Holley v. Burroughs Wellcome Co.

• Citation: 330 S.E.2d 228,74 N.C.App. 736
• Decision Date: 04 June 1985
• Docket Number: No. 8414SC671,8414SC671
• Parties: , Prod.Liab.Rep. (CCH) P 10,742 Dianne HOLLEY, Individually, Greg L. Hinshaw, Guardian of the Estate of Ervin Lee Holley and Dianne Holley, Guardian of the person of Ervin Lee Holley v. BURROUGHS WELLCOME CO., A North Carolina Corporation and Ayerst Laboratories; A Division of American Home Products Corporation.
• Court: Court of Appeal of North Carolina (US)

Page 228

330 S.E.2d 228

74 N.C.App. 736, Prod.Liab.Rep. (CCH) P 10,742

Dianne HOLLEY, Individually, Greg L. Hinshaw, Guardian of the Estate of Ervin Lee Holley and Dianne Holley Guardian of the person of Ervin Lee Holley v. BURROUGHS WELLCOME CO., A North Carolina Corporation and Ayerst Laboratories; A Division of American Home Products Corporation.

No. 8414SC671.

Court of Appeals of North Carolina.

June 4, 1985.

McCain & Essen by Grover C. McCain, Jr., Chapel Hill, for plaintiffs-appellants.

Newsom, Graham, Hedrick, Bryson, Kennon & Faison by E.C. Bryson, Jr., and Joel M. Craig, Durham, for defendant-appellee American Home Products Corp.

Teague, Campbell, Conely & Dennis by C. Woodrow Teague, Raleigh, and Richard B. Conely, Fuquay Varina, for defendant-appellee Burroughs Wellcome.

EAGLES, Judge.

I

Plaintiffs contend that it was error to allow defendants' motions for summary judgment because genuine issues of fact exist that must be submitted to the jury. We agree.

Plaintiffs' specific contentions are (1) that there is an issue of fact as to the credibility of defendants' deposition witness, Dr. Hooper, that presents a jury question; (2) that Dr. Hooper was not the only person whose failure to recognize the symptoms of malignant hyperthermia was critical to the treatment of E.L. Holley; and (3) that there is a factual question as to the causal relationship between defendants' alleged failure to provide adequate warnings and the injury. If any of these specific contentions is valid, the court's entry of summary judgment for defendants was error.

a.

Our courts have often enunciated the principles governing summary judgment. They are well established in our law. "The party moving for summary judgment has the burden of establishing the lack of any triable issue of fact. His papers are carefully scrutinized and all inferences are resolved against him.... The court should never resolve an issue of fact." Kidd v. Early, 289 N.C. 343, 352, 222 S.E.2d 392, 399 (1976). See also Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975); Kessing v. Mortgage Co., 278 N.C. 523, 180 S.E.2d 823 (1971). Ordinarily, summary judgment is not appropriate in negligence actions because the right of recovery usually depends on the application of the reasonable person standard of care. Only the jury, under instructions from the court, may apply that standard. Moore v. Fieldcrest Mills, 296 N.C. 467, 251 S.E.2d 419 (1979); Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). See generally, 11 N.C.Index 3d, Rules of Civil Procedure Sections 56-56.7 (1978 and Supp.1984).

North Carolina does not recognize strict liability in products liability actions. Smith v. Fiber Corp., 300 N.C. 669, 268 S.E.2d 504 (1980); McCollum v. Grove Manufacturing Co., 58 N.C.App. 283, 293 S.E.2d 632 (1982), affirmed per curiam 307 N.C. 695, 300 S.E.2d 374 (1983); Wilson Brothers v. Mobil Oil, 63 N.C.App. 334, 305 S.E.2d 40, disc. rev. denied, 309 N.C. 634, 308 S.E.2d 718 (1983). Therefore, whether defendants can be held liable in this case must be determined in accordance with ordinary negligence principles. McCollum, Wilson, both supra. In order to establish a prima facie case of negligence on a products liability action, a party must show, "(1) evidence of a standard of care owed by the reasonably prudent person in similar circumstances; (2) breach of that standard of care; (3) injury caused directly or proximately by the breach, and; (4) loss because of the injury." City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 656, 268 S.E.2d 190, 194 (1980); McCollum, supra.

Here, the standard of care or duty allegedly owed by defendants to E.L. Holley was to warn the personnel responsible for his anesthesia of the risk that the use of their products to induce anesthesia could cause malignant hyperthermia and to provide information to the responsible personnel concerning how to recognize and treat the condition. The breach of that duty alleged by plaintiffs is that the warnings and information provided by defendants were inadequate. This breach allegedly resulted in Holley's malignant hyperthermia going undetected until it was too late to prevent the injury. Though it is not stated in defendants' motions or in the trial court's order, it is clear from the documents supporting their motions that defendants were attempting to defeat plaintiffs' allegation that the breach caused the injury. This, at least, is the issue argued on appeal.

