Lake v. Konstantinu

• Decision Date: 15 July 1966
• Docket Number: Nos. 5649--5651,s. 5649--5651
• Citation: 189 So.2d 171
• Parties: William F. LAKE, Administrator of the Estate of Joan Marie Lake, deceased, and William F. Lake, individually, Appellant, v. Ilias KONSTANTINU and Parke, Davis & Company, a corporation, Appellees. William F. LAKE, Appellant, v. Ilias KONSTANTINU and Parke, Davis & Company, a corporation, Appellees. William F. LAKE, Administrator of the Estate of Joan Marie Lake, deceased, Appellant, v. Ilias KONSTANTINU and Parke, Davis & Company, a corporation, Appellees.
• Court: Florida District Court of Appeals

Page 171

189 So.2d 171

William F. LAKE, Administrator of the Estate of Joan Marie Lake, deceased, and William F. Lake, individually, Appellant, v. Ilias KONSTANTINU and Parke, Davis & Company, a corporation, Appellees.

William F. LAKE, Appellant, v. Ilias KONSTANTINU and Parke, Davis & Company, a corporation, Appellees.

William F. LAKE, Administrator of the Estate of Joan Marie Lake, deceased, Appellant, v. Ilias KONSTANTINU and Parke, Davis & Company, a corporation, Appellees.

Nos. 5649--5651.

District Court of Appeal of Florida, Second District.

July 15, 1966.

Rehearing Denied Aug. 26, 1966.

C. Wendell Harris, Vero Beach, and Dick Lee, Sarasota, for appellant.

Fowler, White, Gillen, Humkey & Trenam, Tampa, for appellees.

WEHLE, VICTOR O., Aassociate Judge.

Appellant filed three suits in which all of which he was in some capacity seeking damages for the death of his minor daughter as a result of the ingestion of Chloromycetin, the trade name of the drug chloramphenicol manufactured by the defendant, Parke, Davis & Company (hereinafter referred to as Parke, Davis), and prescribed for the decedent by the defendant, Ilias Konstantinu, an orthopedic physician. The issues in the three cases are identical for the purposes of this appeal, which is from a summary judgment entered by the trial Court in each case in favor of the defendant, Parke, Davis. We find this action to be error and reverse.

The plaintiff's amended complaints insofar as they were directed to the defendant, Parke, Davis, were based on two theories, breach of implied warranty and negligence. Both theories are plainly referable to the developing body of law concerning manufacturer's liability.

The plaintiff's complaints charge that his daughter was killed by the administration of the drug Chloromycetin. Chloromycetin is made and sold only by Parke, Davis, which was the developer or inventor of the basic formula. The girl was suffering from some infection in her toe and her family physician, a general practitioner, Doctor Coggan, referred her to Dr. Konstantinu who ordered and prescribed the drug for the child. After a period of treatment of two years, the patient dided, allegedly as a result of aplastic anemia due to chloromycetin intoxication.

Suits were filed and the defendant's Motions to Dismiss the amended Complaints for failure to state a cause of action were heard and denied after which the defendants filed answers denying all liability and all allegations of negligence on their part.

The attorneys for the defendant, Parke, Davis, took the deposition of Dr. Coggan on October 3, 1962. The attorneys for the defendant, Konstantinu, took Dr. Coggan's deposition on November 27, 1963. These depositions were on file at the time the defendant's Motion for Summary Judgment was argued before the trial Judge in August, 1964. The plaintiff took the deposition of the defendant, Konstantinu, on November 27, 1963, but this deposition was not officially filed in the Circuit Court until December 16, 1964, some four months after the summary judgment had been entered. The attorneys for Dr. Konstantinu also took the deposition of the medical record librarian of Sarasota Memorial Hospital on June 20, 1963, but this deposition is immaterial to the present consideration. As far as the record here is concerned, the only other matters that appeared in the file other than pleadings were certain interrogatories propounded by the plaintiff to the defendant, Parke, Davis, in February, 1964, and the answers to such of these interrogatories as were sustained, which answers were all filed before the Motion for Summary Judgment was considered.

On July 17, 1964, the defendant, Parke, Davis, moved for summary judgment on the question of liability, which Motion in its essential parts merely stated: 'for grounds therefor would show unto the Court that the pleadings and the deposition of the plaintiff shows that there is no genuine issue as to any material fact on the question of liability of said defendant.' Argument was heard on the Motion and the trial Court entered an order and later a judgment on said order which merely recited that the matter had been heard and that the Motion was granted because there was no genuine issue as to any material fact.

It is impossible to determine from the record what matters were considered by the trial Judge in ruling on the Motion for Summary Judgment. The Motion was based on the pleadings and the 'deposition of the plaintiff.' There was no deposition of the plaintiff. There were two depositions of Dr. Coggan taken by the defendants and a deposition of the defendant, Dr. Konstantinu, taken by the plaintiff before the summary judgment, but not filed until many months thereafter. There were also the interrogatories and the answers to them on file.

Obviously if the trial Judge merely considered what the defendant, Parke, Davis' Motion ahd asked him to consider, to-wit: the pleadings and the 'deposition of the plaintiff,' there was no basis at all for his ruling. We must assume, therefore, that he considered all of the depositions, both those on file and the one that was taken earlier, but not filed until after his order, and we must also assume that he considered the interrogatories and the answers thereto because, absent such consideration, there would have been no possible justification for his ruling.

The answers to the interrogatories were in a definitely improper form, but no objections were made thereto. Rule 1.27 Florida Rules of Civil Procedure, 30 F.S.A. requires that answers to interrogatories must be under oath. Here the answers were not sworn to, but were merely signed by an assistant secretary of Park, Davis, who then acknowledged before a notary that he had executed the answers in behalf of Parke, Davis, which is decidedly different from swearing to the truth of the answers. However, no objection was made to this lack of oath and we will not now consider it, but merely mention it so that in any further proceedings in this cause, the same errors may not be made.

The question, therefore, narrows itself to the issue as to whether the pleadings, deposition and interrogatories as answered, considered as a whole showed that there was no genuine issue as to any meterial fact.

The appellee has extensively briefed the question of the liability of the manufacturer of the drug to the ultimate patient. The brief in this aspect is utterly irrelevant as the sufficiency of the amended complaint in stating a cause of action was properly determined by the trial Court when it overruled the appellee's Motion to dismiss. On Motion for Summary Judgment, the only question to be considered is the existence of an issue of material fact.

The facts in the counts of the amended complaint based on warranty were (1) the manufacture and sale of the drug by Parke, Davis; (2) the warranty or holding out to the public by Parke, Davis that the drug was reasonably fit for the purposes intended; (3) that it was not so fit, but (4) was in fact harmful and detrimental to the decedent's health and (5) that it caused her death.

Parke, Davis denied each of these facts in its answer. The plaintiff established the first fact by the answers of Parke, Davis to the...