Krug v. Sterling Drug, Inc.

• Citation: 416 S.W.2d 143
• Decision Date: 12 June 1967
• Docket Number: No. 2,No. 52098,52098,2
• Court: United States State Supreme Court of Missouri
• Parties: Dorothy KRUG, (Plaintiff) Respondent, v. STERLING DRUG, INC., (Defendant) Appellant, and Beaumont Pharmacy, Inc., (Cross-Claimant) Appellant

Page 143

416 S.W.2d 143

Dorothy KRUG, (Plaintiff) Respondent, v. STERLING DRUG, INC., (Defendant) Appellant and Beaumont Pharmacy, Inc., (Cross-Claimant) Appellant.

No. 52098.

Supreme Court of Missouri, Division No. 2.

June 12, 1967.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 10, 1967.

Gray & Sommers, Charles E. Gray, C. Marshall Friedman, St. Louis, for plaintiff-respondent.

Chapman, Chapman & Litz, Wilton D. Chapman, Thomas W. Chapman, Arthur Litz, St. Louis, for appellant, Sterling Drug, Inc.

George E. Lee and Doris J. Banta, St. Louis, Carter, Bull, Baer, Presberg & Lee, St. Louis, of counsel, for appellant, Beaumont Pharmacy, Inc.

BARRETT, Commissioner.

In this action to recover $275,000.00 damages for serious injury to the plaintiff's vision, a jury returned a verdict in favor of the plaintiff, Dorothy Krug, and against Sterling Drug for $125,000.00 and Sterling has appealed. At the close of all the evidence the trial court directed a verdict in favor of the second defendant, Beaumont Pharmacy. Beaumont, however, filed a cross claim against Sterling for its attorneys' fees and expense of litigation; that claim was separately tried by the court, found in favor of Sterling and Beaumont has appealed from that judgment. Thus the appeals involve separate and distinct parties and issues, in one of which only Sterling and the plaintiff Krug are concerned and in the other only Beaumont and Sterling. And since, admittedly, there is no liability to Beaumont unless Sterling is held liable to Krug the appeals are of necessity disposed of in that order.

Unfortunately the parties, Sterling and Krug, in failing to precisely delineate and articulate respective basic theories, in briefing and urging numerous irrelevancies and factitious technicalities, have so thoroughly obfuscated essential and meritorious issues that the appellate function has been made unnecessarily difficult. See Judge Learned Hand, 'The Preservation of Personality' in The Spirit of Liberty, Dilliard, p. 43. It is not necessary to detail the obfuscations, they are noted at the outset because they necessarily appear as this record of over a thousand pages and the appellant Sterling's eleven assignments of error are considered.

STERLING DRUG APPEAL

By way of introduction it should be noted that Sterling Drug and Wintrop Laboratories are one and the same and that this action involves its trade-name drugs Aralen, Triquin and Plaquenil, all of which are compounded of its 1946 invented product chloroquine phosphate designed originally for the prevention and treatment of malaria. In 1955 Sterling introduced the drug to druggists and the medical profession for the treatment of arthritis and discoid lupus erythematosus. Chloroquine, a prescription drug, among other side effects, has an affinity for the melanin pigment found in the eyes resulting in a condition now known as chloroquine retinopathy, a condition with which the plaintiff Dorothy Krug is afflicted. It may be well to also interpolate that Sterling and its drug, chloroquine, have been involved in four other reported cases, all concerned with impaired vision, in two of which Sterling was unsuccessful, Sterling Drug, Inc. v. Cornish (Eight Circuit), 370 F.2d 82 and Yarrow v. Sterling Drug. Inc. (U.S.D.C., S.D.), 263 F.Supp. 159, and in two of which it was successful, Cochran v. Brooke, (Or.), 409 P.2d 904, and Oppenheimer v. Sterling Drug, Inc., (Court of Appeals of Franklin County, Ohio), 7 Ohio App.2d 103, 219 N.E.2d 54. While the record in this case is quite unlike any of those cases in certain basic respects, a number of facts are common to all and need not be detailed here.

