Oresman v. GD Searle & Co., Civ. A. No. 4255.

• Decision Date: 06 January 1971
• Docket Number: Civ. A. No. 4255.
• Citation: 321 F. Supp. 449
• Court: U.S. District Court — District of Rhode Island
• Parties: Sandra ORESMAN and Richard Oresman, Plaintiffs, v. G. D. SEARLE & CO., Defendant.

321 F. Supp. 449

Sandra ORESMAN and Richard Oresman, Plaintiffs, v. G. D. SEARLE & CO., Defendant.

Civ. A. No. 4255.

United States District Court, D. Rhode Island.

January 6, 1971.

COPYRIGHT MATERIAL OMITTED

Allan T. Dworkin, of Aisenberg & Dworkin, Stanton V. Abrams, Providence, R. I., for plaintiffs.

Thomas D. Gidley, of Hinckley, Allen Salisbury & Parsons, Providence, R. I., for defendant.

OPINION

DAY, Chief Judge.

In this action the plaintiffs seek to recover damages sustained by them as the result of a stroke suffered by the plaintiff, Sandra Oresman. They allege that said stroke resulted from her taking birth control pills manufactured by the defendant. Jurisdiction is based upon diversity of citizenship and the existence of a controversy in the requisite amount. 28 U.S.C. § 1332.

In their complaint the plaintiffs have alleged the following grounds for liability by the defendant in four counts; (1) breach of an implied warranty that said pills were of merchantable quality for use as an oral contraceptive (Count I); (2) negligent manufacture of said pills by defendant and negligent misrepresentation in its advertising thereof (Count II); (3) negligence and res ipsa loquitur (Count III); and (4) strict liability in tort (Count IV). The defendant has moved for the entry of summary judgment in its favor on Counts I, III and IV, and for a more definite statement as to Count II. In the alternative, if its motion for summary judgment is denied, it moves for a more definite statement also as to said Counts I, III and IV.

Before considering the merits of the motions for summary judgment, it is the duty of this Court to decide what law shall be applied to this case. Since this is a diversity case, this Court must apply the substantive law which a Rhode Island court would apply thereto. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In the instant case the defendant is a foreign corporation and said pills were manufactured in a state other than Rhode Island. Under such circumstances the Rhode Island Supreme Court might not necessarily employ Rhode Island tort law. In a diversity case, the federal court must follow conflicts of law rules of the forum state. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The Supreme Court of Rhode Island has decided that it would not necessarily follow the lex loci delecti rule in tort conflicts cases where as to some particular issue another state has a more significant interest. Brown v. Church of Holy Name of Jesus, 252 A.2d 176 (R.I.1969); Woodward v. Stewart, 243 A.2d 917 (R.I. 1968), cert. denied 393 U.S. 957, 89 S.Ct. 387, 21 L.Ed.2d 371 (1968). In Woodward v. Stewart, supra, the Supreme Court held that the guidelines to be employed for weighing the conflicting interests are:

"(1) Predictability of results.

(2) Maintenance of interstate and international order.

(3) Simplification of the judicial task.

(4) Advancement of the forum's governmental interest.

(5) Application of the better rule of law."

In the instant case the injury sustained by said Sandra Oresman occurred in Rhode Island, although the manufacture of said allegedly defective pills occurred outside Rhode Island. The plaintiffs are domiciliaries of Rhode Island while the defendant is a foreign corporation. In my opinion Rhode Island has a paramount interest in applying its own law to protect its domiciliaries from defective products shipped into that state. Therefore, I conclude that a Rhode Island court confronted with a case involving a similar factual situation would apply Rhode Island substantive law, and a federal court sitting in that state must do likewise.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

A. Count I.

In this count the plaintiffs seek damages for breach of an implied warranty of fitness of said pills for the particular purpose intended, i. e., birth control. Although the plaintiffs do not refer therein to any particular section of the Uniform Commercial Code, General Laws of Rhode Island 1956, Title 6A, they are apparently relying on § 6A-2-315 thereof which provides as follows:

"Implied warranty; Fitness for particular purpose.—Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose. As to foodstuffs or drinks sold for human consumption in sealed containers, there is an implied warranty that the goods shall be reasonably fit for such purpose, and such warranty shall extend from the seller and the manufacturer or packer of such goods to the person or persons described in § 6A-2-318 of this chapter." emphasis supplied

Said § 6A-2-318 at all pertinent times provided as follows:¹

"Third party beneficiaries of warranties express or implied.—A seller's warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section."

