Gottsdanker v. Cutter Laboratories

• Citation: 6 Cal.Rptr. 320,79 A.L.R.2d 290,182 Cal.App.2d 602
• Court: California Court of Appeals
• Decision Date: 12 July 1960
• Parties: , 79 A.L.R.2d 290 Anne Elizabeth GOTTSDANKER, a minor, by and through her Guardian ad Litem, Robert M. Gottsdanker, and Robert M. Gottsdanker, Plaintiffs, Respondents and Appellants, v. CUTTER LABORATORIES, a California corp., and City Pharmacy of Santa Barbara, Defendants, Appellants and Respondents. James Randall PHIPPS, a minor, by and through his Guardian ad Litem, Melvin M. Belli, Charles A. Phipps and Elizabeth Phipps, Plaintiffs, Respondents and Appellants, v. CUTTER LABORATORIES, a California corp., Defendant, Appellant and Respondent. Civ. 18413, 18414.

Page 320

6 Cal.Rptr. 320

182 Cal.App.2d 602, 79 A.L.R.2d 290

Anne Elizabeth GOTTSDANKER, a minor, by and through her Guardian ad Litem, Robert M. Gottsdanker, and Robert M. Gottsdanker, Plaintiffs, Respondents and Appellants, v. CUTTER LABORATORIES, a California corp., and City Pharmacy of Santa Barbara, Defendants, Appellants and Respondents.

James Randall PHIPPS, a minor, by and through his Guardian ad Litem, Melvin M. Belli, Charles A. Phipps and Elizabeth Phipps, Plaintiffs, Respondents and Appellants, v. CUTTER LABORATORIES, a California corp., Defendant, Appellant and Respondent.

Civ. 18413, 18414.

District Court of Appeal, First District, Division 2, California.

July 12, 1960.

Rehearing Denied Aug. 11, 1960.

Hearing Denied Sept. 7, 1960.

Belli, Ashe & Gerry, San Francisco, for plaintiffs.

Moses Lasky, Robert S. Daggett, Brobeck, Phleger & Harrison, Sedgwick, Detert, Moran & Arnold, San Francisco, for defendants.

Max Thelen, Jr., Paul R. Haerle, Thelen, Marrin, Johnson & Bridges, San Francisco, amici curiae in support of contentions of the plaintiffs.

William Barclay Lex, Philadelphia, Pa., Peart, Baraty & Hassard, Howard Hassard, San Francisco, Paul L. O'Brien, Arthur B. Hanson, Washington, D. C., John K. Worley, Detroit, amici curiae in support of contentions of the defendants.

DRAPER, Justice.

Two children contracted poliomyelitis shortly after being inoculated with Salk vaccine manufactured by defendant. On the premise that defendant's vaccine caused the illness it was designed to prevent, an action for damages was brought in behalf of each child. The actions were consolidated for trial. Jury verdicts were in favor of the two children for a total of $139,000, and for their parents for $8,300 in special damages.

There is substantial evidence to sustain a finding that the vaccine contained live virus of poliomyelitis, and that the injected vaccine caused the disease in each child. The essence of plaintiffs' claim is not that the vaccine failed to prevent polio, but that it actually and directly caused it.

Three causes of action were submitted to the jury in each case. One was in negligence, one for breach of an implied warranty of merchantability and one for breach of implied warranty of fitness for the intended purpose. But only two forms of verdict were presented to the jury in each case, one for the plaintiff generally, without separation of the causes of action, and one for the defendant.

In returning its verdicts for plaintiffs, however, the jury drew a thoughtful and careful statement, setting forth that the jury had first considered the issue of negligence, and had 'from a preponderance of the evidence concluded that the defendant, Cutter Laboratories, was not negligent either directly or by inference.'

'With regard to the law of warranty, however, we feel that we have no alternative but to conclude that Cutter Laboratories came to market * * * vaccine which when given to plaintiffs caused them to come down with poliomyelitis, thus resulting in a breach of warranty. For this cause alone we find in favor of plaintiffs.'

In accordance with this jury statement, judgments were entered in favor of plaintiffs on the two causes of action for breach of implied warranty, and in favor of defendant on the counts for negligence. Defendant appeals from the judgments against it. Plaintiffs appeal from the judgments against them on the causes of action for negligence, asserting that the jury's written statement must be disregarded as surplusage, leaving only the signed verdict forms in favor of plaintiffs on the complaints generally, and that the evidence is insufficient to support verdicts against plaintiffs on the issue of negligence.

Defendant's appeal squarely presents the question whether implied warranties of merchantability and of fitness apply under the facts of this case.

The vaccine administered to each child was purchased by a doctor from a pharmacy in a sealed bottle or ampule. In one case the hypodermic injection of the vaccine was made by a doctor, in the other by a nurse under a doctor's direction. Neither doctor was joined as a defendant. One pharmacy was joined, but later dismissed. Thus the judgments are against defendant pharmaceutical manufacturer only.

