Elsroth v. Johnson & Johnson
| Decision Date | 15 November 1988 |
| Docket Number | No. 87 Civ. 1524 (GLG).,87 Civ. 1524 (GLG). |
| Citation | 700 F. Supp. 151 |
| Parties | John ELSROTH as Administrator of the Estate of Diane Elsroth, Plaintiff, v. JOHNSON & JOHNSON; McNeil Consumer Products Co., a division of McNeilab, Inc., and the Great Atlantic & Pacific Tea Co., Inc., Defendants. |
| Court | U.S. District Court — Southern District of New York |
J. Russell Clune, P.C., Harrison, N.Y. by J. Russell Clune, Kevin P. Clune, for plaintiff.
Lester Schwab Katz & Dwyer, New York City by Allan Fudim, Barry E. Warhit, for defendant The Great Atlantic & Pacific Tea Co., Inc. Patterson, Belknap, Webb & Tyler, New York City by David F. Dobbins, Steven C. Charen, Frederick B. Campbell, for defendant McNeilab, Inc.
With the California Supreme Court's decision in Greenman v. Yuba Power Products, 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963), this country embarked down the largely uncharted road of strict products liability — a road whose twists and turns are still being mapped by our legislatures and courts. Today's case represents another signpost along that journey. It presents certain unique and difficult questions regarding the extent to which society is prepared to hold manufacturers and retailers liable for product tampering by third parties (in this case, unknown third parties). Before turning to the facts, some background is in order.
In late September of 1982, this country was shocked by a series of murders in the Chicago area stemming from cyanide tampering of Extra-Strength Tylenol capsules.1 In swift response to those tragedies, the pharmaceutical industry, in concert with the Federal Government, moved to protect consumers from the perils and random madness of product tampering.
On November 5, 1982, barely one month after the Chicago tragedies were made public, the Food and Drug Administration (the "FDA") issued a final rule on tamper-resistant packaging applicable to most over-the-counter drugs, such as Tylenol.2 As a result of that rule, manufacturers of over-the-counter drugs (with certain limited exceptions) were given a timetable in which to take steps to improve product integrity by virtue of a tamper-resistant package.3 The rule defines a "tamper-resistant package" as "one having an indicator or barrier to entry which, if breached or missing, can reasonably be expected to provide visible evidence to consumers that tampering has occurred." 21 C.F.R. § 211.132 (1987). As the FDA's comments attending issuance of the rule made clear, the rule allowed manufacturers flexibility in determining the most appropriate of several packaging options available (including various types of wrappers and seals listed by the FDA, although it made clear the list was by no means exhaustive or preclusive). 47 Fed. Reg. 50,442, 50,444 (Nov. 5, 1982).
Following issuance of the rule, the makers of Tylenol have marketed that product in tamper-resistant packaging with the following features: (1) a foil seal glued to the mouth of the container or bottle; (2) a "shrink seal" around the neck and cap of the container; and (3) a sealed box (the end flaps of which are glued shut) in which the product and container are placed. It appears that by 1986, after a considerable period of market losses Tylenol had incredibly regained its dominant position in the market for over-the-counter pain relievers. McFadden, Maker of Tylenol Discontinuing All Over-Counter Drug Capsules, N.Y. Times, Feb. 18, 1986, at A1, col. 3.
Against that backdrop, we turn to the facts underlying the present action, about which there are no material disputes.
On February 4, 1986, Harriet Notarnicola purchased a box of Extra-Strength Tylenol capsules from a Bronxville grocery store owned and operated by the defendant The Great Atlantic & Pacific Tea Co. ("A & P"). During her deposition, Mrs. Notarnicola testified that the package did not appear out of the ordinary in any way; i.e., it was not apparent to her that there had been any product tampering. When she returned home, she placed the unopened box in her food closet.
The decedent, Diane Elsroth, was that week visiting her boyfriend, Michael Notarnicola, at the home of Michael's parents. Late on the night of February 7, Diane complained of a headache. Michael went to the kitchen, opened the box and plastic container of Extra-Strength Tylenol purchased by his mother earlier that week, and returned with two capsules and a glass of water for Diane. At his deposition, Michael testified that he noticed nothing unusual about the packaging; i.e., the flaps to the box were glued shut, the shrink seal did not appear to be disturbed, and the foil seal further securing the capsules had not been broken.
