Mowery v. Crittenton Hosp.
| Decision Date | 20 February 1987 |
| Docket Number | Docket No. 85049 |
| Citation | 400 N.W.2d 633,155 Mich.App. 711 |
| Parties | , Prod.Liab.Rep. (CCH) P 11,299 Bonnie and Richard MOWERY, Plaintiffs-Appellants, v. CRITTENTON HOSPITAL and Rose Malach, M.D. Defendants, and Ayerst Laboratories, Inc., and American Home Products, Inc. Defendants- Appellees. |
| Court | Court of Appeal of Michigan — District of US |
James Leonard Elsman, Birmingham, for plaintiffs-appellants.
Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by Michael L. Updike), Farmington Hills, for Ayerst Laboratories, Inc., and American Home Products, Inc.
Before ALLEN, P.J., and WAHLS and WARSHAWSKY, * JJ.
On June 27 and August 6, 1985, the circuit court for Oakland County, pursuant to GCR 1963, 117.2(1) and (3), entered orders of summary judgment in favor of defendants Ayerst Laboratories, Inc. and American Home Products, Inc., as to the issues of defendants' failure to test their drug product, Phospholine Iodide, and failure to warn plaintiffs of its dangers. Plaintiffs appeal as of right raising two issues: (1) whether a drug manufacturer has the duty to warn the ultimate consumer of the product's dangers; and (2) whether the trial court erred in finding that defendants' alleged failure to adequately test the drug product was not the proximate cause of plaintiff's injury. 1
On August 26, 1981, at Crittenton Hospital, codefendant Dr. Rose Malach performed a cataract removal and implantation of an intraocular lens on plaintiff Bonnie Mowery's right eye. The procedure involved the removal of the eye's natural lens which has an opaque covering or a cataract and its replacement with an artificial lens. Preoperatively, Dr. Malach explained to plaintiffs this surgical procedure's known risks of detachment of the retina, the portion of the eye containing the rods and cones, which transmits images to the optic nerve allowing vision. Plaintiff Bonnie Mowery signed a consent form acknowledging her awareness of all of the risks of cataract surgery.
Postoperatively, on September 10, 1981, Dr. Malach discovered a detachment of the lower loop keeping plaintiff's intraocular lens in place. Dr. Malach explained to plaintiffs what was wrong and how she planned to correct it and prescribed an eye drop, Phospholine Iodide, an opthamologic therapeutic drug. In prescribing the drug, Dr. Malach verbally explained to plaintiffs the drug's risks, which were retinal detachment and complications with certain types of general anesthesia. She did not give them any written information from the manufacturer, defendant Ayerst Laboratories.
Despite the risks of retinal detachment with the use of Phospholine Iodide, Dr. Malach prescribed this eye medication because it could prevent dislocation of the intraocular lens. Such dislocation could damage the cornea's endothelium (the outer covering of the eye), which would require a corneal transplant.
Because plaintiff's intraocular implant lens was again dislocated on October 23, 1981, Dr. Malach discontinued the Phospholine Iodide. After several unsuccessful attempts to medically reposition the lens, Dr. Malach successfully surgically repositioned it. Phospholine Iodide was again used during that procedure. On November 13, 1981, plaintiff contacted Dr. Malach's office complaining of a change of vision in her right eye. Because Dr. Malach was ill, plaintiff sought treatment from Dr. Aragones, who diagnosed retinal detachment. Surgery was performed to correct this detachment. However, plaintiff claims that she has suffered "permanent or protracted vision loss."
On September 14, 1983, plaintiffs filed a complaint against Crittenton Hospital, Dr. Malach, and Ayerst Laboratories, Inc. alleging negligence for the failure to adequately test and/or warn. On October 20, 1983, plaintiffs filed an amended complaint adding American Home Products, Inc. as a defendant and alleging that both Ayerst and American (1) breached their express and/or implied warranty and were strictly liable because the drug Phospholine Iodide is defective, and (2) consciously misrepresented the safety of its product, a proximate cause of plaintiff's injuries. Following the taking of depositions, Ayerst and American moved on June 13, 1984, for summary judgment on grounds they did in fact adequately warn the treating physician of the risks of retinal detachment. On June 27, 1984, the trial court granted partial summary judgment on grounds there was no question of fact but that Dr. Malach had been adequately warned of the drug's risks. However, the trial court held that the motion for summary judgment regarding adequate testing was denied without prejudice.