Defendants' strategy is clear: if they can establish that Dr. Hooper did not rely on the information provided by defendants with respect to their products, the question of whether the warnings were adequate would be irrelevant and plaintiffs' allegations regarding proximate cause would be defeated. Though we have found no North Carolina cases on point, the principles of ordinary negligence and decisions from other jurisdictions seem to justify this strategy. E.g., Oppenheimer v. Sterling Drug, Inc., 7 Ohio App.2d 103, 219 N.E.2d 54 (1964); Ball v. Mallinckrodt Chemical Works, 53 Tenn.App. 218, 381 S.W.2d 563, 19 A.L.R.3d 813 (1964).

Defendants supported their motions with several affidavits but relied primarily on the deposition of Dr. Hooper. Dr. Hooper testified that he was aware of the information available regarding the propensity of defendants' products to cause malignant hyperthermia but that he neither read nor relied on it. Rather, Dr. Hooper testified that his specialty involved a detailed awareness of the very information that plaintiffs claim defendants failed to provide: (1) that Fluothane and Anectine could cause malignant hyperthermia and (2) how to recognize and treat the condition. Dr. Hooper testified that he had set up at Duke a malignant hyperthermia awareness program that included a kit in each operating room and a protocol for dealing with the condition. Dr. Hooper further testified that he did not think that E.L. Holley had developed malignant hyperthermia. The effect of Dr. Hooper's testimony was that his knowledge of the causes, symptoms, effects and treatment of malignant hyperthermia was so sophisticated that he did not need to, and in fact did not, rely on the allegedly inadequate information provided by defendants relating to the use and possible adverse effects of their products.

If Dr. Hooper's lack of reliance could be proved, the key element of proximate cause in plaintiffs' prima facie case would be defeated. The threshold question is whether defendants' forecast of the evidence is sufficient to establish that Dr. Hooper did not rely on defendants' package inserts or promotional materials concerning the use of their products. Plaintiff contends that Dr. Hooper's deposition testimony is the only evidence tending to show that he did not rely on defendants' information and that it is suspect because Dr. Hooper is an interested witness. We agree.

G.S. 1A-1, Rule 56(e), provides as follows:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, supported by affidavits or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial.

Witness credibility is ordinarily a jury question. On a motion for summary judgment, however, the judge may determine that a deposition witness is credible as a matter of law where only latent doubts exist as to the witness's credibility and the opposing party fails to go beyond his pleadings in opposing the motion. Conner v. Spanish Inns Charlotte, Inc., 294 N.C 661, 242 S.E.2d 785 (1978); Kidd v. Early, supra. In North Carolina, the mere fact that a witness has an interest in a case is not sufficient by itself to render his deposition testimony inherently suspect for purposes of summary judgment. Taylor v. City of Raleigh, 290 N.C. 608, 227 S.E.2d 576 (1976). In order for the testimony of an interested witness to be inherently suspect, it must concern facts peculiarly within the knowledge of the witness. Carson v. Sutton, 35 N.C.App. 720, 242 S.E.2d 535 (1978).

In our opinion, Dr. Hooper's deposition testimony was subject to more than latent doubt as to its credibility. Dr. Hooper is not a party to this action. He was, however, the physician responsible for anesthetizing E.L. Holley and was a named defendant along with Duke in a malpractice action filed by plaintiffs based on the injury to E.L. Holley. That action was settled prior to trial. Plaintiffs contend that Dr. Hooper is interested because his reputation in the medical community could be adversely affected if he admitted that his own lack of knowledge may have contributed to Holley's injury. Obviously, it is in his interest, having settled the malpractice action, to testify that his knowledge of malignant hyperthermia and the dangers posed by defendants' products came from years of professional training and experience and not from defendants' package inserts or professional journal advertisements. This interest is clearly inferable from the record. It is likewise clear that Dr. Hooper's knowledge of malignant hyperthermia and the extent of his reliance on defendants' warnings and other information are matters that are entirely within his personal knowledge and impossible to verify independently from the record.

Construing the documents supporting and opposing defendants' motion for summary judgment in the light most favorable to the plaintiff, there is clearly sufficient evidence to permit the inference that Dr. Hooper was an interested witness and to raise more than a latent doubt as to his credibility. Accordingly, the test for determining whether testimony is inherently suspect is satisfied. The burden of disproving the testimony or impeaching its credibility was thus never shifted to plaintiffs and they were not required to go beyond their pleadings in order to defeat the motion. See Mace v. Bryant...