Pollard v. Ashby, 54190
| Decision Date | 22 May 1990 |
| Docket Number | No. 54190,54190 |
| Citation | 793 S.W.2d 394 |
| Parties | Prod.Liab.Rep. (CCH) P 12,327 Ronald POLLARD and Sharon Pollard, Respondents-Cross Appellants, v. Richard H. ASHBY, M.D., and Richard H. Ashby, P.C., Respondents, and Smith Laboratories, Inc., Appellant. |
| Court | Missouri Court of Appeals |
Frank N. Gundlach, Thomas B. Weaver, St. Louis, for appellant.
Richard L. Hughes, Mogab & Hughes, Attorneys, P.C., St. Louis, for Ronald and Sharon Pollard.
Joseph Kortenhof, St. Louis, for Richard H. Ashby et al.
In July 1981, respondent, Ronald Pollard, the forty year old plaintiff, injured his back in a lifting accident at work. The plaintiff received treatment from a chiropractor which improved his condition to a degree. The plaintiff also saw a family physician and a specialist for his back problem. After the plaintiff received some conservative treatment resulting in no apparent effect, the plaintiff saw Dr. Hawk, a neurologist, who also prescribed conservative treatment. Dr. Hawk eventually ordered a CAT scan to be performed on plaintiff. The CAT scan revealed that plaintiff had a lumbar disc rupture.
Dr. Hawk referred plaintiff to defendant, Dr. Ashby, to discuss the nature of treatment through chemonucleolysis. Chemonucleolysis is a process in which chymopapain 1 is injected directly into the nucleus pulposus of the damaged disc. The enzyme in the chymopapain shrinks the disc thereby eliminating the pressure and pain caused by the damaged disc. Chemonucleolysis provides an alternative to laminectomy or dissectomy, both invasive surgical procedures. Plaintiff eventually decided to undergo the chemonucleolysis treatment.
In October 1983, Dr. Ashby injected plaintiff with a dose of chymodiactin. 2 Plaintiff complained of continued pain in his back. Additionally, plaintiff suffered from pain in his right leg, headaches, occasional incontinence and sexual dysfunction. Plaintiff's disabilities led to decreased job performance and decline in sales and customer satisfaction. In June 1984, plaintiffs, Ronald and Sharon Pollard, brought a medical malpractice action against Dr. Ashby. Plaintiffs later amended their petition to assert several claims against Smith Labs; a strict liability product defect action, a strict liability failure to warn action, and a negligent failure to warn action. After a two week trial, plaintiffs' case against Smith Labs was submitted to the jury only on the issue of strict liability failure to warn. The jury returned a verdict against Smith Labs in favor of Ronald Pollard in the amount of $700,000. The jury found in favor of Dr. Ashby on Ronald Pollard's claim and in favor of both defendants on Sharon Pollard's claim, for loss of consortium.
Soon after the injection, the plaintiff began to display symptoms characteristic of a subarachnoid hemorrhage, 3 i.e. poor balance, blurred vision, severe headaches and difficulty speaking. Additionally, plaintiff had high blood pressure, complained of pain, developed an inflammation of the pancreas, and displayed symptoms of right hemiparesis. CAT scans showed a small area of left frontal hypodensity consistent with a stroke in the left frontal lobe of the brain. 4 Plaintiff spent several days in intensive care and a total of four weeks in St. Joseph's Hospital. Thereafter, plaintiff received rehabilitative physical therapy at Deaconess Hospital for an additional four weeks. Shortly after being discharged from Deaconess Hospital, plaintiff returned to work.
The central issue in this case is whether the trial court properly instructed the jury as to plaintiffs' strict liability failure to warn claim. The trial court submitted the case to the jury using MAI 25.05:
Your verdict must be for plaintiff Ronald Pollard and against defendant Smith Laboratories, Inc., if you believe:
First, defendant Smith Laboratories, Inc. sold "Chymodiactin" in the course of defendant's business, and
Second, the "Chymodiactin" was then unreasonably dangerous when put to a reasonably anticipated use by defendant Richard Ashby, M.D. without knowledge of its characteristics, and
Third, defendant Smith Laboratories, Inc. did not give an adequate warning of the danger to defendant Richard Ashby, M.D., and
Fourth, the "Chymodiactin" was used in a manner reasonably anticipated, and
Fifth, plaintiff Ronald Pollard was damaged as a direct result of the "Chymodiactin" being sold without an adequate warning.
