Mellon v. Barre-National Drug Co.

• Decision Date: 30 December 1993
• Docket Number: BARRE-NATIONAL
• Citation: 431 Pa.Super. 175,636 A.2d 187
• Parties: , Prod.Liab.Rep. (CCH) P 13,874 Edward J. MELLON, Administrator of the Estate of Deborah Mae Mellon, Deceased and Edward J. Mellon, in His own right and on Behalf of the Children Deborah Mae Mellon, Edward M. Mellon, A Minor and Sean M. Mellon, A Minor, Appellants, v.DRUG CO., Bay Labs, Inc., Bell Pharmacal Corp., Halsey Drug Co., Inc., Carroll Chemical Co., Consolidated Midland Corp., Cumberland, Inc., Dixon-Shane, Inc., Humco Laboratory, Inc., Parmed Pharmaceuticals, Inc., Purepac Pharmaceutical Co., Rite Aid, Roxane Laboratories, Inc., Rugy Laboratories, Scherer Laboratories, Inc., Spencer-Mead, Inc., Veratex Corporation, Appellees.
• Court: Pennsylvania Superior Court

Page 187

636 A.2d 187

431 Pa.Super. 175, Prod.Liab.Rep. (CCH) P 13,874

Edward J. MELLON, Administrator of the Estate of Deborah Mae Mellon, Deceased and Edward J. Mellon, in His own right and on Behalf of the Children Deborah Mae Mellon, Edward M Mellon, A Minor and Sean M. Mellon, A Minor, Appellants, v. BARRE-NATIONAL DRUG CO., Bay Labs, Inc., Bell Pharmacal Corp., Halsey Drug Co., Inc., Carroll Chemical Co. Consolidated Midland Corp., Cumberland, Inc., Dixon-Shane Inc., Humco Laboratory, Inc., Parmed Pharmaceuticals, Inc. Purepac Pharmaceutical Co., Rite Aid, Roxane Laboratories, Inc., Rugy Laboratories, Scherer Laboratories, Inc., Spencer-Mead, Inc., Veratex Corporation, Appellees.

Superior Court of Pennsylvania.

Argued Oct. 28, 1993.

Filed Dec. 30, 1993.

Michael B.L. Hepps, Philadelphia, for appellants.

Frank J. Eisenhart, Jr., York, for Roxane Laboratories, appellee.

James M. Marsh, George J. Murphy, Hecker Brown Sherry and Johnson, Philadelphia, for Barre-National Drug Co.

Before ROWLEY, President Judge and McEWEN and KELLY, JJ.

McEWEN, Judge:

Appellants, Edward Mellon and his children, Edward and Sean Mellon, instituted this products liability action by filing a twelve-count complaint seeking damages from the appellees, a group which appellants allege contains all known manufacturers of syrup of ipecac, a drug which the decedent, Deborah Mae Mellon, allegedly, as a result of an undiagnosed eating disorder known as bulemia, secretly and repeatedly ingested in an attempt to lose weight. Appellants contended that as a result of this misuse of syrup of ipecac by the decedent, the toxic component of syrup of ipecac, emetine, accumulated in her body and caused her death by cardio-respiratory arrest.

Appellants, Edward and Sean Mellon, the children of the decedent, were unable to rouse her from her bed on the morning of March 25, 1983. The boys called their father who, upon his arrival approximately forty minutes thereafter, summoned an ambulance. The decedent was subsequently pronounced dead by personnel at Lower Bucks Hospital at 8:30 a.m. that morning. An autopsy, performed under the auspices of the Bucks County Coroner's Office, did not reveal a cause of death and toxicological studies were performed on samples of decedent's blood, bile, eye fluids and stomach contents. ¹ The results of these studies, which were received three months after the death of the decedent, revealed the presence of emetine in the decedent's blood, bile, and urine samples.

Dr. Frederic Rieders, the toxicologist, concluded that "in the absence of similarly or more competent causes, the findings provide a competent independent cause of death through emetine toxicity--probably from chronic use of ipecac syrup used as an emetic following meals to 'lose weight'."

Appellants filed a complaint in the court of common pleas alleging that they had named all manufacturers of syrup of ipecac as defendants in this action and should be permitted to proceed on a collective liability theory, subject to the production of expert testimony that, as a result of the decedent's bulemia, it was probable that she had purchased syrup of ipecac from a large number of drug stores so as to avoid suspicion or detection. Appellants contend that as a result of this secretive behavior, there is a fair probability that the decedent purchased ipecac from a large number of retailers produced by different manufacturers. ²

Appellees filed a motion for summary judgment on March 3, 1987, contending that there was an insufficient basis, as a matter of law, upon which a jury could be permitted to find that the death of the decedent was, in fact, caused by ingestion of syrup of ipecac. Appellees also requested the entry of summary judgment due to the inability of the appellants to identify any manufacturer or distributor of the ipecac allegedly ingested by the decedent.

The eminent President Judge Isaac S. Garb, in granting, in part, the motion for summary judgment, held that there were:

material issues of fact with respect to the question of the cause of death. Certainly the testimony of Drs. Rosko and Rieders presents a sufficient factual basis upon which inferences may be drawn that the cause of death was the repeated ingestion of ipecac. The record adequately established that the warnings imprinted upon the containers did not necessarily communicate that danger to prospective users. Therefore, the motion for summary judgment on that basis will be denied.

