Reeder v. Hammond, Docket No. 60677

• Decision Date: 06 July 1983
• Docket Number: Docket No. 60677
• Citation: 125 Mich.App. 223,336 N.W.2d 3
• Parties: Nancy REEDER and Edward Reeder, individually and as parents and next friend of Bonnie Reeder, a minor, Plaintiffs-Appellants, v. Ronald G. HAMMOND, M.D., Ronald G. Hammond, M.D., P.C., Vinod R. Vakhariya, M.D., jointly and severally, and Pennwalt Corporation and Wyeth Laboratories, jointly and severally, Defendants- Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 3

336 N.W.2d 3

125 Mich.App. 223

Nancy REEDER and Edward Reeder, individually and as parents and next friend of Bonnie Reeder, a minor, Plaintiffs-Appellants, v. Ronald G. HAMMOND, M.D., Ronald G. Hammond, M.D., P.C.,

Vinod R. Vakhariya, M.D., jointly and severally,

and Pennwalt Corporation and Wyeth

Laboratories, jointly and

severally,

Defendants-

Appellees.

Docket No. 60677.

Court of Appeals of Michigan.

Submitted Nov. 17, 1982.

Decided March 15, 1983.

Rehearing Denied May 13, 1983.

Released for Publication July 6, 1983.

Thomas H. Bleakley, P.C. by Thomas H. Bleakley, Detroit (Gagleard, Munro, Addis, Imbrunone & Gagleard by Michael A. Gagleard, Troy, of counsel), for plaintiffs-appellants.

Harvey, Kruse, Westen & Milan, P.C. by Paul S. Koczkur and Dane A. Lupo, Detroit, for Pennwalt Corp.

Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark by Konrad D. Kohl and Michael L. Updike, Farmington Hills, for Wyeth Laboratories.

Before WAHLS, P.J., and KELLY and LAMBROS ^*, JJ.

PER CURIAM.

This is a products liability action brought by plaintiffs Nancy and Edward Reeder on behalf of themselves and on behalf of their now five-year-old daughter, Bonnie, against Dr. Hammond, their physician, Pennwalt Corporation, the manufacturer of Biphetamine, and Wyeth Laboratories, the manufacturer of a birth control prescribed to Nancy Reeder. Biphetamine and birth control pills were prescribed for Nancy Reeder during the early stages of her pregnancy with Bonnie and allegedly, as a result, Bonnie was born with various birth defects, including mental retardation and blindness.

The case is before us on appeal by plaintiffs from the trial court's granting of summary judgment in favor of defendants Pennwalt and Wyeth only. We reverse in part and affirm in part.

Although the trial court failed to specify with particularity the grounds relied upon in granting its order of summary judgment in relation to the differing allegations contained in plaintiffs' amended complaint, we have no difficulty in discerning that on the facts of this case its decision was rendered in part under GCR 1963 117.2(1) and (3).

In reviewing a trial court's grant of summary judgment under GCR 1963, 117.2(1), this Court determines whether plaintiffs' claim as set forth in the complaint is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. All well-pleaded facts in the complaint are accepted as true. A motion for summary judgment under GCR 1963, 117.2(1) tests only the legal sufficiency of the pleadings and does not test the plaintiffs' ability to prove their allegations. Lompre v. Venetjoki, 76 Mich.App. 521, 257 N.W.2d 151 (1977).

In the instant case, plaintiffs argue that the trial court erred in granting summary judgment under GCR 1963, 117.2(1) since they specifically alleged in their complaint that defendants Pennwalt and Wyeth breached their duty to warn of the dangers associated with the use of their products, which breach proximately caused the injuries to plaintiffs. On appeal, as at oral argument on the motion for summary judgment, plaintiffs allege that defendants' duty to warn is owed not only to the treating physician but to the ultimate consumer as well.

In Michigan, a manufacturer of a prescription drug has a legal duty to warn the medical profession and not the patient of any risks associated with the use of its product. Smith v. ER Squibb & Sons, Inc, 405 Mich. 79, 88, 273 N.W.2d 476 (1979). See also Hasler v. United States, 517 F.Supp. 1262, 1268 (ED Mich., 1981). The adequacy of the warning is a question of fact, properly left to the jury. Formella v. Ciba-Geigy Corp, 100 Mich.App. 649, 655, 300 N.W.2d 356 (1980), lv. den. 411 Mich. 995 (1981). Thus, plaintiffs' complaint does state an actionable claim against Pennwalt and Wyeth with regard to their alleged failure to adequately warn the treating physician but does not state an actionable claim against Pennwalt and Wyeth with regard to their failure to directly warn Nancy Reeder.

The question remains whether there is a genuine issue of fact as to the adequacy of the physician warnings provided by both Pennwalt and Wyeth.

Under GCR 1963, 117.2(3), a grant of summary judgment is proper only when there are no material issues of fact and the trial court may determine as a matter of law the appropriate disposition of the claim. Summary judgment under GCR 117.2(3) should not result in a trial by affidavit and deposition substituting for a trial by jury, and the courts must not make findings of fact or judge the credibility of affiants or deponents. Littsey v. Board of Governors of Wayne State University, 108 Mich.App. 406, 416-417, 310 N.W.2d 399 (1981), lv. den. 413 Mich. 882 (1982). This Court is liberal in determining whether a genuine issue of fact exists. Rizzo v. Kretschmer, 389 Mich. 363, 372, 207 N.W.2d 316 (1973).

In the instant case, both defendants allege that there is no genuine issue of fact as to whether they breached their duty to warn Dr. Hammond of the risks associated with their products since both defendants contend that adequate warnings were given. Moreover, both defendants argue that even if the warnings were not adequate, Dr. Hammond's own negligence is an independent,...