Ross v. Jacobs

• Decision Date: 20 March 1984
• Docket Number: No. 59770,No. 4,59770,4
• Citation: 684 P.2d 1211
• Parties: 1984 OK CIV APP 17 John R. ROSS and Bessie Ross, Appellants, v. William S. JACOBS, M.D.; William S. Jacobs, M.D., Inc., a corporation; American Cyanamid Company, a corporation; and Lederle Laboratories, a division of American Cyanamid Company, Appellees
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1211

684 P.2d 1211

1984 OK CIV APP 17

John R. ROSS and Bessie Ross, Appellants, v. William S. JACOBS, M.D.; William S. Jacobs, M.D., Inc., a corporation; American Cyanamid Company, a corporation; and Lederle Laboratories a division of American Cyanamid Company, Appellees.

No. 59770.

Court of Appeals of Oklahoma, Division No. 4.

March 20, 1984.

Released for Publication by Order

of the Court of Appeals June 25, 1984.

Appeal from the District Court of Tulsa County; David E. Winslow, Trial Judge.

Appellants challenge trial court's ruling granting summary judgment to manufacturer of drug. The use of the prescription under the supervision of defendant physician had allegedly caused a loss of vision. The trial court ruled that the warning given defendant physician was adequate to discharge manufacturer's duty to warn.

REVERSED AND REMANDED.

W.C. Sellers, Sapulpa, and Gerald L. Michaud, Wichita, Kan., for appellants.

Wm. S. Hall, Feldman, Hall, Franden & Woodward, Tulsa, for appellees American Cyanamid Co. and Lederle Laboratories.

STUBBLEFIELD, Judge.

This is a medical malpractice/manufacturers' products liability case involving the question of the adequacy of the warning given to the physician and consumer regarding possible adverse effects of the prescription drug Myambutol. The defendant manufacturer moved for summary judgment, requesting the court to rule that its duty to warn was discharged by the warning of possible side effects given to plaintiff's physician. The trial court agreed and granted summary judgment. We reverse and remand.

STATEMENT OF FACTS

On August 13, 1979, while plaintiff, John R. Ross, was under the care of William S. Jacobs, M.D., the drug Myambutol was prescribed for Mr. Ross' treatment. Myambutol (ethambutol hydrochloride) was manufactured and marketed by the Lederle Laboratories Division of American Cyanamid Company. Mr. Ross continued on Myambutol (administered concurrently with other medication) until mid-December, 1979. At that time, Mr. Ross reported a loss of vision to Dr. Jacobs, which had arisen two or three days earlier. The doctor terminated the administration of Myambutol.

Ross' vision did not improve even though the drug use had been discontinued. His vision, indeed, continued to deteriorate. On later testing his vision was found to be 20/400, a visual impairment greater than that which constitutes legal blindness. Prior to the drug therapy, Ross' vision had tested as 20/25.

On August 6, 1981, Ross and his wife, Bessie Ross, filed an action against Dr. Jacobs for alleged medical malpractice. On November 5, 1981, an amended petition was filed which also named American Cyanamid (Cyanamid) and Lederle Laboratories (Lederle) as parties defendant. In a third amended petition filed January 6, 1983, the following allegations were made against Cyanamid and Lederle:

"a. That defendants Cyanamid and Lederle failed to adequately warn the medical profession and defendant Jacobs that the use of Myambutol was likely to cause a condition known as 'optic neuritis' and hence carry the specific risk of loss of permanent vision; that any warnings which were given by defendants Cyanamid and Lederle concerning this unreasonably dangerous side effect caused by the taking of Myambutol were ambiguous, incomplete, inadequate, watered-down, and lacked emphasis commensurate with the risks involved.

"b. That the means by which defendants Cyanamid and Lederle undertook to warn the medical profession and defendant Jacobs concerning this unreasonably dangerous side effect caused by the administration of Myambutol were inadequate to effectively convey said warnings;

"c. That defendants Cyanamid and Lederle negligently failed to offer more detailed and pronounced warnings concerning this dangerous side effect caused by the administration of Myambutol, or in the alternative, remove their product from the market, after having received numerous complaints in the past concerning the adequacy of the warnings given and the resulting blindness of others.

"d. That defendants Cyanamid and Lederle negligently failed to additionally test and investigate the extent of the dangerous propensities associated with the administration of Myambutol;

"e. That defendants Cyanamid and Lederle negligently failed to maintain current information gathered from research adverse reaction reports, scientific literature, and other available methods concerning the incidents of permanent blindness caused from the taking of Myambutol."