A principal question is whether defendant manufacturer can be liable upon implied warranty in the absence of direct sale from it to plaintiffs. Historically, liability in implied warranty sounds in tort, and it can be reasoned that the true basis of such recovery now lies in tort, rather than contract (see Prosser on Torts, 2d ed., 493). Nonetheless, 'privity of contract' (i. e., direct sale from defendant to plaintiff) remains a requirement for implied warranty liability in substantially all American jurisdictions. This rule is followed in California as to most manufactured products (Burr v. Sherwin-Williams Co., 42 Cal.2d 682, 268 P.2d 1041), although the modern trend is to modify the strictness of the requirement in some situations (Peterson v. Lamb Rubber Co., 54 Cal.2d 339, 5 Cal.Rptr. 863. However, where the product is food for human consumption, a number of jurisdictions have recognized an exception to the privity requirement. In such cases, it is held that the manufacturer or initial seller may be held liable to the ultimate consumer even though there have been intermediate sales by one or more dealers. Although this is the minority rule, it is followed in some 15 to 18 states. Prosser on Torts, 2d ed., 508-9; 1 Williston on Sales, rev. ed., 647-8.

California clearly accepted this exception in 1939. Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 272, 93 P.2d 799. The court flatly rejected the contention that an implied warranty in food cases runs 'only from an immediate seller to an immediate buyer.' The court reviewed cases from other jurisdictions and pointed out that varying theories are advanced in support of the exception. Klein particularly emphasizes the public policy of requiring that only wholesome food be sold for human consumption. The rule continues to be followed in California. Vaccarezza v. Sanguinetti, 71 Cal.App.2d 687, 163 P.2d 470.

In view of the established California rule that the consumer of a food product may recover from the manufacturer upon implied warranty, is there any reason to apply a different rule to the vaccine here involved? We think not. The vaccine is intended for human consumption quite as much as is food. We see no reason to differentiate the policy considerations requiring pure and wholesome food from those requiring pure and wholesome vaccine. Some significance may attach to the fact that Klein (14 Cal.2d at page 277, 93 P.2d at page 801) quotes a decision (Rachlin v. Libby-Owens Ford Glass Co., 2 Cir., 96 F.2d 597, 600) which states that the privity exception extends to 'medicines and foodstuffs'. Klein also relies upon the several pure food and drug acts as indicating the public policy which underlies the rule. We can conceive of no reason for applying the rule to foodstuffs which does not equally extend to drugs. The vaccine here involved is, like food products, designed solely for introduction into the body of a human being.

The fact that the entry is made by injection rather than ingestion in no way alters the premise that each is for humand consumption--each enters the human system. In fact, the digestive system has means of rejecting or minimizing the effects of many toxic compounds taken orally. Such defenses are much less available as against harmful elements introduced into the system by hypodermic injection.

We find no decision directly upon the point. Defendant cites trial court decisions from other jurisdictions (Russo v. Merck & Co., D.C., 138 F.Supp. 147; Wechsler v. Hoffman-La Roche, Inc., 198 Misc. 540, 99 N.Y.S.2d 588; Dumbrow v. Ettinger, D.C., 44 F.Supp. 763) holding that blood plasma or drugs are within the privity requirement. But all these jurisdictions apply the requirement of privity in all implied warranty cases, without exception. Thus, these decisions are of no aid here, where the real question is whether the food exception reasonably should apply to vaccine.

In this jurisdiction which holds that the implied warranties run with food products to the ultimate consumer we find no reason to exclude drugs from the rule. We have no hesitance in holding that the absence of privity does not bar recovery on implied warranty from the manufacturer of the vaccine here in issue.

Defendant, however, contends that even if privity is not required, there can be an actionable implied warranty only if the plaintiff is himself a purchaser. It says that in the absence of a sale to and a purchase by the plaintiff, there is no 'vehicle to carry an implied warranty' by the manufacturer. Upon this premise, it cites cases from other jurisdictions for the rule that the furnishing of blood by a hospital carries no implied warranty because it constitutes a rendition of service, and not a sale of the blood. Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792; Gile v. Kennewick Public Hospital District, 48 Wash.2d 774, 296 P.2d 662, 59 A.L.R.2d 761. The latter case is not strong, because the true claim of plaintiff was that the hospital had been negligent in typing the blood of the decedent. Thus recovery was barred by the Washington statute exempting hospital districts from liability for negligence Perlmutter, however, does stand for the proposition urged. Defendant next argues, by analogy, that the transaction between doctor and plaintiff in each of our cases is not a sale. We are more ready to accept the analogy than the basic argument. In any event, we assume that there was no sale of defendant's vaccine from the doctor who administered or supervised the inoculation to either plaintiff herein. However, we cannot agree that this disposes of the case.

It seems clear that the implied warranties of fitness and of merchantability are enforceable only...