Cudmore v. Richardson-Merrell, Inc.

• Decision Date: 17 December 1965
• Docket Number: RICHARDSON-MERREL,No. 16638,INC,16638
• Citation: 398 S.W.2d 640
• Parties: John Herbert CUDMORE, Appellant, v., et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 640

398 S.W.2d 640

John Herbert CUDMORE, Appellant, v.RICHARDSON-MERRELL, INC., et al., Appellees.

No. 16638.

Court of Civil Appeals of Texas, Dallas.

Dec. 17, 1965.

Rehearing Denied Jan. 28, 1966.

Witts & Ewing, Wayne E. Lee, Dallas, for appellant.

Jackson, Walker, Winstead, Cantwell & Miller, D. L. Case and Jack Pew, Jr., Dallas, for appellees.

DIXON, Chief Justice.

This is a products liability case.AppellantJohn Herbert Cudmore sued appelleeRichardson-Merrell, Inc., a pharmaceutical manufacturer, alleging that he had sustained physical injuries as a result of taking a drug manufactured by appellee.Appellee's product is known by its trade name of MER-29.Appellant's suit is based on both negligence and implied warranty.

A jury returned a verdict that appellant had suffered damage in the amount of $28,250 due to cataracts on his eyes, flaking of skin and loss of hair.It also found that the use of MER-29 was not a proximate cause of appellant's cataracts or his loss of hair, but that the use of the drug was the cause of the flaking of appellant's skin.In answering other questions the jury made these findings: during the time appellant took MER-29 the drug was not unmerchantable and was not unfit for the purpose for which it was intended; appellee had not failed to make such tests of the drug as a person of ordinary care would have made under the same or similar circumstances; at the time of appellant's purchases appellee did not know facts concerning MER-29 which the purchasing public was entitled to receive in addition to the facts which were made known to the public; appellant's cataracts were the result of 'abreaction' to MER-29;the state of medical knowledge was such that appellee in the exercise of ordinary care could not have anticipated that the drug would cause cataracts in the human eye; appellant's injuries did not result from a lowering of the level of his cholesterol content; and the state of medical knowledge was such that it could not be ascertained that the lowering of the cholesterol level might cause cataracts, loss of hair or flaking skin.

Based on the above verdict judgment was rendered that appellant take nothing by his suit.

FACTS

The statement of facts in this case is more than 1000 pages in length.We shall undertake only a short summary of it.

In January 1960appellant suffered a heart attack which required six weeks hospitalization.Pursuant to his physician's prescription appellant in August 1960 began taking MER-29, a new drug which had been on the market only two months.Appellant took a capsule a day until March 1961 when he discontinued taking the drug.While taking the drug he observed loss of hair and flaking of skin.In the fall of 1961 about four months after he had ceased to take the drug he began to have trouble with his vision.In June 1962he consulted an eye doctor, who disgnosed his trouble as cataracts in both eyes.There is testimony in the record that appellant's cataracts were caused by MER-29.

It is undisputed that in 1956 MER-29 had been synthesized.Afterward it was sent to one of appellee's biological departments for tests on animals, including rats, dogs and monkeys.In 1958 and 1959 it was tested on about 2000 human patients.In December 1959 at a conference in New Jersey sponsored by appellee, doctors and scientists reported that the drug was efficacious in the reduction of cholesterol.There were no reports at the conference of cataracts having been found in any of the patients.In the fall of 1959 a number of laboratory rats developed 'corneal opacity'-not cataracts-but it was not clearly shown that such condition was caused by MER-29.

Having heard from another pharmaceutical company that some of its laboratory dogs were developing cataracts, appellee began in March to renew its experiments with its own dogs.The animals were given enormous dosages of the drug.After six months some of the dogs developed cataracts.Some time thereafter some of appellee's laboratory rats also developed cataracts.In October 1961 a doctor at the Mayo Clinic reported the development of cataracts in two persons taking MER-29.Four days later a similar report came from Houston, Texas.Appellee then requested permission from the United States Food and Drug Department to issue a letter of warning which in December 1961 was sent to 230,000 physicians in the United States.On April 17, 1962appellee addressed a general letter to physicians withdrawing MER-29 from the market.

Some time after appellant ceased to take the drug appellee requested Dr. Ronald M. Burnside, an eye specialist in Dallas, to investigate and report on the frequency of cataracts among patients using MER-29.The doctor testified that his investigation included 86 patients.Five of them had developed cataracts.

