Pittman v. Upjohn Co.

• Decision Date: 28 November 1994
• Citation: 890 S.W.2d 425
• Parties: Prod.Liab.Rep. (CCH) P 14,129 Donald Wade PITTMAN, Sr. and Reba Pittman as guardians of the person and estate of Donald Wade Pittman, Jr., a disabled and incompetent person, Plaintiffs-Appellants, v. The UPJOHN COMPANY, Ralph W. Simonton, Jr., M.D. and Portland Prescription Shop, Defendants-Appellees.
• Court: Tennessee Supreme Court

Page 425

890 S.W.2d 425

Prod.Liab.Rep. (CCH) P 14,129

Donald Wade PITTMAN, Sr. and Reba Pittman as guardians of

the person and estate of Donald Wade Pittman, Jr., a disabled and incompetent person, Plaintiffs-Appellants, v. The UPJOHN COMPANY, Ralph W. Simonton, Jr., M.D. and Portland Prescription Shop, Defendants-Appellees.

Supreme Court of Tennessee,

at Nashville.

Nov. 28, 1994.

Charles Hill Beaty, Bruce N. Oldham, Gallatin, for plaintiffs-appellants.

J. Randolph Bibb, Jr., Katherine A. Brown, Nashville, for defendant-appellee The Upjohn Co.

Thomas W. Lawrence, Jr., M. Bradley Gilmore, Nashville, John R. Bradley, Hendersonville, for defendant-appellee Ralph W. Simonton, Jr., M.D.

Mark T. Smith, Gallatin, for defendant-appellee Portland Prescription Shop.

OPINION

REID, Justice.

This case presents for review the judgment of the Court of Appeals granting summary judgments for the defendants--the manufacturer that made an unavoidably dangerous prescription drug, the physician who prescribed the drug, and the pharmacy that dispensed the drug--on the ground that the defendants owed no duty to the plaintiff, for whom the drug was not prescribed. The record supports summary judgment for all defendants.

The plaintiffs, as guardians of the person and estate of Donald Wade Pittman, Jr., brought this action against The Upjohn Company, Ralph W. Simonton, Jr., M.D. and Portland Prescription Shop, seeking damages for injuries sustained by Pittman as the result of the ingestion of Micronase, a drug that had been prescribed for his grandmother. The complaint alleges that each of the defendants had a duty to warn of the dangerous properties of Micronase and the potentially deadly consequences of its being consumed by someone other than the person for whom it was prescribed. Each defendant filed a motion for summary judgment asserting that no duty was owed to Pittman as a matter of law. The trial court granted The Upjohn Company and the Portland Prescription Shop summary judgments. Dr. Simonton's motion was overruled. The Court of Appeals granted summary judgment to all defendants. It unanimously affirmed the summary judgment in favor of The Upjohn Company; a majority of the court affirmed the summary judgment in favor of the Portland Prescription Shop; and a majority reversed the trial court and entered summary judgment in favor of Dr. Simonton.

For purposes of these motions, the facts are undisputed. On March 15, 1988, Pittman's grandmother, Bessie Richards, was diagnosed as having adult-onset diabetes mellitus by Dr. Simonton, her family physician. Dr. Simonton prescribed Micronase, a prescription drug manufactured by The Upjohn Company. Portland Prescription Shop filled the prescription with five milligram Micronase tablets which were blue in color and imprinted with "Micronase" and the number "5." The only instruction on the label was to take one Micronase tablet before breakfast, and the only warning on the bottle was to keep all medicine out of the reach of children. No other information regarding the drug appeared on or in the bottle, and no other information about the drug was given by the physician or the pharmacist to Richards. At her request, the tablets were dispensed in a bottle without a childproof safety cap. Richards kept the bottle on top of her refrigerator alongside a bottle of aspirin and other medicine.

Micronase is capable of causing severe hypoglycemia, a condition resulting from abnormally low blood sugar. If not properly treated, severe hypoglycemia may cause coma, seizures and other neurological impairments. Micronase package inserts furnished by The Upjohn Company to the physician and the pharmacist explicitly warn of the possibility of hypoglycemia and stress the importance of giving proper instructions regarding the use of the drug and the symptoms of complications.

On November 2, 1988, Pittman, then 26 years old, was visiting his grandmother. Pittman told Richards that he was hurting all over and thought he had the flu. She told him there was aspirin on top of the refrigerator if he needed it and apparently said nothing about the Micronase.

