766 F.2d 1190 (8th Cir. 1985), 84-1924, Baas v. Hoye

Docket Nº:84-1924, 84-1944.
Citation:766 F.2d 1190
Party Name:Julie J. BAAS, Administrator of the Estate of Jessica Baas, Deceased, Ricky Dean Baas, and Julie J. Baas, Appellees, v. Donald HOYE, d/b/a Hoye Super Rexall Drug, and Robert H. Young, Appellants, v. James L. COFFEY, M.D., and Patricia Nystom, Appellees. Julie J. BAAS, Administrator of the Estate of Jessica Baas, Deceased, Ricky Dean Bass, and Julie
Case Date:June 28, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1190

766 F.2d 1190 (8th Cir. 1985)

Julie J. BAAS, Administrator of the Estate of Jessica Baas,

Deceased, Ricky Dean Baas, and Julie J. Baas, Appellees,

v.

Donald HOYE, d/b/a Hoye Super Rexall Drug, and Robert H.

Young, Appellants,

v.

James L. COFFEY, M.D., and Patricia Nystom, Appellees.

Julie J. BAAS, Administrator of the Estate of Jessica Baas,

Deceased, Ricky Dean Bass, and Julie J. Baas, Appellants,

v.

Donald HOYE, d/b/a Hoye Super Rexall Drug, and Robert H.

Young, Appellees.

James L. Coffey, M.D., and Patricia Nystom.

No. 84-1924, 84-1944.

United States Court of Appeals, Eighth Circuit

June 28, 1985

Submitted Jan. 29, 1985.

Rehearing Denied Aug. 2, 1985.

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[Copyrighted Material Omitted]

Page 1192

Leo E. Fitzgibbons, Estherville, Iowa, for appellant.

Stephen F. Avery, Spencer, Iowa, for appellee.

Before LAY, Chief Judge, and FAGG and BOWMAN, Circuit Judges.

FAGG, Circuit Judge.

Donald J. Hoye, d/b/a Hoye Super Rexall Drug, and Robert H. Young appeal from a jury verdict in favor of the estate of Jessica Baas and Jessica's parents, Julie and Ricky Baas. The Baases were awarded damages upon a jury determination that Hoye and Young violated a consumer product safety rule requiring the dispensing of prescription drugs in childproof containers.

Hoye and Young claim that: (1) they did not violate a consumer product safety rule because the drug they dispensed is not solely a prescription drug; (2) the plaintiff Ricky Baas requested that the prescription be refilled in a non-childproof container, thus exempting Hoye and Young from liability under 15 U.S.C. Sec. 1473(b); and (3) the Baases failed to prove a knowing violation of a consumer product safety rule as required for recovery under 15 U.S.C. Sec. 2072. Hoye and Young also appeal from the jury's award of punitive damages against them, claiming that the federal statute, 15 U.S.C. Sec. 2072, limits recovery to compensatory damages. The Baases cross-appeal, asserting that the judgment n.o.v. of the district court denying Ricky Baas recovery on his negligent infliction of emotional distress claim as well as the district court's denial of attorney's fees to the Baases was improper.

We affirm the jury's finding of liability under 15 U.S.C. Sec. 2072 and the district court's grant of judgment n.o.v. eliminating Ricky Baas' recovery for negligent infliction of emotional distress. Because we agree with Hoye and Young that the federal statute limits recovery to compensatory damages, we reverse the punitive damage award granted the estate of Jessica Baas. We also remand this case to the district court for reconsideration of the Baases' request for attorney's fees.

Facts

The Baases had a prescription on file at the Hoye Super Rexall Drug store for the drug Tedral SA. On July 13, 1981, Robert Young, a pharmacist employed at the drug store, filled a prescription for 50 Tedral SA tablets in a non-childproof container. On August 10, 1981, Ricky Baas brought the non-childproof container to Hoye Rexall Drug to obtain additional Tedral SA tablets. Donald Hoye, a pharmacist and owner of the drug store, refilled the non-childproof container with Tedral SA tablets.

On August 21, 1981, the Baases' daughter, Jessica, ingested a number of the Tedral SA tablets contained in the non-childproof container. Medical efforts to save Jessica were unsuccessful and she died on September 4, 1981.