OPINION

Special IssuesNos. 2, 4 and 6 inquired of the jury whether MER-29 was a proximate cause of (2)appellant's cataracts; (4) the flaking of appellant's skin; and (6)appellant's loss of hair.To IssuesNos. 2 and 6 the jury answered 'No'.To No. 4 the jury answered 'Yes'.

In connection withe the submission of the above issues the court gave the jury a definition of proximate cause.The definition includes these words: '* * * and which result or some similar result ought reasonably have been foreseen by a person of ordinary care in an appreciable number of persons in the light of the attending circumstances.'

In his fourth, fifth, sixth and seventh points on appeal appellant charges that the court erred in including the element of foreseeability and the phrase 'in an appreciable number of persons' in the above definition, and should have predicated IssuesNos. 2, 4 and 6 on producing cause, not on proximate cause.Producing cause, as appellant describes it in his objections to the charge, is similar to the court's definition of proximate cause except that it omits entirely the element of foreseeability and the phrase 'In an appreciable number of persons'.

We think that foreseeability is properly an element in the law of implied warranty in products liability cases such as the one we have before us on this appeal.

We shall not attempt in this opinion to tract the expanding development of the law of products liability.Though much has been written on the subject and many cases involving products liability have been decided we know of no case exactly in point with the case here.This is not a case in which a foreign substance found its way into a bottled drink; it is not a case involving spoiled food; or a case having to do with a mechanical defect in the design of a piece of machinery.It is undisputed here that MER-29 was a pure unadulterated drug intended for intimate bodily use and that it was used by appellant for the very purpose for which it was intended.It consists of the active ingredient triparanol and the 'vehicle' in which the triparanol is preserved.

In Texas the rule is well established on grounds of public policy that the law of implied warranty is applicable in products liability cases involving food for human consumption regardless of the lack of privity of contract between the manufactuer and the consumer.Jacob E. Decker & Sons, Inc. v. Capps, et al., 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479(1942).The rule is no doubt applicable in a case involving the use of drugs such as MER-29.

In a case such as this the manufacturer is not charged with the burden of absolute liability-the liability of an insurer.The mere fact that injury followed the use of MER-29 is not alone sufficient grounds for recovery.Bateman, 'Products Liability Cases', 27 Tex.Bar Journal, 9, 41; Wade, 'Strict Tort Liability', 19 Southwestern Law Journal, 5, 13, 15.

If the liability of a manufacturer stops short of that of an insurer, where then should the line be drawn marking the limit of his liability?In passing on this question it is to be remembered that this is a case in which appellee pleaded and offered evidence and the jury found that appellant's cataracts were the result of 'abreaction' to MER-29-that appellant belongs to a class of people not appreciable in number who are allergic to the drug.We believe and we hold that in such cases the manufacturer of a drug intended for human consumption or intimate bodily use should be held liable on the grounds of implied warrantly for injurious results only when such results or some similar results ought reasonably to have been foreseen by a person of ordinary care in an appreciable number of persons in the light of the attending circumstances.We believe our holding finds support in the following authorities: Howard v. Avon Products, Inc., 395 P.2d 1007, 1011(Colo.1964);Esborg v. Bailey Drug Co., 61 Wash.2d 347, 378 P.2d 298(1963);Merrill v. Beaute Vues Corp., 235 F.2d 893, 987(10th Cir.1956);Magee v. Wyeth Laboratories, Inc., 214 Cal.App.2d 340, 29 Cal.Rptr. 322(Cal.1963);Ray v. J. C. Penney Co., 274 F.2d 519(10th Cir.1959);Ross v. Philip Morris & Co., 328 F.2d 3(8th Cir.1964);Bennett v. Pilot Products Co., 120 Utah 474, 235 P.2d 525, 527, 26 A.L.R.2d 958(1951);Lartigue v. R. J. Reynolds Tobacco Co., 317 F.2d 19(5th Cir.1963).See alsoBateman, 'Products Liability Cases', 27 Tex.Bar Journal, 9, 41; Wade, 'Strict Tort Liability of Manufacturers', 19 Southwestern Law Journal, 5, 15, 22;Keeton, 'Products Liability-Liability Without Fault', 41 Tex.Law Rev. 855, 864-865, 870.

For additional reasons appellant's complaint that the court erred in refusing to define 'producing cause' and to submit issues predicated thereon cannot be sustained.Appellant did not plead 'producing cause'.He pleaded that his damages were a 'proximate result' of appellee's breach of implied warranty.Further, he did not request issues on 'producing cause' by presenting to the court in writing copies of the requested issues which he desired the court to submit, which request under Rule 273,Texas Rules of Civil Procedure must be...