Without the knowledge or consent of his grandmother, Pittman took the Micronase tablets, apparently believing that they were aspirin. Within a few hours, Pittman experienced a severe reaction to the drug, and his condition deteriorated over the next two days. He slept most of the time and ate very little food. On November 4, 1988, the family became concerned because Pittman could not be awakened. Richards then discovered that six of her Micronase tablets were missing. Pittman was taken immediately to the hospital, where he was diagnosed as suffering from severe hypoglycemia. He sustained permanent brain damage and is hospitalized in an extended care facility.

I Summary Judgment

The procedural issue as to each defendant is whether the summary judgment should be affirmed or reversed. In Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993), the Court discussed the proper use of the summary judgment process under Rule 56 of the Tennessee Rules of Civil Procedure:

Rule 56 comes into play only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Thus, the issues that lie at the heart of evaluating a summary judgment motion are: (1) whether a factual dispute exists; (2) whether the disputed fact is material to the outcome of the case; and (3) whether the disputed fact creates a genuine issue for trial.

In determining whether the disputed, material fact creates a genuine issue, the court is to view the evidence in the light most favorable to the nonmoving party and allow all reasonable inferences in its favor. Id. at 215. The party seeking summary judgment has the burden of demonstrating that there are no disputed, material facts creating a genuine issue for trial. Id.

An essential of Pittman's case against each defendant is the allegation of facts that would support a finding of a duty of care owed Pittman. As in all cases, there is a duty to exercise reasonable care under the circumstances. See Doe v. Linder Construction Co., 845 S.W.2d 173, 177 (Tenn.1992). In Doe, the Court explained:

The term reasonable care must be given meaning in relation to the circumstances. Ordinary, or reasonable, care is to be estimated by the risk entailed through probable dangers attending the particular situation and is to be commensurate with the risk of injury. The risk involved is that which is foreseeable; a risk is foreseeable if a reasonable person could foresee the probability of its occurrence or if the person was on notice that the likelihood of danger to the party to whom is owed a duty is probable. Foreseeability is the test of negligence. If the injury which occurred could not have been reasonably foreseen, the duty of care does not arise, and even though the act of the defendant in fact caused the injury, there is no negligence and no liability. "[T]he plaintiff must show that the injury was a reasonably foreseeable probability, not just a remote possibility, and that some action within the [defendant's] power more probably than not would have prevented the injury."

Id. at 178 (citations omitted). See also McClenahan v. Cooley, 806 S.W.2d 767 (Tenn.1991); Dooley v. Everett, 805 S.W.2d 380 (Tenn.Ct.App.1990).

The existence or nonexistence of a duty owed to the plaintiff by the defendant is entirely a question of law for the court. Prosser, section 37 at 236.

Bradshaw v. Daniel, 854 S.W.2d at 869. A statement of the underlying principle regarding the duty of care is found in Lindsey v. Miami Development Corp., 689 S.W.2d 856, 858-59 (Tenn.1985) (quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 37, at 236 (5th ed. 1984)):

[U]pon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of others--or, more simply, [where] the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court....

In this case, the duty alleged by Pittman and denied by each defendant is the duty to give an adequate warning regarding the properties and dangers of Micronase.

II The Upjohn Company--The Manufacturer

Drug manufacturers have a duty to exercise ordinary and reasonable care not to expose the public to an unreasonable risk of harm from the use of their products. See O'Hare v. Merck & Company, 381 F.2d 286, 291 (8th Cir.1967). Manufacturers of prescription drugs, like the manufacturers of any other unavoidably dangerous product, have a duty to market and distribute their products in a way that minimizes the risk or danger. They may discharge their duty by distributing the drugs with proper directions and adequate warnings to those who foreseeably could be injured by the use of their products. See Restatement (Second) of Torts, § 402A comment k (1965); Stanback v. Parke, Davis & Co., 657 F.2d 642, 644 (4th Cir.1981); Buckner v. Allergan Pharmaceuticals, 400 So.2d 820, 822 (Fla.Dist.Ct.App.1981); Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, 1050 cert. denied, 469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984).

The means whereby the product is dispersed is significant in determining to whom appropriate warnings should be given. As noted by the Court of Appeals in Laws v. Johnson, 799 S.W.2d 249 (Tenn.App.1990):

In considering the issue at bar it is necessary to recognize there is one body of the law relating to "proprietary or patent medicine" and the other relating to "ethical drugs" dispensed only by prescription. In dispensing "proprietary or patent" medicine all warnings relating to the use of the drug must be given to the...