Abbott Laboratories v. Gravis
| Decision Date | 21 July 1971 |
| Docket Number | No. B--2598,B--2598 |
| Citation | 470 S.W.2d 639 |
| Parties | ABBOTT LABORATORIES et al., Petitioners, v. C. K. GRAVIS, Jr., et ux., Respondents. |
| Court | Texas Supreme Court |
Perkins, Davis, Oden & Warburton, Kenneth Oden, Alice, Allison, Maddin, White & Brin, Ronald B. Brin, Corpus Christi, for petitioners.
Sidney P. Chandler, Alpine, for respondents.
In a former suit, it was alleged that Mrs. Elma Gravis suffered partial paralysis and other injuries as the result of an abdominal operation. She and her husband, respondents here, sued the hospital, the doctors, and the anesthetist for various acts of negligence. They also sued Abbott Laboratories, a petitioner here, with regard to drugs used in the operation and as a conspirator with the other defendants. In the former suit, summary judgment was entered for all defendants including Abbott. Since there was no appeal by the plaintiffs as to Abbott, this court affirmed that summary judgment for Abbott. As to other defendants, this court reversed the judgment of the courts below and remanded the cause for trial. Gravis v. Physicians & Surgeons Hospital of Alice, 427 S.W.2d 310 (Tex.1968).
Thereafter Mr. and Mrs. Gravis settled with the doctors, the anesthetist and the hospital. They then instituted this separate law suit against the drug firms whose products were used in the operation: Abbott Sterling Drug, Inc., Winthrop Laboratories, Inc., and Parke, Davis & Co. This suit is based on allegations of strict liability for the furnishing of defective products.
The trial court again entered summary judgments for all defendants. The court of civil appeals reversed as to all defendants and remanded the cause for trial. 462 S.W.2d 410. We agree that, except as to Abbott, it was error for the trial court to enter summary judgments for the defendants. Our view is that the cause of action as to Abbott is barred by the doctrine of res judicata.
The facts in this case have been set out at length in the opinions noted above, and we will repeat only those facts which relate to res judicata and the erroneous entry of the summary judgment.
Mrs. Gravis, suffering from abdominal pains, was admitted to the hospital. Surgery was performed. The anesthetist administered a spinal anesthetic initially; and during the operation, she administered a pentothal sodium solution intravenously. The spinal anesthetic contained dextrose and novacaine produced and sold by the defendant Winthrop Laboratories (a subsidiary of Sterling Drug), and adrenalin produced by the defendant Parke-Davis. The pentothal sodium solution was prepared from a powdered preparation of the drug manufactured by the defendant Abbott which was mixed with a saline solution and dextrose. Although the surgery was successful in removing an intestinal block, Mrs. Gravis has experienced disabilities since the operation. The first suit against the hospital, the doctors, the anesthetist and Abbott followed.
The former action against Abbott was based upon the theory that it was negligent in the manufacture of the drug, pentothal sodium, used in the Spinal anesthetic which was a proximate cause of Mrs. Gravis' disabilities. There were allegations that the drug was of an excessively high concentration; that it had not been tested; that it was contaminated and unfit for use; and that its preparation was not only negligence on the part of Abbott, but its use was negligence as to all defendants. There were allegations that there was a conspiracy against Mrs. Gravis by all defendants and that Abbott was a joint adventurer with the other defendants. The fifteenth count, a separate and general allegation, was that Abbott, in preparing and furnishing the drug, did not act as an ordinarily prudent laboratory.
It is fair to say that the plaintiffs, in their original petition on which summary judgment proceedings began, mainly contended that the pentothal sodium prepared by Abbott formed a part of the solution injected into the spinal column, as contrasted with its injection into the veins of Mrs. Gravis.
Abbott moved for summary judgment in the first trial on the basis that it had no connection with the spinal anesthetic. Abbott's motion, supported by affidavits, was granted.
The plaintiffs filed a motion for new trial and, shortly thereafter, their first amended original petition. In their amended petition the plaintiffs alleged that the pentothal sodium administered to Mrs. Gravis Intravenously during the operation was unfit for use, and that Abbott was negligent in furnishing and supplying such drug. Abbott replied with the assertion, among other things, that the allegations of the amended petition were barred by res judicata by virtue of the previous granting of its motion for summary judgment. Abbott's motion for dismissal was granted, and the plaintiffs' motion for a new trial as to Abbott was overruled.
The trial court apparently regarded these actions as interlocutory. Over a year later, the trial court entered a final judgment. The final judgment (which is an unusual one to say the least) decreed that the plaintiffs take nothing as to Abbott; repeated its action in sustaining Abbott's motion for summary judgment and overruling the plaintiffs' motion for a new trial as to Abbott's motion for summary judgment; and again sustained Abbott's motion to be dismissed from the suit.
The judgment noted that the plaintiffs objected and excepted to all of these actions and gave notice of appeal. Upon appeal, however, the plaintiffs did not assign error as to Abbott. The actual judgment of the court of civil appeals, as well as the judgment recited in its opinion, was one which simply affirmed the judgment of the trial court. 415 S.W.2d 674 at 682. Our opinion in the first cause noted that the plaintiffs had not complained of a summary judgment rendered in favor of Abbott. We therefore affirmed the judgment of the court of civil appeals as to Abbott. 1 We ordered a severance as to all other defendants, reversed the judgment of the court of civil appeals as to them, and remanded the cause to the trial court. 427 S.W.2d 310 at 312.
The present action against Abbott can be construed as one founded wholly upon the theory of products liability. The...
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