Gravis v. Abbott Laboratories

• Decision Date: 30 December 1970
• Docket Number: No. 546,546
• Citation: 462 S.W.2d 410
• Parties: C. K. GRAVIS, Jr., et ux., Appellants, v. ABBOTT LABORATORIES et al., Appellees.
• Court: Texas Court of Appeals

Page 410

462 S.W.2d 410

C. K. GRAVIS, Jr., et ux., Appellants, v. ABBOTT LABORATORIES et al., Appellees.

No. 546.

Court of Civil Appeals of Texas,

Corpus Christi.

Dec. 30, 1970.

Two Motions for Rehearing Denied Jan. 28, 1971.

Sidney P. Chandler, Corpus Christi, for appellants.

Allison, Maddin, White & Brin, Ronald Brin, Corpus Christi, for Winthrop Labs. and Sterling Drugs.

Perkins, Davis, Oden & Warburton, Kenneth Oden, Alice, for Abbott Labs.

SHARPE, Justice.

OPINION

This appeal is from a summary judgment that plaintiff C. K. Gravis, Jr., and wife, Elma Gravis, appellants here, take nothing against the defendants Abbott Laboratories, Incorporated, Parke, Davis & Company, a corporation, Winthrop Laboratories, Inc., and Sterling Drug, Inc., appellees here.

This is a drug products liability case arising out of medical treatment received by Elma Gravis while she was a patient in the Physicians and Surgeons Hospital of Alice, Texas, on October 24, 1963. Plaintiffs filed a motion for partial summary judgment which was overruled by the court. The motions of all defendants for summary judgment in their favor was granted.

Appellants assert four points of error. The first two points complain of the granting of defendants' motions for summary judgment. Point three asserts that the trial court erred in sustaining objections and motions to quash directed to plaintiffs' requests for admissions by Abbott Laboratories, Parke, Davis & Co., and Winthrop Laboratories; but that point has not been briefed and will not be further considered. Point four complains of the refusal of the trial court to sustain plaintiffs' motion for partial summary judgment.

Prior to filing of the instant case, plaintiffs on September 28, 1964 brought a malpractice suit in the district court of Jim Wells County, Texas, against defendants other than those in this products liability case with the exception of Abbott Laboratories, Incorporated, whose position with reference to the prior suit will hereafter in some respects be separately considered. In the Jim Wells County suit, the trial court rendered summary judgment for all of the defendants, which was affirmed by the San Antonio Court of Civil Appeals. Gravis v. Physicians & Surgeons Hospital of Alice, 415 S.W. 674. The Supreme Court of Texas on April 5, 1967 reversed the judgments of the lower courts and remanded the case for conventional trial except as to Abbott Laboratories and Sterling Drug, Inc. As to Abbott the summary judgment was affirmed. As to Sterling the dismissal of its petition in intervention was affirmed. Gravis v. Physicians & Surgeons Hospital of Alice, 427 S.W.2d 310. The Jim Wells County case was thereafter settled by the defendants in that case (except Abbott) paying plaintiffs $75,625.00 and the suit was dismissed with prejudice on January 24, 1969. The instant suit was filed in the district court of Nueces County, Texas, on October 18, 1965 and after settlement of the prior suit was activated.

The factual background of plaintiffs' suits is set out in the above-mentioned reported decisions in the Jim Wells County case except that plaintiffs' drug product liability claims based upon strict liability in tort were not there involved. The introductory statement of the Supreme Court appearing at 427 S.W.2d 310, 311 is in part as follows:

'This a malpractice suit instituted by C. K. Gravis, Jr., and wife, Elma Gravis, petitioners, against Physicians and Surgeons Hospital of Alice, Dr. Philip S. Joseph, Dr. J. C. Turnham and Mrs. Ruth Grose, respondents. The trial court rendered a summary judgment for respondents, and the Court of Civil Appeals affirmed. 415 S.W.2d 674. We reverse the judgments of the courts below and remand the cause to the district court.

'On the evening of October 22, 1963, Mrs. Gravis complained of pain in her abdomen. Her husband telephoned Dr. Joseph, who agreed to and did meet them at the Physicians and Surgeons Hospital of Alice, a corporation, hereinafter referred to as the hospital. Dr. Joseph examined Mrs. Gravis in the emergency room of the hospital. This initial examination revealed generalized tenderness in the abdominal area but did not enable the doctor to reach any conclusion as to the probable cause of the patient's complaints. Mrs. Gravis was given medicine for pain and placed in a room in the hospital for observation. The following day she was given other examinations and tests. According to Dr. Joseph, the X-rays taken at that time showed a normal abdomen with no pathology indicated.