Smith Labs contends that the instruction should have required the jury to find that Smith Labs knew or reasonably should have known of the dangers of chymodiactin in order to find liability. Smith Labs' proposed instruction is set forth as follows:
Your verdict must be for the plaintiff Ronald Pollard and against defendant Smith Laboratories, Inc. if you believe:
First, defendant Smith Laboratories, Inc. sold "Chymodiactin" in the course of defendant's business, and
Second, the "Chymodiactin" was then unreasonably dangerous when put to a reasonably anticipated use by defendant Richard Ashby, M.D. without knowledge of its characteristics, and
Third, defendant Smith Laboratories, Inc. knew or reasonably should have known of the danger, and
Fourth, defendant Smith Laboratories, Inc. did not give an adequate warning of Fifth, the "Chymodiactin" was used in a manner reasonably anticipated, and
the danger to defendant Richard Ashby, M.D., and
Sixth, plaintiff Ronald Pollard was damaged as a direct result of the "Chymodiactin" being sold without an adequate warning.
Plaintiffs argue that Smith Lab's proposed instruction would have impermissibly injected negligence into a strict products liability action.
Plaintiffs brought their action for actual damages against Smith Labs based upon Restatement (Second) of Torts section 402A (1977), also known as strict liability in tort. 5 The Missouri Supreme Court adopted section 402A as the law of this State in Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362 (Mo.1969). Comment k to section 402A recognizes that certain useful and desirable products are incapable of being made safe for their intended and ordinary use. Restatement (Second) of Torts section 402A comment k (1977). Comment j to section 402A provides that in order to prevent an "unavoidable unsafe" product from being unreasonably dangerous, the seller may be required to give directions or warnings, on the container, as to its use. Id. Section 402A comment j. Otherwise, an injured party may have a cause of action based upon strict liability failure to warn. This court recognized such a cause of action in Racer v. Utterman, 629 S.W.2d 387, 393 (Mo.App., E.D.1981). See also MAI 25.05 (1981).
In Racer, the plaintiff was admitted to the hospital for a gynecological procedure. During the course of the operation, a disposable drape caught on fire resulting in serious burns to plaintiff. The cause was submitted to the jury on a strict liability failure to warn theory. This court affirmed the jury's actual damage award and found the surgical drape to be an unavoidably unsafe product. Id. at 393. The defendant manufacturer argued that the jury should have been required to find that defendant had knowledge, actual or constructive, of the dangerous condition of which a warning is required. Id. at 394. This court rejected the argument stating that knowledge, fault or conduct of the defendant is not relevant in a strict liability cause of action. Id. at 395. The court acknowledged, however, that public policy might require that protection from strict liability be afforded to products such as drugs whose dangers are not only unknown but incapable of determination. Id. While not deciding the issue, the court indicated a willingness to afford protection to drugs based upon comment j to section 402A. Id.
Comment k to section 402A specifically addresses the application of strict liability to unavoidably unsafe products such as prescription drugs. Comment k states:
k. Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by Thus, comment k would impose liability on a drug manufacturer only if it failed to warn of dangerous propensities which it either knew or should have known. A number of jurisdictions have applied comment k to cases involving the liability of drug manufacturers. See DeLuryea v. Winthrop Labs., 697 F.2d 222, 228-229 (8th Cir.1983); Basko v. Sterling Drug, Inc., 416 F.2d 417, 425-26 (2d Cir.1969); Chambers v. G.D. Searle & Co., 441 F.Supp. 377, 380-381 (D.Md.1975); Stone v. Smith, Kline & French Labs., 447 So.2d 1301, 1303-1304 (Ala.1984); Gaston v. Hunter, 121 Ariz. 33, 588 P.2d 326, 338-341 (Ariz.App.1978); Brown v. Superior Court (Abbott Labs.), 44 Cal.3d 1049, 245 Cal.Rptr. 412, 418-23, 751 P.2d 470, 477-81 (1988); Johnson v. American Cyanamid Co., 239 Kan. 279, 718 P.2d 1318, 1323 (1986). One court that has considered the matter rejected the application of comment k. Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 654-57 (1st Cir.1981). The California Supreme Court noted that comment k focuses on the blameworthiness of the manufacturer, thus sounding in negligence and departing from strict liability. Brown, 245 Cal.Rptr. at 416, 417 n. 4, 751 P.2d at 475, 476 n. 4.
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