Barry v. Don Hall Laboratories

• Decision Date: 22 March 1982
• Docket Number: Nos. A7807-11079,s. A7807-11079
• Citation: 642 P.2d 685,56 Or.App. 518
• Parties: Michael BARRY, Appellant, v. DON HALL LABORATORIES, an Oregon corporation, Respondent. ; CA 18699.
• Court: Oregon Court of Appeals

Page 685

642 P.2d 685

56 Or.App. 518

Michael BARRY, Appellant, v. DON HALL LABORATORIES, an Oregon corporation, Respondent.

Nos. A7807-11079; CA 18699.

Court of Appeals of Oregon.

Argued and Submitted Aug. 17, 1981.

Decided March 22, 1982.

Roger Tilbury, Portland, argued the cause for appellant. With him on the briefs were Robert P. Johnson and Haessler, Tilbury & Platten, Portland.

Ridgway K. Foley, Jr., Portland, argued the cause for respondent. With him on the brief was Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.

Before RICHARDSON, P. J., and THORNTON and VAN HOOMISSEN, JJ.

VAN HOOMISSEN, Judge.

Plaintiff brought this action for personal injuries on theories of strict liability, negligent failure to warn and breach of warranty. He alleged that he suffered substantial tooth decay because he used defendant's vitamins, which had a high sugar content but no warning or list of ingredients. After the trial court granted defendant's motion to strike plaintiff's cause of action for negligence, a jury verdict was returned in favor of defendant. Plaintiff appeals. We reverse.

Plaintiff assigns as errors: (1) the trial court's giving or not giving certain instructions; (2) the trial court's ruling that an expert witness could testify, even though plaintiff's counsel did not receive a copy of the expert's report until the day before he testified; and (3) the trial court's order striking his cause of action for negligence.

Plaintiff started using defendant's vitamin C tablets in early 1974. He purchased them because the label described them as "natural" vitamins. ¹ Prior to eating the vitamins, his teeth were in good condition. He testified that his teeth deteriorated rapidly after he began using the vitamins. In January, 1975, he consulted a dentist, who discovered three small cavities which needed repair. Over a two-year period sharp edges formed on his teeth, requiring three extractions and crown work. A lab test revealed that defendant's vitamins contained 78 percent sugar. Plaintiff contends that the sugar reacted with ascorbic acid in the vitamins, producing a synergistic effect which eroded his teeth.

Plaintiff contends that the trial court erred in instructing the jury that to recover under a strict liability theory he had to prove that the product was both defective and unreasonably dangerous. He argues that it was unnecessary for him to prove that the vitamins were defective. Oregon law commingles the concepts of defective products and unreasonably dangerous products by providing that, if the product is in fact unreasonably dangerous, the manufacturer is liable for harm caused by such a defect. In other words, to recover on a strict liability theory, plaintiff must prove that the product was "unreasonably defective." Heaton v. Ford Motor Co., 248 Or. 467, 470, 435 P.2d 806 (1967).

A defect is an essential element of recovery.

" * * * (W)e have decided that our basis for limiting the enterprise responsibility rationale is the requirement that there be a defect in the article. The test of a defect is whether the article is in conformance with a tacit representation which the law imposes that it is not unreasonably dangerous if put to the use for which it was manufactured. This rationale is consistent with Section 402A (Restatement (Second) of Torts) * * *." Markle v. Mulholland's Inc., 265 Or. 259, 269, 509 P.2d 529 (1973).

In Harris v. Northwest Natural Gas Company, 284 Or. 571, 576, 588 P.2d 18 (1978), the Supreme Court observed that unreasonably dangerous defects in products come from two principal sources: (1) mismanufacture and (2) faulty design, including failure to warn. See Phillips v. Kimwood Machine Co., 269 Or. 485, 491 n.2, 525 P.2d 1033 (1974). In explaining the special nature of defects in failure to warn cases, the Harris court noted:

"The failure to warn is unique in strict products liability in its application of the basic principles of § 402A. It is not essential that the product be defective in the sense that it was not properly manufactured. A product may be perfectly manufactured and meet every requirement for its designed utility and still be rendered unreasonably dangerous through failure to warn of its dangerous characteristics. Jackson v. Coast Paint and Lacquer Company, 499 F.2d 809, 811 (9th Cir. 1974), citing Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. 1968). It is considered defective when it is sold without a warning. Comment h, § 402A." 284 Or. at 576-77 n.8, 588 P.2d 18.

