Brecher v. Cutler

• Decision Date: 30 July 1990
• Citation: 578 A.2d 481,396 Pa.Super. 211
• Parties: , Prod.Liab.Rep. (CCH) P 12,566 David BRECHER and Janice Brecher, his Wife, Appellants, v. Jack CUTLER and Searle Pharmaceutical, Inc.
• Court: Pennsylvania Superior Court

Page 481

578 A.2d 481

396 Pa.Super. 211, Prod.Liab.Rep. (CCH) P 12,566

David BRECHER and Janice Brecher, his Wife, Appellants, v. Jack CUTLER and Searle Pharmaceutical, Inc.

Superior Court of Pennsylvania.

Argued June 7, 1990.

Filed July 30, 1990.

[396 Pa.Super. 213] David N. Rosen, Philadelphia, for appellants.

Murray S. Levin, Philadelphia, for Searle, appellee.

Before CAVANAUGH, TAMILIA and CERCONE, JJ.

TAMILIA, Judge:

Appellants David Brecher and Janice Brecher, his wife, bring this appeal from the Order dated December 4, 1989, granting summary judgment to appellee Searle Pharmaceuticals, Inc. (now merged into and known as G.D. Searle & Co.), one of two defendants in the case. Appellants instituted this action on May 10, 1985 to recover damages for injuries allegedly sustained as a consequence of Mrs. Brecher's use of the Cu-7 copper contraceptive IUD, (Cu-7), manufactured by Searle. The basis of appellants' complaint was that Mrs. Brecher had been unable to become pregnant as a result of pelvic infection and adhesions caused by the Cu-7.

The facts which gave rise to this appeal may be summarized as follows from the Opinion of the trial court:

Mrs. Brecher had a Cu-7 inserted by her gynecologist, Dr. Cutler, on January 8, 1980, approximately three weeks after undergoing an abortion. She reported no problems with the Cu-7. On a follow-up visit, Dr. Cutler discovered that it had fallen out of position. It was removed and a second one inserted one week later. Mrs. Brecher wore that Cu-7 without problem until June, 1981. The Cu-7 was removed, not for any medical reason but because she had begun dating Mr. Brecher, who had had a vasectomy eight years earlier.

Plaintiffs were married to each other in June, 1982. As they desired to have children, Mr. Brecher underwent surgery to attempt a reversal of the vasectomy. His fertility was not restored, however, as reflected by a low sperm count and poor sperm motility.

In December, 1983, Mrs. Brecher began medical evaluation of her fertility by Dr. Ronald Traum. His evaluation revealed a problem with cervical mucus and an abnormal ovulatory pattern, neither of which were related to the Cu-7. In February, 1984 Mrs. Brecher underwent a laparoscopy which revealed a pelvic infection and adhesions surrounding her fallopian tubes, prohibiting pregnancy. The Brechers claim this was caused by the Cu-7. Dr. Traum informed the Brechers that surgery could lyse the adhesions but that, unless Mr. Brecher's sperm motility could be improved, he would not recommend it. Mrs. Brecher chose not [to] have the surgery.

Following the commencement of this suit and after the close of discovery, both Dr. Cutler and Searle moved for summary judgment as to liability. The undersigned granted this motion only as to Searle. Plaintiffs filed this timely appeal.

(Slip Op., Lawrence, J., 1/25/89, pp. 1-2.)

The basis of appellants' suit against Searle was, first, Searle failed to adequately warn Dr. Cutler of the hazards associated with the use of the Cu-7 or, in the alternative, their aggressive promotion of the contraceptive overrode the warnings, and second, Searle failed to warn Mrs. Brecher directly of the possible complications she could suffer from using the Cu-7. The trial court, following the "learned intermediary" doctrine, found Searle owed no duty to Mrs. Brecher and it had provided Dr. Cutler with both the physician's insert and the patient brochure as required by federal regulations, stating the appropriate warnings and precautions.

Appellants contend the court erred in granting summary judgment to Searle because the record indicates there is a genuine issue of material fact for the jury, as factfinder, to decide. They argue the court repeatedly refers to the lack of "evidence" and that the court, in essence, is admitting there is something to submit to a jury. They go on to say, "[i]t is not the function of the summary judgment to eliminate Appellant's right to try the case if it can show or argue successfully the negligence or culpability of the Appellee. Thus, it is conceivable that literature not yet produced because that is "evidence" will support Appellant's claim...." (Brief of Appellants, p. 8.) For the reasons that follow, we disagree with appellants and affirm the Order granting summary judgment to appellee.

The pertinent sections of Pa.R.C.P. 1035, Motion for Summary Judgment, are as follows:

(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.

(b) The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

. . . . .

(d) Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the signer is competent to testify to the matters stated therein.... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

While appellants are not required to present their entire case in opposing a motion for summary judgment, they cannot rest upon mere allegations in the pleadings but must present depositions, affidavits, or other acceptable documents which show there is a genuine issue of material fact to submit to the factfinder and the moving party is not entitled to judgment as a matter of law. "Bold unsupported assertions of conclusory accusations cannot create genuine issues of material fact." McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313-14 (1988).

We note initially that when reviewing an entry of summary judgment, an appellate court may disturb the order of the trial court only where there has been an error of law or a clear abuse of discretion. To uphold a summary judgment, there must not only be an absence of genuine factual issues, but also an entitlement to judgment as a matter of law. The trial court must examine the record in a light most favorable to the non-moving party and accept as true all well-pleaded facts in the non-moving party's pleadings.

Green v. K & K Insurance Co., 389 Pa.Super. 73, 74, 566 A.2d 622, 623 (1989) (citations omitted).

This is not the first time a plaintiff has argued that summary judgment was inappropriate because certain evidence could have been brought out at trial. In Roland v. Kravco, Inc., 355 Pa.Super. 493, 513 A.2d 1029 (1986), plaintiff fell in defendants' parking lot and commenced an action in trespass to recover for her injuries. Defendants filed motions for summary judgment claiming plaintiff did not set forth facts showing the parking lot was in a dangerous condition at the time of her fall. The trial court granted the motions and plaintiff appealed. This Court reviewed the deposition of plaintiff which was the only evidence as to how the accident occurred. We agreed with the trial court that plaintiff failed to present facts showing there was a genuine issue for a jury to consider and defendants were not entitled to summary judgment as a matter of law.

The appellants contend that the court below erred in placing the burden of proof upon them to set forth facts showing that a genuine issue of material fact exists. However, as provided for in Pa.R.C.P. 1035(d) the non-moving party in his response to a properly supported motion for summary judgment must in the response "by affidavits or as otherwise provided in this rule, ... set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate shall be entered against him." The appellant admitted that she did not see any ice or icy ridges on the parking lot surface, notwithstanding that she was looking at the ground at the time that she fell, and that she did not know what caused her to slip. Since by her own statements she did not observe any ice when she fell, she had the obligation to show by affidavit or otherwise that there were icy ridges or elevations which caused her to fall. On appeal, the appellant...