The Baases filed a three-count complaint in district court pleading federal jurisdiction under 15 U.S.C. Sec. 2072. Section 2072 provides that "[a]ny person who shall sustain injury by reason of any knowing (including willful) violation of a consumer product safety rule * * * shall recover damages sustained." Count I of the complaint is a claim for compensatory and punitive damages for the wrongful death of Jessica Baas. Count II is the parents' claim for loss of companionship and services of their child as provided for in Rule 8 of the Iowa Rules of Civil Procedure. Count

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III is an additional claim by Jessica's parents for negligent infliction of emotional distress.

The jury determined that Hoye and Young violated a consumer product safety rule by dispensing Tedral SA in a non-childproof container, see 16 C.F.R. Sec. 1700.14(a)(10), and awarded $30,000 compensatory damages and $100,000 punitive damages under Count I, $60,000 compensatory damages under Count II, and $15,000 compensatory damages under Count III. After reducing the parents' awards under Iowa's comparative negligence rule, the Baases recovered a total of $15,000 each under Counts II and III of the complaint. Comparative negligence principles did not affect the award to the estate of Jessica Baas in Count I of the complaint.

Hoye and Young filed a motion for judgment n.o.v. or in the alternative for a new trial. The district court overruled their motion except for the elimination of Ricky Baas' claim for negligent infliction of emotional distress. Additionally, the court denied the Baases' request for attorney's fees. Hoye and Young then filed this appeal.

Substantive Violation

Hoye and Young initially contend that recovery by the Baases under 15 U.S.C. Sec. 2072 was improper because they did not violate a consumer product safety rule. The jury found that Hoye and Young violated a consumer product safety rule mandating that any drug required by federal law to be dispensed only by a prescription be dispensed in a childproof container. See 16 C.F.R. Sec. 1700.14(a)(10). It is Hoye's and Young's position that the drug they dispensed in a non-childproof container, Tedral SA, is not a drug required by federal law to be dispensed only by a prescription. To support their argument, Hoye and Young point out that Tedral SA is the brand name of a product that contains the ingredients theophylline, ephedrine, and phenobarbital. Hoye and Young then argue that other products containing the same three ingredients, namely, Tedral and Primatine Formula P, are available without a prescription. According to Hoye and Young, the district court committed error by looking to the brand name, Tedral SA, as compared to the ingredients of Tedral SA in determining whether Tedral SA is a drug available only by prescription.

We disagree with the argument of Hoye and Young and hold that the district court properly instructed the jury that "knowingly dispens[ing] Tedral SA to Ricky Baas in a non-childproof container [is a] violation of the consumer product safety rule." The United States Pharmacopeia lists Tedral SA as a prescription drug. There is no dispute that Tedral SA can only be obtained by a prescription. The mere fact that other products containing different percentages of the same ingredients of Tedral SA can be obtained without a prescription is of no consequence.

Hoye and Young also contend that Ricky Baas requested a non-childproof container for the Tedral SA prescription and that 15 U.S.C. Sec. 1473(b) thus exempts them from liability. Section 1473(b) authorizes the use of noncomplying packaging "when requested by the purchaser."

The evidence shows that without request by the Baases, Young filled Ricky Baas' original prescription for Tedral SA in a non-childproof container. Approximately one month later, Ricky Baas returned to the pharmacy, handed Hoye the non-childproof container, and asked for a refill. Without asking any questions regarding the type of container Baas desired, Hoye refilled the prescription in a non-childproof container. Although one could infer that Ricky Baas wanted his prescription filled in a non-childproof container and that his handing of the container to the pharmacist constituted a request for a non-childproof container, another reasonable inference is that Ricky Baas merely wanted to obtain another prescription and the container had the prescription on the vial. Ricky Baas in fact testified that this was his purpose in returning the vial. Based upon the evidence before it, the jury determined that Ricky Baas did not request a non-childproof

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container, and we have no basis for overturning the jury's determination.

Section 2072 permits recovery of damages sustained by reason of a knowing violation of a consumer product safety rule. 15 U.S.C. Sec. 2072. Based upon their testimony that they were unaware of any requirement that prescription drugs be dispensed in childproof containers and they believed the use of such containers to be a "suggestion" or "recommendation," Hoye and Young argue that the Baases failed to prove a knowing violation of a consumer product safety rule. We disagree. The jury could reasonably conclude that, as experienced pharmacists, Hoye and Young were aware of the consumer product safety rule requiring prescription drugs to be dispensed in childproof containers.

Damages

Julie Baas, as administrator of the estate of Jessica Baas (the...

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