Griffith v. Blatt

• Jurisdiction: Oregon
• Parties: Patricia E. GRIFFITH, Appellant, and Paddy O. Griffith, Plaintiff, v. Philip E. BLATT, M.D.; and Reed & Carnick, a division of Block Drug, Inc., a foreign corporation, Defendants, and William A. Stout, doing business as Hollywood Prescriptions; and Rugby Laboratories, Inc., a foreign corporation, Respondents. 9502-01211; CA A93458.
• Citation: 973 P.2d 385,158 Or.App. 204
• Court: Oregon Court of Appeals
• Decision Date: 03 February 1999

Page 385

973 P.2d 385

158 Or.App. 204

Patricia E. GRIFFITH, Appellant and Paddy O. Griffith, Plaintiff, v.Philip E. BLATT, M.D.; and Reed & Carnick, a division of Block Drug, Inc., a foreign corporation, Defendants and William A. Stout, doing business as Hollywood Prescriptions and Rugby Laboratories, Inc., a foreign corporation, Respondents.

9502-01211; CA A93458.

Court of Appeals of Oregon.

Argued and Submitted on April 14, 1998.

Decided Feb. 3, 1999.

Lindsey H. Hughes, Portland, argued the cause for appellant.With her on the brief was Hallmark, Keating & Abbott, P.C.

G. Kenneth Shiroishi, Portland, argued the cause for respondentWilliam A. Stout, doing business as Hollywood Prescriptions.With him on the brief were Joan O'Neill and Dunn, Carney, Allen, Higgins & Tongue.

Franklin Hunsaker, Portland, argued the cause for respondentRugby Laboratories, Inc.With him on the brief were Ronald E. Bailey, Marilyn E. Litzenberger, and Bullivant, Houser, Bailey, Pendergrass & Hoffman.

Before De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.

HASELTON, J.

Plaintiff¹ appeals, assigning error to the granting of summary judgment against her products-liability based claims against defendantsRugby Laboratories, Inc., the manufacturer of Lindane lotion, and William Stout, dba Hollywood Prescriptions, a pharmacist who filled plaintiff's prescription for Lindane lotion.²The trial court concluded that plaintiff's strict liability claims against Rugby and Stout were barred by the two-year general statute of limitations for product liability civil actions, ORS 30.905(2), and that her claim against Stout for negligent failure to warn did not state a legally cognizable claim.We conclude that plaintiff's claim against Rugby is time-barred; that her strict liability claim against Stout is precluded under the "learned intermediary" doctrine; and that, with respect to negligent failure to warn, plaintiff failed to controvert Stout's proof that he had not breached the standard of care.Consequently, we affirm.

Viewing the summary judgment record most favorably to plaintiff as the nonmoving party, Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608(1997), the material facts are as follows:

On February 26, 1993, plaintiff visited Dr. Philip Blatt, seeking treatment for a skin condition.Blatt gave plaintiff a prescription for two ounces of Lindane, one percent lotion, instructing the pharmacist to fill the prescription and to type "As directed" on the label.Plaintiff took that prescription to Stout, who filled the prescription, placing the lotion in a plain prescription bottle which bore generic "For external use only" and "Shake well" labels.In accordance with Blatt's instructions, Stout typed the notation "As directed" on the prescription label and affixed that label to the bottle.The bottle bore no other instructions or warnings.There is no evidence that Stout gave plaintiff any verbal instructions or warnings concerning the lotion including, particularly, any warnings pertaining to frequency or duration of use.

Plaintiff applied the lotion over her entire body once a day, after her daily shower for five or six days until she had used the entire bottle.After each application, plaintiff did not shower for the next 24 hours.Properly used, Lindane lotion should be applied no more than two times and should be washed off within 12 hours after any application.

Within a week to two weeks after beginning to use the Lindane lotion, plaintiff began to suffer medical problems, including convulsions, dizziness, weight loss, hair loss, sleep disturbance, and cognitive disfunction.On June 10, 1993, plaintiff watched a segment of the television program "Good Morning America," which featured a report about a child who had suffered convulsions after overexposure to Lindane lotion.Immediately after that program, plaintiff retrieved her empty bottle of Lindane lotion and told her husband, "This is the same stuff."In August 1993, plaintiff consulted with a physician, who diagnosed her symptoms to be the result of central nervous system toxicity due to overexposure to Lindane lotion.