Defendant moves for the entry of summary judgment in its favor as to this count on the ground that it does not appear from the allegations of said count that the plaintiff Sandra Oresman purchased said pills directly from the defendant. Considering the normal consumer sales pattern, it is unlikely that she purchased them directly from the defendant. For the purpose of deciding the instant motion, I shall assume she purchased them from a retailer. In the absence of privity of contract between said Sandra Oresman and the defendant, the latter contends that the plaintiffs cannot recover on the theory of breach of an implied warranty because, it maintains, the Supreme Court of Rhode Island has imposed an absolute requirement of privity of contract as a prerequisite to a recovery for breach of an implied warranty. In support of this contention it cites Henry v. John W. Eshelman & Sons, 99 R.I. 518, 209 A.2d 46 (1965).

In my opinion defendant's contention is without merit. In the later case of Finocchiaro v. Ward Baking Company, 241 A.2d 619 (R.I.1968), the Supreme Court of Rhode Island held that as to foodstuffs or drinks sold for human consumption in sealed containers there is an implied warranty that the goods sold shall be reasonably fit for such purpose and that said warranty extends from the seller and the manufacturer or packer of such goods to the purchasers thereof and to persons described in § 6A-2-318 of the General Laws of Rhode Island, 1956. In its opinion the Court held at page 621:

"It has been the rule in this jurisdiction that the breach of an expressed or implied warranty cannot be the basis of an action sounding in contract by one not privy to the warranty. Lombardi v. California Packing Sales Co., 83 R.I. 51, 112 A.2d 701; Henry v. John W. Eshelman & Sons, 99 R.I. 518, 209 A.2d 46. However, with the enactment of P.L.1961, chap. 144, sec. 1, now G.L.1956, § 6A-2-315, as amended, the legislature provided for a specified implied warranty, extending from the manufacturer to third party beneficiaries."

The issue before this Court is whether the exception to the general rule of privity declared by the Supreme Court in Finocchiaro v. Ward Baking Company, supra, shall be applied to medicines or drugs sold for human consumption. Since this issue has not been decided by the Supreme Court of Rhode Island, it becomes my duty to determine said issue as I believe said Supreme Court would rule in a similar case. Putman v. Erie City Manufacturing Company, 338 F.2d 911 (5th Cir. 1964); Gullborg v. Rizzo, 331 F.2d 557 (3rd Cir. 1963); Doughty v. Hoisington, 265 F.Supp. 238 (D.Vt. 1967); Pastorelli v. Associated Engineers, Inc., 176 F.Supp. 159 (D.R.I. 1959). In doing so a federal court must look to the same legal authorities which the Rhode Island court would presumably consider if it were deciding this issue. Putman v. Erie City Manufacturing Company, supra; Deveny v. Rheem Manufacturing Company, 319 F.2d 124 (2d Cir. 1963); Klimas v. International Telephone and Telegraph Corp., 297 F. Supp. 937 (D.R.I.1969).

In my opinion the same reasons of policy that hold that privity of contract is not prerequisite to recovery for breach of an implied warranty of fitness of foodstuffs for human consumption apply with equal force in actions for personal injuries caused by unfit drugs (i. e. oral contraceptives). Both are intended for human consumption. Foodstuffs have been accorded a special status by state courts, in Rhode Island and elsewhere, because as products intended to be consumed by the purchasers thereof they pose a special danger to the purchasers thereof if they are defective and unfit for consumption. See William Prosser: The Assault Upon The Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1103 (1960). In recognition of the rationale of placing foods and drugs in the same category, the Restatement of Torts refers to products intended for "intimate bodily use" so as to include everything intended for internal human consumption, whether or not it has nutritional value. Restatement, Torts (2nd) § 402 A, Comment (b).

In Gottsdanker v. Cutter Laboratories, 182 Cal.App.2d 602, 6 Cal.Rptr. 320, 79 A.L.R.2d 290 (1960), this rationale was followed by the court in an action based upon a breach of an implied warranty against the manufacturer of Salk vaccine which the plaintiff alleged contained live virus of poliomyelitis and which, when injected into her children, caused the disease in each of them. There was clearly no privity between the plaintiff and her children and the defendant, and the California rule was to require...