The principles articulated in Harris govern the present case. Here, there is no contention that the product was defective because of mismanufacture. Plaintiff contends the vitamin bottles failed to warn consumers of the vitamins' high sugar content. Thus, the issue is whether the jury was properly instructed that failure to warn on the label that the vitamins had a high sugar content could constitute a defect in the product.

Before the court ever used the terms "defective" and "unreasonably dangerous" in the conjunctive, it explained to the jury that a product is dangerously defective when it is in a condition unreasonably dangerous to the user. The court also instructed without objection that failure to warn about a product's ingredients may make it dangerously defective:

"If a product contains an ingredient which the user would reasonably not expect to find in the product, and if the seller knows or in the exercise of reasonable care should have known of the presence of the ingredient and the danger, then the product is dangerously defective unless the seller gives reasonable warning against the danger."

We conclude that, when considered with the other instructions given, the court correctly instructed the jury. See Myers v. Cessna Aircraft, 275 Or. 501, 526, 553 P.2d 355 (1976).

Plaintiff contends that the circuit court erred in refusing to give the following instruction:

"A product may be shown to be defective by proof of one of the following:

"1. A defect in the way in which an item is made.

"2. Inability to be able to use the product safely, under circumstances in which, from common knowledge, the average user reasonably could have expected the product to be used safely."

Instead, the court instructed:

"A product is dangerously defective when it is in a condition unreasonably dangerous to the user. Unreasonable in this regard means dangerous to an extent beyond that which would be contemplated by the ordinary purchaser of this type of product in the community."

The trial court's instruction more completely and accurately stated the law than would have plaintiff's requested instruction. See Restatement (Second) of Torts § 402A, comment i. Moreover, part two of the requested instruction is similar to an instruction we found erroneous in Weems v. CBS Imports, 46 Or.App. 539, 612 P.2d 323, rev. den. 289 Or. 659 (1980). Although the facts of this case are not identical to those in Weems, we conclude that the requested instruction was similarly inappropriate. The trial court did not err in refusing to give it.

Plaintiff contends the trial court erred in declining to give a more expansive instruction on defendant's duty to research and warn consumers about the effects of its vitamins. The court, however, gave the substance of the requested instruction. The jury was sufficiently apprised of defendant's duty to "keep abreast of research and knowledge * * * " in its field and to warn of "all reasonable dangers which the manufacturer at the time of the sale knows or should know concerning the product in its use by the purchaser." The court was not required to give a requested instruction if its substance was included in the charge given. Arp v. Kerrigan, 287 Or. 73, 90, 597 P.2d 813 (1979); Ballou v. Blitz-Weinhard Co., 246 Or. 179, 182, 424 P.2d 225 (1967).

Plaintiff contends that the trial court erred in refusing to give four additional instructions on the nature and specificity of any required warning. The requested instructions were abstract; the case presented no issue on the adequacy of any warning, because none was given. Arp v. Kerrigan, supra, 287 Or. at 90, 597 P.2d 813. The court correctly refused to give abstract instructions. Willamette-Western Corp. v. Lowry, 279 Or. 525, 534, 568 P.2d 1339 (1977); Ireland v. Mitchell, 226 Or. 286, 292, 359 P.2d 894 (1961). Furthermore, the requested instructions would require a manufacturer to warn the public of "all attendant risks" which could result in harm. Defendant did not have such a broad duty to warn under either a strict product liability or negligence standard. In a strict liability case, defendant must only have warned of an unreasonably dangerous defect. Harris v. Northwest Natural Gas Company, supra, 284 Or. at 576, 588 P.2d 18. Under a negligence standard, the duty to warn is limited to those dangerous propensities of which the manufacturer knows or reasonably should know. McEwen v. Ortho Pharmaceutical, 270 Or. 375, 389, 528 P.2d 522 (1974). Because the requested instructions stated a legal standard more rigorous than is required under either a strict liability or negligence theory, the court properly refused the instructions.

Plaintiff contends that the trial court erred in refusing his instruction on implied warranty for a particular purpose. This contention is without merit. Plaintiff neither pled nor proved a cause of action for breach of an implied warranty of fitness for a...