The complaint purports to state nine separate causes of action as follows: Count 1. negligence; Count 2. strict liability; Count 3. misrepresentation; Count 4. lack of consent; Count 5. express warranty; Count 6. implied warranty; Count 7. fraud; Count 8. violation of federal law, negligence per se; and Count 9. conspiracy.

To take these in reverse order, we are satisfied that the record totally fails to sustain a cause of action for civil conspiracy. To state a cause of action for civil conspiracy the complaint must allege and the facts must reveal that two or more persons combined or entered into an agreement to commit an unlawful act or to do an otherwise lawful act by unlawful means. Slaybaugh v. Newman, 330 Pa.Super. 216, 479 A.2d 517 (1984). Proof of malice is an essential part of a cause of action for conspiracy. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979). The mere fact that two or more persons happen to do something which they have a right to do at the same time is not by itself an actionable conspiracy. Thompson Coal Company v. Pike Company, Id. and Morris v. Halford, 352 Pa. 138, 42 A.2d 411 (1945). On this record, there is no evidence whatsoever to reveal that any of the defendants acted in concert in any way or for any purpose. Therefore, summary judgment will be granted with respect to Count 9.

With respect to Count 8, violation of a federal law, negligence per se, summary judgment will likewise be granted for all defendants. Under the federal decisions that have addressed this issue, it has uniformly been held that there are no private causes of action under the Food, Drug and Cosmetics Act, 21 U.S.C. §§ 301 et seq. See Griffin v. O'Neal, Jones and Feldman, Inc., 604 F.Supp. 717 (S.D.Ohio 1985); National Women's Health Network, Inc. v. A.H. Robins Co., Inc., 345 F.Supp. 1177 (D.Mass.1982); and Keil v. Eli Lilly & Co., 490 F.Supp. 479 (E.D.Michigan 1980). As for an assertion of negligence per se, the record in this case reveals that the warnings imprinted upon the containers of ipecac conformed with all federal regulations. Therefore, there is no basis upon which a finding of negligence per se can be made.

With respect to Count 7, fraud, we likewise determine that summary judgment must be granted in favor of the defendants. It has uniformly been held that a very high standard of proof is required to establish a fraud. The evidence in support of it must be clear, precise and indubitable. See Gerfin v. Colonial Smelting and Refining, Inc., 374 Pa. 66, 97 A.2d 71 (1953) and New York Life Insurance Company v. Brandwene, 316 Pa. 218, 172 Atlantic 669 (1934). In order to establish a fraud there must be a showing by such evidence of a misrepresentation, a fraudulent utterance thereof with an intention by the maker that the recipient will be induced to act together with justifiable reliance by the recipient upon the misrepresentation and resulting damage. See Newman [Neuman ] v. Corn Exchange National Bank and Trust Company, 356 Pa. 442, 51 A.2d 759 (1947) and Eden Roc Country Club v. Mulhauser, [Mullhauser ] 416 Pa. 61, 204 A.2d 465 (1964). Clearly, this record is devoid of any such evidence.

Counts 6, implied warranty, and 5, express warranty, must likewise fall. With respect to express warranty, the complaint alleges that the warranties extended to the drug's use as an emetic were in some way false or misleading. However, the representations made on the containers regarding its use as an emetic for which it was sold, were accurate and not in any way false or misleading. There was no representation that they could be used for the purpose for which the decedent used them. Therefore, there is no evidence on this record to support the claim based upon express warranty.

The same is likewise true with respect to Count 6 alleging implied warranties of merchantability. This is a warranty which is implied by law that goods sold are reasonably fit for the general purpose for which they are sold. Eimco Corp. v. Joseph Lombardi & Son, 193 Pa.Super. 1, 162 A.2d 263 (1960). The flaw in plaintiff's case in this regard is found in the fact that there is no demonstration that ipecac was not fit for the purpose for which it was sold, as an antidote or response to oral poisoning. There is no representation of its utility for the purpose for which decedent used it nor is there any misleading statement regarding that use. Therefore, summary judgment must likewise be granted with respect to Count 6.

Summary judgment will likewise be granted for the defendants with respect to Count 4, lack of consent. The doctrine of informed consent in Pennsylvania is limited in its application solely to those cases involving surgical or operative medical procedures. It is not extended to cases involving the administration of therapeutic drugs. Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985).

Summary judgment will also be granted on Count 3, misrepresentation. Misrepresentation under the Restatement (Second) of Torts Section 402B, like fraud, requires a showing of justifiable reliance by plaintiff upon the alleged misrepresentations of the defendant. See Klages v. General [Ordnance ] Ordinance Equipment Corp., 240 Pa.Super. 356, 367 A.2d 304 (1976); Wickes Corp. v. Newtown Savings Association, 322 Pa.Super. 453, 469 A.2d 1078 (1983), and Klemow v. Time, Inc., 466 Pa. 189, 352 A.2d 12 (1976). Those elements are lacking in this case, there being no showing of any misrepresentation...