'The situation had changed by the morning of October 24th. Mrs. Gravis' blood count was up, and X-rays taken that morning showed some dilation of the small intestine. Dr. Joseph then concluded for the first time that an exploratory operation was necessary. He performed the operation at about 12:30 o'clock p.m. the same day. Dr. Turnham was the assisting physician, and Mrs. Grose, who was employed by the hospital as anesthetist and supervisor of nurses, administered the spinal anesthetic and the pentathol sodium which Mrs. Gravis was given during the operation. An intestinal obstruction was found and corrected, but Mrs. Gravis has since suffered from a number of physical disabilities, including bladder trouble, phlebitis of the left leg, and partial paralysis.'

The summary judgment record in this case is voluminous. It contains over five hundred pages, including the transcript herein and the pleadings, affidavits and exhibits which have been brought forward from the Jim Wells County case. In the interest of desired brevity we must necessarily omit many details, particularly those relating to the medical aspects of the matter which might throw additional light on the case.

In the instant case the plaintiffs' asserted cause of action is in substance that Mrs. Gravis sustained personal injuries produced by the injection into her of a spinal anesthetic composed of novocaine and dextrose manufactured and sold by the defendants Winthrop Laboratories, Inc. and Sterling Drug, Inc., and adrenalin manufactured and sold by Parke, Davis & Co., which spinal anesthetic was supplemented by the intravenous injection of pentothal sodium (in a saline solution) manufactured and sold by Abbott Laboratories, Incorporated. Plaintiffs' cause of action is primarily based upon the theory of strict liability in tort as stated in Section 402A of the American Law Institute Restatement of the Law of Torts (2d Ed.) as adopted by the Texas Supreme Court.

The rule of 'strict liability' as to non-food or consumable products was adopted by the Texas Supreme Court in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.1967). The Court based its decision on the provisions of Section 402A of the Restatement of the Law--Torts, Second. In the more recent case of Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546 (Tex.Sup.1969), involving the alleged explosion of a defective coca-cola bottle, the Supreme Court in discussing the development of the rule in Texas said:

'This court has not heretofore applied the rule of strict liability in exploding bottle cases. Indeed, our approach to use of the rule for imposing liability on sellers of products has been gradualistic and marked with caution. Some twenty-seven years ago, we adopted the rule as a means of fixing liability on manufacturers and packagers of food products for human consumption, Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942), and on retail purveyors thereof, Griggs Canning Co. v. Josey, 139 Tex. 623, 164 S.W.2d 835, 142 A.L.R. 1424 (1942); but a decade later we questioned the wisdom of applying the rule to retailers of food products, canned or packaged by others, and we refused to apply it to wholesalers of such products. Bowman Biscuit Co. of Texas v. Hines, 151 Tex. 370, 251 S.W.2d 153 (1952). Then, in 1956, with the question squarely presented, we refused to grant a writ in Brown v. Howard, 285 S.W.2d 752 (Tex.Civ.App.--San Antonio, 1956, writ ref'd n.r.e.), and thus refused to apply the rule to a manufacturer of a spray causing harm when used on the plaintiff' cattle.

In 1967, we finally yielded to the irrefutable logic that the rule of strict liability is the only practical vehicle for protecting the public against harm so often encountered by innocent users and consumers of defective products. We abruptly changed direction. In McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.1967), we applied the rule against a distributor of a permanent wave lotion which proved harmful when applied to a woman's hair and scalp. In that case, we committed the court to the rule of strict liability expressed in Section 402A of the American Law Institute's Restatement of the Law of Torts (2d Ed.) as applicable to all persons engaged in the business of selling who sell a product in a defective condition which renders it unreasonably dangerous to a user or consumer or to his property. The necessary effect of McKisson was to disapprove prior contrary expressions of the law as announced in Bowman Biscuit Co. v. Hines, supra, and Brown v. Howard, supra. Thereafter, we expressly disapproved Brown v. Howard, and approved a holding of a court of civil appeals that a seller of a defective product is 'subject to strict liability for damage caused to the property of the ultimate consumer.' (O. M.) Franklin Serum Co. v. C. A. Hoover & Son, 418 S.W.2d 482 (Tex.Sup.1967). More recently, we have extended the rule to sellers of defective products which cause harm to non-users and non-consumers. Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.1969). We perceive no sound reason why the rule should not be applied to bottlers.

The prime requirement for imposing liability on a seller under the rule of strict liability is proof by the plaintiff that he was injured because of a defective condition in the product when it left the hands of the particular seller. Jack Roach-Bissonnet, Inc. v. Puskar, 417 S.W.2d...