Kaspirowitz v. Schering Corp., A--696
| Decision Date | 09 November 1961 |
| Docket Number | No. A--696,A--696 |
| Citation | 175 A.2d 658,70 N.J.Super. 397 |
| Parties | Antoni KASPIROWITZ, Plaintiff-Appellant, v. SCHERING CORPORATION, a body corporate, Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Albert L. Cohn, Paterson, for appellant (David & Albert L. Cohn, Paterson, attorneys).
Charles P. De Yoe, Paterson, for respondent (Stalter, Doan & De Yoe, Paterson, attorneys; Charles P. De Yoe, Paterson, of counsel).
Before Judges PRICE, SULLIVAN and LEONARD.
The opinion of the court was delivered by
PRICE, S.J.A.D.
Plaintiff appeals from a final judgment of the district court, entered on defendant's motion for dismissal at the close of plaintiff's case. R.R. 4:42--2(b). Plaintiff claims damages from defendant Schering Corporation (hereinafter Schering) for personal injuries allegedly sustained as the result of his use of 'Sebizon,' a pharmaceutical product manufactured by defendant for the treatment of dandruff. Plaintiff asserts that defendant: (a) was negligent in failing adequately to warn the public of dangers inherent in the use of 'Sebizon'; (b) breached express warranties tht 'Sebizon' was safe to use; and (c) breached an implied warranty of merchantability.
We consider plaintiff's proofs. He testified that, entering a pharmacy in March 1959, he 'asked the druggist for something for' his (plaintiff's) 'dandruff.' The druggist suggested a shampoo, but upon plaintiff's inquiry 'if he had something better,' the druggist 'went behind the counter and brought out' a 'bottle' of 'Sebizon.' In response to plaintiff's request 'for instructions' as to how the medication 'should be used,' the druggist read the directions printed on the bottle and informed plaintiff of the procedure there indicated.
The bottle, received in evidence, is made of plastic. The label appearing on the front thereof includes the following warning: 'Caution: Federal law prohibits dispensing without prescription.' Printed directly upon the plastic on the reverse side of the bottle are four numbered instructions for use entitled 'Directions to the Patient.' The fourth such direction is: 'Repeat applications as directed by physician.'
Plaintiff testified that before he made the purchase he saw the above mentioned inscription on the bottle label and because thereof made specific inquiry of the druggist with reference to the 'prescription' requirement, to which the druggist replied 'that was all right' and that plaintiff had 'nothing to worry about * * *.' In response to interrogation by his own counsel on direct examination, plaintiff stated that in making the purchase he relied on the aforesaid statement by the druggist. On cross-examination of plaintiff the following appears in the record:
Kaspirowitz testified that he applied the 'Sebizon' to his scalp on the evening of March 19, 1959. The following night his scalp started 'to itch' and he noticed an eruption on his forehead which he described as 'pimples.' He returned to the druggist the next morning, informed the druggist of his condition, and asked him whether he should see a doctor; the druggist replied that 'there was nothing to worry about' and gave him a 'tube of cream' which he used without beneficial result. That evening his 'head started to swell' and a liquid, 'like pus,' was emitted from the 'pimples.' He again returned to the druggist who suggested that he should go to a hospital clinic for examination. He did so and thereafter was treated by a dermatologist who testified on his behalf at the trial.
At the trial plaintiff testified that he suffered headaches, loss of hair, swelling of the face, head and eyes, and inflammation of the skin, all of which persisted for a substantial period and required extensive medical treatment. The dermatologist who treated plaintiff testified that he diagnosed plaintiff's condition as 'contact dermatitis * * *, dermatitis venenata.' He expressed the opinion that 'with reasonable certainty' there was a 'direct relationship,' a 'causal connection,' between plaintiff's use of the 'Sebizon lotion' and plaintiff's condition as abserved by the doctor on examination.
The record before us reveals that plaintiff originally instituted his action on June 10, 1959, in the Superior Court for damages against the druggist as well as against Schering. The pretrial order, dated March 8, 1960, reveals that plaintiff based his action against the druggist on several grounds, including a claim that the latter 'was negligent in selling' the product 'to plaintiff without a doctor's prescription,' and that the druggist was also obliged to respond to plaintiff on the basis of an 'express or implied warranty that the product was fit for the purpose for which it was to be used.' The record further reveals that plaintiff thereafter consummated a settlement of his claim against the defendant druggist and, by court order dated November 4, 1960, the suit against that defendant was, on motion of plaintiff's counsel, dismissed with prejudice and the action transferred to the district court, there to be prosecuted against defendant Schering only.
As above stated, plaintiff initially claims that Schering was engligent in failing adequately to warn prospective purchasers that the use of 'Sebizon' might have deleterious effects. Neither at trial nor here does plaintiff contend that defendant, in labeling the bottle as aforesaid, failed to comply with the mandate of the Federal Food and Drugs Act, 21 U.S.C.A. § 353(b)(1), but he contends that compliance with that act does not satisfy the common-law duty owing by defendant to the public.
Enlarging upon his claim that defendant breached its common-law duty, plaintiff stresses defendant's employment of the word 'dispense' instead of the word 'use' on the bottle label. He asserts that such choice of word constitutes an 'inadequate and insufficient warning' to the public as to the possible danger in 'Sebizon'; that the word 'dispense' fails to inform purchasers of the product of the possible risk inherent in its 'use.' Specifically, he asserts that the word 'dispense' is simply a warning to the vendor (in this case the druggist) and fails adequately to alert the purchaser (in this case himself) to possible danger in the product's use. He contends that it is 'reasonably foreseeable' that the product 'will be sold on the open market to an ultimate consumer without a prescription' despite...
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