Johnston v. Upjohn Co.

• Decision Date: 07 April 1969
• Docket Number: No. 24996,24996
• Citation: 442 S.W.2d 93
• Parties: Lucille JOHNSTON, Appellant, v. The UPJOHN COMPANY, Respondent.
• Court: Missouri Court of Appeals

Page 93

442 S.W.2d 93

Lucille JOHNSTON, Appellant, v. The UPJOHN COMPANY, Respondent.

No. 24996.

Kansas City Court of Appeals, Missouri.

April 7, 1969.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 2, 1969.

Application to Transfer Denied July 14, 1969.

Bundschu, Bailey & Disney, Kansas City, for appellant.

John R. Gibson, Morrison, Hecker, Cozad, Morrison & Curtis, Kansas City, for respondent.

HOWARD, Presiding Judge.

This is a products liability case involving the antibiotic Lincocin which is The Upjohn Company's trade name for Lincomycin. The petition was in three counts; the first count being against the treating physician; the second count against The Upjohn Company who manufactured the antibiotic; and the third count being the husband's separate cause of action for loss of services of his wife. A jury trial resulted in a nine-man verdict for $15,000.00 in favor of the plaintiff Lucille Johnston, and against The Upjohn Company. The jury found the issues in favor of the treating physician as to both plaintiffs and against the husband on his separate cause of action. The trial court granted a new trial to The Upjohn Company on the ground of error in plaintiff's verdict-directing instruction. Plaintiff has duly appealed to this court from such order. There was no appeal from the judgment in favor of the treating physician and against the husband.

On this appeal the defendant Upjohn Company not only seeks to justify the action of the trial court in granting the new trial but strenuously asserts that plaintiff failed to make a submissible case and therefore judgment should be entered for the defendant. We shall examine this latter contention first since it may be dispositive of the entire case. Bailey v. Interstate Airmotive, Inc., Mo., 219 S.W.2d 333.

The evidence shows that prior to the occurrences here in question, the plaintiff Lucille Johnston had an anaphylactic reaction to an injection of penicillin and streptomycin which was almost fatal. On the occasion now being considered, Mrs. Johnston had a hurting in her ear and consulted Dr. Wurster who diagnosed her condition as otitis media (an infection of the middle ear) and indicated that she needed antibiotic treatment. She told the doctor and his nurse that she had had a reaction to penicillin and streptomycin the previous year; that her internist had advised her not to take any antibiotics and displayed to the doctor a medical alert bracelet that she wore reading 'Penicillin--Streptomycin allergy' which had been prescribed by her internist. Dr. Wurster advised that he would use Lincocin and that she would have no ill effects therefrom. His nurse then gave plaintiff an injection of Lincocin and she was given a prescription for 15 pills or tablets containing Lincocin to be taken 3 each day. Plaintiff took the pills as directed.

The injection of Lincocin occurred on July 31, 1965. Plaintiff had no immediate reaction. Her testimony was that on the 8th of August, she felt a little under par and was tense. On the 10th or 11th of August, she was experiencing a breaking-out on her face and severe itching. At that time she called her internist Dr. Lundgren. She was treated with ACTH and given creams for the swelling and breaking-out on her hands, face, neck and ears. Her condition temporarily improved but soon got worse again. She had swelling, breaking out, itching and blistering on her hands and arms, face, neck and ears, and over large portions of the rest of her body. The condition was such that the skin between her fingers broke. On Sunday, August 15, she went to St. Mary's Hospital at the direction of Dr. Lundgren's office where she was again given ACTH. On August 20, she entered St. Mary's Hospital where she was attended by Dr. Lundgren. At the hospital she was given ACTH and her body and extremities were wrapped in saline packs. She was also treated with Decatron cream. She testified that approximately 95% of her body was affected. Although her condition improved, the swelling and oozing still remained at the time she was discharged from the hospital on August 25. Plaintiff continued under the care of her doctor and continued to use the medications he prescribed. At the time of the trial she had itching, rash and swelling, and was not able to pursue her normal activities. Since no contention is made that the verdict is excessive, we do not need to further describe her condition.

As to the defendant Upjohn, plaintiff's cause was submitted to the jury by Instruction No. 9 on the basis that the defendant knew or should have known of the adverse effects of the drug Lincocin such as resulted to Lucille Johnston and failed to give a timely and adequate warning to her doctor of such adverse effects. It is on the basis of this submission that we must determine whether or not plaintiff made a submissible case as to defendant Upjohn.

The evidence showed that each package of Lincocin was accompanied by what is called a package insert concerning the properties of the drug, proper dosages precautions, etc. The plaintiff's doctor testified that he had read and was familiar with the contents of this package insert. In the case of prescription drugs such as Lincocin, warning to the medical profession in such manner is all that is required and constitutes warning to the patient as well. See Krug v. Sterling Drug, Inc., Mo., 416 S.W.2d 143. Among other things, the insert stated 'Patients with otitis media (plaintiff's condition) * * * have been treated with good clinical results in the majority of cases.' It was also stated 'Lincocin has been administered to over 460 persons with known allergies (including persons reported to be allergic to penicillin). No serious hypersensitivity reactions have been reported in these patients and many patients have received repeated courses of Lincocin without developing evidence of hypersensitivity.' Further, the insert advised 'Cross resistance has not been domonstrated with penicillin, * * * streptomycin * * *'

Under the heading 'Adverse Reactions', the following appeared:

'The most frequently observed side effect has been loose stools or diarrhea. As expected, this was observed almost exclusively in patients on oral therapy. Other adverse reactions reported in a small per cent of patients have been nausea, vomiting, abdominal cramps or pain, skin rash, rectal irritation, vaginitis, urticaris, and itching.

'Angioneurotic edema, serum sickness, anaphylaxis or other serious hypersensitivity reactions have not been reported. 'Intramuscularly, Lincocin has demonstrated excellent local tolerance and reports of pain following injection have been infrequent.

'Intravenous administration of Lincocin in 250 to 500 ml. of 5 per cent glucose in distilled water or normal saline produced no local irritation, phlebitis or systemic side effects.'

In her brief plaintiff argues that taken as a whole, this package insert constituted an affirmative assurance of safety in its use. However, plaintiff did not submit on this theory and there was no evidence that would support a finding that such assurance was negligently given. Plaintiff submitted on the basis that defendant knew or should have known of danger of serious reaction such as occurred to plaintiff and failed to warn of such danger. We are constrained to hold that there is no evidence to support this submission. The package insert in evidence is dated May 1965. The evidence was that the wording of this insert was the same as that dated late in 1964 when the drug Lincocin was first available to the public.

Lincocin was developed by The Upjohn Company over a period of years and involved a large amount of chemical and laboratory testing and finally testing on human volunteers. At the time of the original application to the Food...