Docken v. Ciba-Geigy
| Decision Date | 28 August 1987 |
| Docket Number | CIBA-GEIGY |
| Citation | 739 P.2d 591,86 Or.App. 277 |
| Parties | , Prod.Liab.Rep. (CCH) P 11,515 Catherine M. DOCKEN, Personal Representative of the Estate of Terry Vern Docken, Appellant, v., a New York Corporation; Kaiser Foundation Health Plan of Oregon, Inc., an Oregon corporation; Kaiser Foundation Hospitals, Inc.; a California corporation doing business in Oregon; Northwest Permanente, P.C.; Tim Carey, M.D., Respondents. A8505-03039; CA A39177. |
| Court | Oregon Court of Appeals |
Mark M. McCulloch, Portland, argued the cause for appellant. With him on the briefs were Powers, McCulloch & Bennett and David Gernant, Portland.
Susan E. Watts, Portland, argued the cause for respondent Ciba-Geigy Corp. With her on the brief was Kennedy, King & Zimmer, Portland.
John R. Faust, Jr., Portland, argued the cause for respondents Kaiser Foundation Health Plan of Oregon, Inc., Kaiser Foundation Hospitals, Inc., Northwest Permanente, P.C., and Tim Carey, M.D. On the brief were Mildred J. Carmack and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.
Before WARDEN, P.J., and VAN HOOMISSEN and ROSSMAN, JJ.
Plaintiff, personal representative of the estate of her deceased son, brought claims of negligence and strict product liability against the prescribing physician, pharmacy and manufacturer of a drug that allegedly caused her son's death. The claims were dismissed for failure to allege ultimate facts sufficient to constitute claims for relief, and plaintiff appeals. We reverse.
We summarize the facts as stated in the first amended complaint. In November, 1979, the physician (Carey) and pharmacy (Kaiser) 1 provided a drug known as Tofranil for plaintiff's son, Tim. The drug had been manufactured and packaged by defendant Ciba-Geigy (Geigy), which had supplied it to Kaiser. In August, 1983, plaintiff's son Terry ingested several tablets of the drug, hoping that they would remedy a problem similar to that for which they had been prescribed for Tim. Terry died as a result.
As a first claim, on a strict product liability theory, plaintiff alleges that the drug which Kaiser sold and Geigy supplied was dangerous and defective, because of defendants' inadequate labeling and insufficient warnings, particularly:
As a second claim, the complaint alleges that each defendant was negligent in the same particulars as in the strict product liability claim.
We first address plaintiff's negligence claim. The parties agreed at oral argument that the dispositive issue is "duty." Defendants frame the issue as whether a drug manufacturer, pharmacy or prescribing physician owes a duty of care to someone for whom the drug is not prescribed if injuries result from the person's taking the drug.
When they submitted their briefs and at oral argument, the parties were without the benefit of the most recent Oregon Supreme Court opinions discussing the role of "duty" or "no duty" in common law negligence cases. In Donaca v. Curry Co., 303 Or. 30, 32, 734 P.2d 1339 (1987), the court stated:
" 'Duty' plays no affirmative part in a plaintiff's case that does not invoke an obligation arising from or defined by a status, relationship, statute, or other legal source outside negligence law itself; and, unless the plaintiff invokes such a specific legal source, 'no duty' is only a defendant's way of denying legal liability for conduct that might be found in fact to have unreasonably caused a foreseeable risk of harm to an interest of the kind for which the plaintiff claims damages."
In Kimbler v. Stillwell, 303 Or. 23, 26, 734 P.2d 1344 (1987), the court said:
"Unless a plaintiff invokes a particular legal duty arising from a status or relationship or defined by a legal source apart from the common law of negligence itself, 'no duty' is a defense argument that the plaintiff's injury falls outside the foreseeable risks of the alleged negligent conduct, phrased as a legal conclusion for the court rather than as a factual assessment of the foreseeable risks."
Also, in Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987), the court said:
"In short, unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty, the issue of liability for harm actually resulting from defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff."
Plaintiff has not invoked a particular legal duty arising from a status or relationship, statute or other legal source outside negligence law itself. She relies on the common law rules of liability for foreseeable harm caused by defendants' alleged failure to take reasonable care to avoid or minimize the risk of that harm. Similarly, none of the defendants' "no duty" defenses asserts that some rule or status disqualified Terry or his personal representative, individually or as a member of a class, from recovering damages. Defendants' contentions that a person who does not have the status of a patient with a prescription for the drug cannot recover is an argument for a policy, but defendants have failed to point out any legal foundation, distinct from elements of the common law of negligence, for that policy.
Defendants' "no duty" defense is only another way of stating that the harm Terry suffered by using a drug prescribed for his brother was not a foreseeable risk of the conduct alleged as negligence in plaintiff's complaint. See Kimbler v. Stillwell, supra, 303 Or. at 26, 734 P.2d 1344. The role of the court is "to determine whether upon the facts alleged or the evidence presented no reasonable factfinder could decide one or more elements of liability for one or the other party." Fazzolari v. Portland School Dist. No. 1J, supra, 303 Or. at 17, 734 P.2d 1326. We cannot say as a matter of law that the harm was not foreseeable or that the complaint fails to allege facts from which a jury could find defendants negligent. The court erred in dismissing the negligence claim against defendants.
Plaintiff also contends that the court erred in dismissing the strict product liability claim. Strict product liability is defined in ORS 30.920, which provides in part:
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