On February 23, 1995, plaintiff filed her original complaint, naming as defendants Blatt, Stout and Reed & Carnick, whom she mistakenly believed had manufactured the Lindane lotion.That complaint alleged: (1) a strict liability claim against Reed & Carnick, alleging that Lindane lotion was unreasonably dangerous in that it was sold without adequate instructions "reasonably calculated to reach the ultimate user" regarding its safe use or warnings that its use could lead to central nervous system toxicity and related health problems; (2) a medical malpractice claim against Blatt for, inter alia, prescribing the Lindane lotion and for failing to warn plaintiff of the dangers of its overuse; and (3) a negligence claim against Stout for failing to instruct plaintiff on the proper use of Lindane lotion and to warn her of the dangers of its overuse.

Plaintiff subsequently discovered that Rugby, not Reed & Carnick, was the manufacturer of the Lindane lotion that she had received and, consequently, dismissed Reed & Carnick.On July 21, 1995, plaintiff filed an amended complaint.That amended complaint named Rugby as a defendant, asserting the same strict liability/failure to warn allegations that had been directed against Reed & Carnick.The amended complaint also alleged a strict liability claim against Stout, in addition to the original negligence claim.Those allegations were reiterated in plaintiff's second amended complaint, which was the object of Stout's summary judgment motion.³

On October 24, 1995, Stout moved for summary judgment or, in the alternative, to dismiss plaintiff's claims against him.Stout asserted that plaintiff's strict liability claim against him was time-barred because it was first alleged more than two years after plaintiff had experienced her symptoms within days of using the product--and, indeed, more than two years after the June 10, 1993, "Good Morning America" program.SeeORS 30.905(2)⁴;Dortch v. A.H. Robins Co., Inc., 59 Or.App. 310, 650 P.2d 1046(1982)(applying "discovery rule" to product liability civil actions).Stout further asserted that both the strict liability claim and the negligence claim against him (whose timeliness he did not dispute) were precluded, as a matter of law, by the "learned intermediary" doctrine.SeeMcEwen v. Ortho Pharmaceutical, 270 Or. 375, 385-86, 528 P.2d 522(1974)(describing doctrine).While acknowledging that the question was unresolved in Oregon, Stout emphasized that most of the jurisdictions that had addressed the issue had concluded that, under the so-called "learned intermediary" doctrine, pharmacists could not be held either strictly liable or liable in negligence for failure to warn with respect to prescription drugs.

The trial court granted Stout's motion for summary judgment against both claims.The court determined that the strict liability claim was time-barred ⁵ and that the negligent failure to warn claim was barred by the "learned intermediary" doctrine.

In April 1996, Rugby moved for summary judgment, arguing inter alia that plaintiff had failed to bring her strict liability claim against it within the two-year statute of limitations.ORS 30.905(2).Like Stout, Rugby contended that plaintiff's strict liability claim accrued no later than the date she saw the "Good Morning America" program and that claimant had failed to bring that claim within two years of that date.Plaintiff opposed the motion, arguing only that conduct by defense counsel had resulted in a "procedural delay" that prevented her from timely filing her claim against Rugby and that, in all events, she did not actually discover that Rugby was the source of the Lindane lotion until her husband received certain information from the federal Food and Drug Administration in March 1996.⁶The trial court rejected plaintiff's arguments and agreed with Rugby that the claim accrued by no later than the date of the "Good Morning America" program and, consequently, granted Rugby's motion for summary judgment.

Plaintiff appeals, assigning error to the trial court's allowance of summary judgment for both Rugby and Stout.We first summarily reject plaintiff's arguments as to Rugby.As noted, plaintiff's arguments to the trial court in opposing summary judgment on the basis of the statute of limitations were limited and precise.On appeal, plaintiff does not rely on those arguments but, instead, advances new and qualitatively different arguments which, if raised below, might well have affected the development of the evidentiary record.Because plaintiff's arguments differ so substantially from her arguments to the trial court, we decline to address them and affirm the allowance of summary judgment for Rugby.See generallyState v. Hitz, 307 Or. 183, 188, 766 P.2d 373(1988);J. Arlie Bryant, Inc. v. Columbia River Gorge Comm., 132 Or.App. 565, 567-68, 889 P.2d 383, rev. den.321 Or. 47, 892 P.2d 1024(1995).

Turning to plaintiff's claims against Stout, plaintiff argues, as she did before the trial court, that, because of relation back, her strict liability claim is not time-barred and that the "learned intermediary" doctrine precludes neither her strict liability nor her negligence claim.We conclude, for the reasons that follow, that, even assuming that plaintiff's strict liability claim was timely, proper application of the "learned intermediary" doctrine bars that claim.We further conclude that, because plaintiff failed to offer any expert testimony controverting Stout's evidence that he had not breached any applicable standard of care for pharmacists pertaining to warning of dangers of prescription drugs, summary judgment against plaintiff's negligence claim was also proper.SeeDocken v. Ciba-Geigy, 101 Or.App. 252, 256, 790 P.2d 45, rev. den.310 Or. 195, 795 P.2d...