Crocker v. Winthrop Lab., Div. of Sterling Drug, Inc., B--4440

Citation514 S.W.2d 429
Decision Date02 October 1974
Docket NumberNo. B--4440,B--4440
PartiesClarissa CROCKER, Individually and on behalf of the Estate of Glenn E. Crocker, Deceased, Petitioner, v. WINTHROP LABORATORIES, DIVISION OF STERLING DRUG, INC., Respondent.
CourtSupreme Court of Texas

Page 429

514 S.W.2d 429
Clarissa CROCKER, Individually and on behalf of the Estate
of Glenn E. Crocker, Deceased, Petitioner,
No. B--4440.
Supreme Court of Texas.
Oct. 2, 1974.
Rehearing Denied Oct. 30, 1974.

W. Page Keeton, Austin, Malcolm McGregor, El Paso, for petitioner.

Scott, Hulse, Marshall & Feuille, Schuyler B. Marshall, El Paso, Rodney, Dickason, Sloan, Akin & Robb, Jackson D. Akin, Albuquerque, N.M., for respondent.

REAVLEY, Justice.

Glenn E. Crocker became addicted to a new drug produced by Winthrop Laboratories and known as 'talwin' which had been previously thought to be non-addictive. When he was in a weakened condition and his tolerance to drugs very low because of a period of detoxification, Crocker obtained an injection of a narcotic and died soon thereafter. His widow and representative, Clarissa Crocker, brought this action for damages due to his suffering while alive as well as for his wrongful death. She recovered judgment against Winthrop Laboratories in the trial court. The Court of Civil Appeals reversed and rendered judgment for the drug company, holding that while some of the facts found by the jury (including the positive misrepresentation

Page 430

by the drug company that talwin was non-addictive) would warrant the recovery, the additional finding that the drug company could not reasonably have foreseen Crocker's addiction (because of his unusual susceptibility and the state of medical knowledge when the drug was marketed), constituted a complete defense. 502 S.W.2d 850. We hold that the latter finding does not bar the recovery, and we affirm the judgment of the trial court.

In July of 1967 Glenn Crocker suffered a double hernia, as well as frostbite of two fingers, while working as a carpenter in a cold storage vault. He was then 49 years old and was not a user of drugs or alcohol. His hernia was successfully repaired. The circulation of blood in his fingers, however, was not restored. Skin grafts were done on the fingers in October, but it was necessary to amputate part of his thumb in November and part of his middle finger the following January (1968). Prior to November 23, 1967, when Dr. Mario Palafox amputated part of his thumb, the several doctors who had treated him had prescribed both demerol (a narcotic) and talwin for relief of pain without observing any cause to believe him to be then addicted to any drug. Crocker told Dr. Palafox that he liked the relief he received from talwin, and Dr. Palafox responded that this was fortunate because talwin had no addicting side effect.

Crocker did develop an addiction to talwin, however, and was able to obtain prescriptions from several doctors as well as to cross the Mexican border to Juarez and acquire the same drug without a prescription under the name of 'sosigon.' He was hospitalized on June 3, 1968 by a psychiatrist, Dr. J. Edward Stern, for a process of detoxification (to remove the toxic agents in his body) and treatment of his drug dependency. After six days in the hospital being withdrawn from talwin as well as all narcotics, and at a time when his tolerance for potent drugs was very low, Crocker walked out of the hospital and went to his home. Because of his agitated condition and the threats he made against his wife, he was finally successful in having her call Dr. Eugene Engel who, on June 10, 1968, came to the Crocker home and gave Mr. Crocker an injection of demerol. Crocker went to his bed for the last time.

Winthrop Laboratories first put talwin on the market in July of 1967 after extensive testing and approval by the Federal Drug Administration. The descriptive material on the new drug circulated by Winthrop Laboratories in 1967 gives no warning of the possibilities of addiction. There is a heading of a paragraph in the product information of the 1967 edition of Physicians' Desk Reference Book which reads: 'Absence of addiction liability.' This might be considered misleading, but in view of the evidence of verbal assurances as to the properties of talwin by the drug company's representative, there is no need to deal further with the printed materials. Dr. Palafox, a prominent orthopedic surgeon in El Paso, allowed Crocker to have liberal use of talwin and assured him that it was non-addictive because of the assurance by a representative of the drug company who had detailed the doctor on the nature of the drug. There had been an extended and specific conversation between the drug company representative and Dr. Palafox about talwin, and Dr. Palafox was told that talwin was as harmless as aspirin and could be given as long as desired. Dr. Palafox testified that the representative of the defendant insisted that talwin could have no addicting effect.

Subsequent experience has proved that talwin is an extremely useful drug for the relief of pain but that it cannot be regarded as non-addictive. Doctors Palafox and Stern had seen other patients dependent upon talwin. Dr. Arthur S. Keats, chairman of the Department of Anesthesiology at Baylor...

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