On July 3, 1984, defendants 2 filed a supplemental motion for summary judgment pursuant to GCR 1963, 117.2(1) and (3) regarding defendants' adequate testing of Phospholine Iodide. Defendants submitted an affidavit by Robert Lehman, Ph.D., who was the pharmacist primarily responsible for supervising the research and development of Phospholine Iodide (generic name: Echothiophate Iodide). Dr. Lehman claimed that extensive animal testing was done with this drug, during which retinal detachment was never observed. Phospholine Iodide was approved by the Food and Drug Administration in 1959.
On July 13, 1984, plaintiffs submitted the affidavit of David Schneider, Ph.D., stating that he had reviewed the literature relating to this drug. Dr. Schneider believed that the warnings and package inserts given to physicians by defendants do not adequately set forth the specific danger of retinal detachment associated with this drug. Independent published research states the link between Phospholine Iodide and retinal detachment.
On July 25, 1984, the trial court granted defendants' supplemental motion for summary judgment after finding that even if defendants' testing of Phospholine Iodide was inadequate, it was not the proximate cause of plaintiff's injury. While adequate testing would have allowed defendants to effectively warn plaintiffs and the treating physician of the risks of retinal detachment, Dr. Malach already knew of its risks, but chose to prescribe the drug and informed plaintiffs of the risks.
Following the filing of plaintiffs' claim for appeal as of right to this Court, defendants moved to dismiss the appeal. Defendants' motion was denied on July 26, 1985. On December 17, 1985, defendants' application for leave to appeal to the Michigan Supreme Court was also denied as the Court was "not persuaded that the question presented should be reviewed by this Court." 424 Mich. 861 (1985).
At the outset, plaintiffs contend that summary judgment was inappropriate as discovery was not yet complete. On this issue the standard of review is whether further discovery stands a fair chance of uncovering factual support for the opposing party's position. Goldman v. Loubella Extendables, 91 Mich.App. 212, 218, 283 N.W.2d 695 (1979), lv. den. 407 Mich. 901 (1979); Huff v. Ford Motor Co., 127 Mich.App. 287, 296, 338 N.W.2d 387 (1983); Kortas v. Thunderbowl & Lounge, 120 Mich.App. 84, 87, 327 N.W.2d 401 (1982). Here, plaintiffs filed their complaint approximately ten months before summary judgment was granted. Six depositions were taken and numerous interrogatories were answered by all parties. In light of Dr. Malach's and Bonnie Mowery's deposition testimony, we find that a sufficient period of time and sufficient amount of discovery occurred. It does not appear that further discovery will uncover factual support for either party's position.
On the substantive issue of a drug manufacturer's duty to warn, plaintiffs urge this Court to close the void in Michigan law created by the majority opinion in In re Certified Questions, 419 Mich. 686, 358 N.W.2d 873 (1984), by issuing an opinion requiring that a prescription drug manufacturer has the duty to directly warn the consumer of the drug's risks. We respectfully decline the invitation.
In 1979, our Supreme Court in Smith v. E.R. Squibb & Sons, Inc., 405 Mich. 79, 88-89, 273 N.W.2d 476 (1979), stated:
Between 1979 and 1984 the Supreme Court's holding in Smith that a drug manufacturer's duty to warn does not extend to the patient was followed in several decisions of the Court of Appeals. Reeder v. Hammond, 125 Mich.App. 223, 226, 336 N.W.2d 3 (1983); Taylor v. Wyeth Laboratories, Inc. 139 Mich.App. 389, 397, 362 N.W.2d 293 (1984), lv. den. 423 Mich. 852 (1985); Dunn v. Lederle Laboratories, 121 Mich.App. 73, 79, 328 N.W.2d 576 (1982), lv. den. 417 Mich. 1098 (1983); Muilenberg v. Upjohn Co., 115 Mich.App. 316, 332, 320 N.W.2d 358 (1982); Formella v. Ciba-Geigy Corp., 100 Mich.App. 649, 300 N.W.2d 356 (1980), lv. den. 411 Mich. 995 (1981). However, Justice Levin in the Supreme Court's majority opinion, In re Certified Questions, supra, 419 Mich. at 697, 358 N.W.2d 873, stated that the Court's prior statement in Smith, supra, was dictum and, therefore, did not establish a rule of law.
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CHAPTER § 9.03 The Learned-Intermediary Doctrine
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