The defendants, Cyanamid and Lederle, filed a motion for summary judgment, seeking a ruling that the warning given by them to Dr. Jacobs was sufficient as a matter of law to discharge their duty to warn of possible adverse consequences of the use of the drug. The trial court, on September 27, 1983, ruled that the warning of Cyanamid and Lederle had met "the requirements under Oklahoma case law as to the warning manufacturers should give for use of this type of material," and dismissed them from the lawsuit. Plaintiffs appeal.

I

In review of a motion for summary judgment it is first helpful to restate the applicable rules regarding our scope of review.

Summary judgments, although promoting the highly desirable goal of efficiency in our court system, are looked upon with disfavor by the court, as they prevent litigants from having their day in court, and, if improperly utilized, could result in a miscarriage of justice. "Such [summary] judgments partake of the nature of judgments on the pleadings which are not favored by the courts, and should only be entered where no issue is joined." Love v. Harvey, Okl., 448 P.2d 456 (1968); see also Atchison, Topeka and Santa Fe Ry. v. Coulson, Okl., 371 P.2d 914 (1962).

The critical issue here, and the one presented in plaintiffs' sole proposition of error, is whether the trial court's factual determination as to the adequacy of the manufacturer's warning was correct.

The trial court, in its ruling, stated that "[g]oing on the criteria in the Moore case [McKee v. Moore, Okl., 648 P.2d 21 (1982) ], I'm finding that this meets the requirements under Oklahoma case law as to the warning manufacturers should give for use of this type of material." The court's ruling additionally relied on the fact that Dr. Jacobs did not follow the recommended procedures and dosage listed in the manufacturer's warning. The latter argument apparently implies that the manufacturer is further removed from potential liability by the doctor's disregard of the warning. The conclusion, though not well elucidated by the trial court, seems to be that the warning, adequate or not, was not followed by the physician and that this intervening negligence would preclude manufacturer's liability.

In reviewing the McKee (Moore) case relied upon by the trial court, we conclude that McKee does not establish criteria for determining adequacy of warning. McKee merely stands for the proposition that (unless required by Food and Drug Administration rules) it is not necessary for manufacturers of prescription drugs to warn the ultimate consumer of possible adverse side effects from the drug's use. Adequate warnings to the physician fulfill the manufacturer's duty to warn. Any warning given to physicians, however, is not sufficient. It must be adequate.

Here, plaintiffs complain that the warning to the physician was not adequate. Plaintiffs allege that the warning given to Dr. Jacobs was inadequate and misleading, and tended to downplay possible adverse consequences of use of the drug. We, therefore, do not find McKee dispositive. McKee clearly approves of a warning to the physician as opposed to a direct warning to the consumer, but offers no help in ascertaining whether the warning of Cyanamid/Lederle was adequate so as to fulfill the duty to warn of the possibility of adverse effects from use of the product. There is no dispute as to what warning was given, but was it, as a matter of law, adequate to warn physicians of a known danger?

The test for determining the propriety of a summary judgment where the facts are not in dispute, but the conclusions to be drawn from them are, was set out by the Oklahoma Supreme Court in Stuckey v. Young Exploration Co., Okl., 586 P.2d 726 (1978):

"If reasonable men in the exercise of fair and impartial judgment might reach different conclusions upon consideration of pleadings, affidavits, exhibits, admissions, depositions and the like, summary judgment is improper."

The critical question then is whether a genuine issue exists as to the inferences or conclusions that may be properly drawn from the evidence. These inferences must be viewed in the light most favorable to plaintiffs and the judgment reversed if inferences contrary to those drawn by the trial court might be permissible. Salmon v. Parke, Davis and Co., 520 F.2d 1359 (4th Cir.1975).

A review of the warning from the perspective of a reasonable man to determine its adequacy requires consideration of several facets of the problem. It requires consideration of the warning in the context of what dangers the manufacturer knew existed. Likewise, the manufacturer's response to the developing body of information regarding adverse drug reactions is important. Was the modification of the warning made by manufacturer a reasonable response to newly acquired knowledge?

There is little existing Oklahoma case law to further guide our examination. Some help, however, can be gained from other jurisdictions' attempts to deal with the issue.

We initially conclude that most courts have been reluctant to decide adequacy of warning as a matter of law. It has generally been left for resolution by the trier of fact. Richards v. UpJohn Co., 95 N.M. 675, 625 P.2d 1192 (Ct.App.1980); McFadden v. Haritatos, 86 A.D.2d 761, 448 N.Y.S.2d 79 (1982).

But when courts have been required to delve into the adequacy of warning (generally to ascertain the...