A short time after ingesting the capsules, Diane retired, mentioning that she was not feeling well. Her dead body was found the next day. The medical examiner concluded that the Tylenol capsules she ingested were contaminated by a lethal dose of potassium cyanide. Her death was listed as a homicide.
The murder remains unsolved, and it has not been determined conclusively how the product was tampered with. There is no genuine dispute, however, as to a crucial, material fact — the tampering in question occurred after the product left the manufacturer's control. Consistent with the FDA's conclusions as to the Chicago incidents in 1982, and the investigation of the Federal Bureau of Investigation in the instant case, the most likely scenario appears to be as follows. An unknown third party purchased or stole the Extra-Strength Tylenol in question at the Bronxville A & P, or at some other location. That individual breached the packaging, and substituted cyanide for some of the medicine contained in several of the gelatin capsules.4 The individual replaced the now-contaminated capsules in the container and somehow was able to reseal the container and box in such a way that the tampering was not readily detectable. That individual then placed the contaminated box of Extra-Strength Tylenol on the shelf of the Bronxville A & P, where it was purchased on February 4 by Mrs. Notarnicola.5
Against this factual backdrop, John Elsroth, administrator of Diane Elsroth's estate, brings this action seeking to hold liable A & P and McNeil Consumer Products Co., a division of McNeilab, Inc. ("McNeil"), the manufacturer of Extra-Strength Tylenol.6 Plaintiff seeks $1 million in compensatory damages on any one of three alternative grounds: strict products liability, breach of warranty, or negligence. He also seeks $92 million in punitive damages based on the allegedly outrageous conduct of the defendants, and $500,000 for medical, funeral, and other expenses sustained by the estate as well as for pecuniary losses sustained by the decedent's next-of-kin.
The suit originally was brought in New York State court, but was removed to this court on petition of defendant A & P on the basis of diversity. Our jurisdiction is pursuant to 28 U.S.C. § 1332(a) (1982).
The defendants move for summary judgment on all claims. Plaintiff moves for summary judgment on certain claims asserted solely against A & P, and contends that fact questions preclude summary judgment on all remaining claims.
We are mindful that, although recent Supreme Court decisions have revitalized the use of summary judgment, Rule 56 remains a disfavored remedy in this circuit. Moreover, we are aware of this circuit's preference for ruling on difficult legal issues only upon a full evidentiary record. In this instance, however, we have resolved all disputed factual issues in the plaintiff's favor, as we suspect a sympathetic jury would do. To take this matter to trial and then set aside a jury's verdict as a matter of law would seem less desirable than ruling on these legal issues as presented by the motion papers. Thus, for the reasons that follow, we grant defendants' motions for summary judgment and deny plaintiff's motion for same.
We consider first the negligence claim asserted against A & P. Plaintiff contends that, as a result of the Chicago tampering cases in 1982, A & P was on notice that Tylenol could be the target of tampering. Consequently, it is argued, A & P's decision to continue to make Tylenol available as an over-the-counter drug where it would be susceptible to foreseeable tampering constituted a breach of A & P's duty to its customers. Since, plaintiff concludes, this breach was the proximate cause of Diane Elsroth's death, A & P is liable to plaintiff in negligence. We think this reasoning rests upon a faulty premise, and we grant A & P's motion for summary judgment on the claim.
We begin with the well-traveled proposition that negligence is conditioned on the existence of a duty; without the latter, the former is nothing but an ethereal concept that cannot impart liability. This principle is neatly summarized in the oft-quoted maxim that "negligence in the air, so to speak, will not do." Pollock, Law of Torts 468 (13th ed. 1929).
The concept of duty as a limitation on tortious liability is somewhat unique to the American system, and it has received its share of criticism. W. Prosser, Handbook of the Law of Torts § 53, at 325 (4th ed. 1971) hereinafter "Prosser". Its place in the law of this State, however, was firmly and forever established by the timeless opinion of then Chief Judge Cardozo in Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 342, 162 N.E. 99, reh'g denied, 249 N.Y. 511, 164 N.E. 564 (1928):
"In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury" (McSherry, C.J., in W. Va. Central R. Co. v. State, 96 Md. 652, 666 54 A. 669; ...). "The ideas of negligence and duty ,therefore, are strictly correlative" (Bowen, L.J., in Thomas v. Quartermaine, 18 Q.B.D. 685, 694).
The question here presented is not whether...
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