In passing, however, conspicuous differentiating factors in the two cases in which Sterling was successful should be noted. In the Oregon case the plaintiff sued her doctor for malpractice as well as Sterling and at the conclusion of the trial 'all parties moved for a directed verdict.' Under Oregon practice when all parties move for a directed verdict the judge determines the fact with the effect, as the Oregon court said, 409 P.2d l.c. 905, 906, 'The procedural posture of the case required the trial judge to decide the questions of fact. His decision '* * * must be sustained, if the record contains any substantial evidence to support the judgment * * * .'" At the same time the court observed that 'Neither plaintiff nor defendants would have been entitled to a directed verdict had either party alone so requested the court to rule. The case was clearly one for the trier of the fact to determine.' Under this procedure, at the conclusion of a three weeks' trial, the trial judge found that there was no negligence on the part of either defendant and no breach of warranty by Sterling and that finding was supported--the only question before the Supreme Court of Oregon. This, of course, could not happen in this jurisdiction (Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558) and on appeal in a product's liability case, as in all other jury cases, in determining whether plaintiff made a case the evidence is viewed in the light most favorable to the plaintiff, disregarding the defendant's evidence except insofar as it may aid plaintiff's case. La Plant v. E. I. Du Pont De Nemours and Company, Mo.App., 346 S.W.2d 231, 234, a herbicide case. In the Ohio appeals case the trial court directed a verdict for the defendant and the appellate court agreed with that action, particularly did it agree that the record would not support a finding of proximate cause. But that factor alone, especially its proof, distinguishes Dorothy Krug's case, the Ohio court said, 'In the record before us, there is nothing to indicate that the doctor relied upon any information furnished by the defendant in prescribing Aralen for his patient * * * . He said, further, he did not know it, Aralen, to be a prescription drug, and that in the use of it he relied upon his own experience and what he had learned at the meetings.' 219 N.E.2d p. 58.

The plaintiff's petition was in five counts but Sterling's liability and her right to recover was submitted upon the single assignment of negligence that Sterling knew or should have known of the 'dangerous potentialities' of its drug and 'failed to give a timely and adequate warning to the doctor who was prescribing said drugs.' Upon this appeal Sterling does not challenge this basic rule and duty: '(W)here the drug is a prescription drug, the manufacturer has a duty to properly warn the doctor of the dangers involved.' Yarrow v. Sterling Drug, Inc., 263 F.Supp. l.c. 162; Sterling Drug, Inc. v. Cornish, 370 F.2d l.c. 85; Annotations 79 A.L.R.2d 301, 324; 76 A.L.R.2d 9, 16. '(I)t is incumbent upon the manufacturer to bring the warning home to the doctor.' Rheingold, 'Products Liability--The Ethical Drug Manufacturer's Liability,' 18 Rutgers L.R. 947, 993.

Recognizing this general rule and duty Sterling nevertheless contends that its motions for judgment should have been sustained for one or more of four reasons: (1) that Dorothy Krug's claim for injury to her eyes was barred by the five-year statute of limitations; (2) that as a matter of law the negligence of plaintiff's doctors was an intervening proximate cause; (3) that there was no duty to warn a small class (of which it is implied plaintiff was one) of peculiarly allergic or idiosyncratic users; and, (4) that there was no evidence that Sterling acted in any different manner than any other drug manufacturer in testing or warning and thus was not guilty of any negligence or of 'failure to exercise due care.' These assignments will be considered in the order in which they have been presented. The evidence and some facts are applicable to more than one of these overlapping issues, but once noted in one connection specific attention will not again be directed to them in considering another issue.

The plaintiff-respondent Dorothy Krug, 43, and her identical twin sister Doris have been afflicted with discoid lupus erythematosus since 1942 or 1943 and over the years have taken numerous prescribed drugs. These women are college graduates and have had a wide and varied experience in business; Doris, for eighteen years has been in the checking department of a bank, both have worked for doctors, including Dr. Weiss, and Dorothy for the past seventeen years has been a laboratory technician in the Washington University Dental School. Dorothy had been to other doctors but in 1945 became the patient of Dr. Weiss and he treated her and was her principal doctor he treated her and was her principal doctor until his death in 1963 and since then she Conrad. Thus the office records and correspondence of Dr. Weiss have been preserved and are a part of this record. In August 1953 Dr. Weiss for the first time prescribed Aralen, two 250 mg. tablets a day, and the drug improved Dorothy's lupus. Dr. Weiss continued to prescribe and Dorothy took Aralen until July 1957 when for the first time she noticed that her vision was sometimes 'fuzzy.' Dr. Weiss then prescribed Sterling's drug Plaquenil and from 1958 to 1962 Triquin, both chloroquine, but Dorothy's vision continued to worsen until 1961 when her eye condition stabilized and as Dr. Post says in 1965, she has no central vision and could count his fingers at two feet with her right eye and one foot with her left eye.

It is not necessary to refer in detail to Stering's chloroquine literature to the medical profession and to the retail druggists--some of it is noted in the four reported cases and all of it in large quantities is a part of this record. Its first pamphlet, April 1955, describing and recommending Aralen phosphate for the treatment of lupus, in its conclusion, warned only 'Side effects such as nausea, headache, giddiness, abdominal cramps and blurring of vision have been noted, but these disappear on reduction of does or discontinuance of the drug.' In some of its literature it was said that 'Toxic...