1974 that she had continued taking Talwin long after this conversation.

At trial, DeLuryea described how she had learned to administer injections of medication when her father was ill in 1949 and knew that shots were to be rotated intramuscularly. Dr. Clopton gave her further instruction as to the injection of Talwin in 1968 and the locations to use in her arms, hips, and thighs and to rotate the site of injections. Both oral Demerol and oral Talwin nauseated her. DeLuryea testified that she was certain that no one had told her not to take Talwin before 1974.

DeLuryea developed severe ulcerations on her left thigh with necrotic tissue caused by injections of Talwin over a period of time. Later she developed tissue necrosis of her other thigh and her hips, shoulders, and upper arms. Sterling stipulated that DeLuryea's tissue problems were caused by her use of Talwin.

Insofar as the evidence bears upon the issues raised on appeal, it will be discussed with reference to each such issue.

I.

Sterling claims that DeLuryea failed to make a submissible case because no doctor who prescribed Talwin for DeLuryea testified that the warnings were inadequate or that he would have acted differently if different warnings had been given. Thus, Sterling argues there was a complete absence of proof of causal connection between the warnings and the damage suffered by DeLuryea.

None of the doctors prescribing Talwin testified. One was deceased at the time of trial.

DeLuryea produced testimony from Dr. McCarthy DeMere that the warnings given prior to May 1974 regarding tissue damage at injection sites were inadequate to warn the medical profession of the danger involved. He stated that the manufacturer knew in 1967, prior to marketing, that Talwin would cause tissue damage after prolonged use. An adequate warning could have been given at that time. Dr. Richard McShane testified that Sterling's premarketing animal studies revealed tissue damage similar to that found in humans. This, however, was not publicized until May 1974. He agreed with Dr. DeMere that the warnings prior to May 1974 were inadequate to warn of damage at injection sites.

Information concerning not only Talwin but other prescription drugs is contained in a package insert accompanying each drug. The package insert is updated as further information on the drug becomes available. The Physicians' Desk Reference, which in the case of Talwin contained the same information as the package insert, is furnished to all physicians without charge by its publisher, Medical Economics.

Under these circumstances, with evidence of inadequate warnings, and that the warnings were placed in the hands of all physicians, which would include the three prescribing physicians, we conclude that DeLuryea's evidence established a submissible issue

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on negligence and proximate cause. We must, of course, consider the evidence in the light most favorable to DeLuryea. De Witt v. Brown, 669 F.2d 516, 512 (8th Cir.1982); Garoogian v. Medlock, 592 F.2d 997, 999 n. 3 (8th Cir.1979).

This court in Sterling Drug, Inc. v. Cornish, 370 F.2d 82 (8th Cir.1966), discussed the importance of warning prescribing physicians as follows:

[T]he purchaser's doctor is a learned intermediary between the purchaser and the manufacturer. If the doctor is properly warned of the possibility of a side effect in some patients, and is advised of the symptoms normally accompanying the side effect, there is an excellent chance that injury to the patient can be avoided. This is particularly true if the injury takes place slowly, as is the case with the injury in question here.

370 F.2d at 85.

The defendant drug manufacturer in Cornish alleged that plaintiff's doctors negligently failed to keep up with medical literature and that that negligence was an intervening proximate cause of plaintiff's injuries. This court answered that argument by stating:

There is no question of intervening proximate cause [from the doctors failing to keep up with medical literature] in this case. The sole issue was whether appellant negligently failed to make reasonable efforts to warn appellee's doctors. If appellant did so fail, it is liable regardless of anything the doctors may or may not have done....

370 F.2d at 85. See also, Lindsay v. Ortho Pharmaceutical Corp., 481 F.Supp. 314 (E.D.N.Y.) 1979, rev'd on other grounds, 637 F.2d 87 (2d Cir.1980); Bine v. Sterling Drug, Inc., 422 S.W.2d 623 (Mo.1970).

Under Cornish we conclude that failure to produce testimony of the prescribing doctors was not fatal to DeLuryea's case on the issue of proximate cause. In Schenebeck v. Sterling Drug, Inc., 423 F.2d 919, 923 (8th Cir.1970), we held that one of several permissible inferences was that the doctors would have heeded the warning and altered the course of treatment had an adequate warning been given. Here there was evidence that the warnings were inadequate, that DeLuryea continued using the medication, and that the usage produced the tissue damage, all subjects of the court's reasoning in Schenebeck. As in Schenebeck:

[W]e think the plaintiff presented sufficient evidence for the jury to find that Sterling's failure to timely warn constituted an omission on its part which operated through a natural sequence of events to proximately cause or contribute to plaintiff's harm. See Parke-Davis and Co. v. Stromsodt, 411 F.2d 1390 (8th Cir.1969).

423 F.2d at 923.

Sterling relies upon Douglas v. Bussabarger, 73 Wash.2d 476, 438 P.2d 829 (Wash.1968) (en banc); Oppenheimer v. Sterling Drug, Inc., 7 Ohio App.2d 103, 219 N.E.2d 54 (1964); Chambers v. G.D. Searle & Co., 441 F.Supp. 377, (D.Md.1975), aff'd, 567 F.2d 269 (4th Cir.1977) (per curiam); and Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir.1981).

The prescribing physician in Douglas specifically stated that he did not read the allegedly inadequate warnings, rather he relied on his own medical knowledge. The court concluded that any negligence in failing to warn was not the proximate cause of plaintiff's disability. In Oppenheimer the prescribing physician did not specifically recall reading the precautions in question. The doctor stated that he relied on his own experience in prescribing the drug. The court held that the doctor's failure to rely on the warnings was sufficient to defeat plaintiff's claim. In Chambers the prescribing physician testified that he had no knowledge of plaintiff's predisposition toward stroke and therefore would not have altered his prescription had there been an adequate warning about use of the drug in question by those predisposed to stroke. The court concluded...

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