Torsiello v. Whitehall Laboratories, Division of Home Products Corp.

• Decision Date: 23 January 1979
• Citation: 398 A.2d 132,165 N.J.Super. 311
• Parties: Gerald TORSIELLO and Carmen Torsiello, Plaintiffs-Appellants, v. WHITEHALL LABORATORIES, DIVISION OF HOME PRODUCTS CORPORATION, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 311

165 N.J.Super. 311

398 A.2d 132

Gerald TORSIELLO and Carmen Torsiello, Plaintiffs-Appellants, v. WHITEHALL LABORATORIES, DIVISION OF HOME PRODUCTS CORPORATION, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Sept. 25, 1978.

Decided Jan. 23, 1979.

Andrew P. Napolitano, Paramus, for plaintiffs-appellants (Vaccaro, Osborne & Curran, Paramus, attorneys).

David A. Weglin, East Orange, for defendant-respondent (Elliott N. Fabricant, East Orange, attorney).

Before Judges CONFORD, PRESSLER and KING.

The opinion of the court was delivered by

PRESSLER, J. A. D.

Plaintiff Gerald Torsiello took eight Anacin tablets a day for 14 months for relief of the pain of arthritis. This prolonged period of daily use ended when he suddenly suffered gastrointestinal hemorrhaging, ultimately diagnosed as "GI bleeding secondary to aspirin gastritis." He brought this action against defendant Whitehall Laboratories, the manufacturer of Anacin, relying on its alleged failure to have given adequate warning of this inherent danger of prolonged use of the product. He appeals from the involuntary dismissal of his action at the close of his proofs. Thus, this products-liability appeal raises the question, not heretofore addressed in a reported case in an American jurisdiction, of the legal adequacy of the customary manufacturer's warning regarding the use of a non-prescription aspirin product. There is a subsidiary question here raised. If the warning is in fact inadequate, is the manufacturer exculpated from liability by reason of the failure of a physician, subsequently consulted by the user of the product, to have given the patient a proper warning against prolonged use? We hold that these are both jury questions, and hence that the trial court erred in dismissing this action at the end of the plaintiffs' case.

Accepting as true all of the evidence supporting the claim and according thereto all favorable inferences deducible therefrom, see Dolson v. Anastasia, 55 N.J. 2, 258 A.2d 706 (1969), the facts projecting these legal issues, as adduced through the testimony of plaintiff and his expert medical witness, are as follows: In December 1973 plaintiff Gerald Torsiello (his wife sues Per quod ) while on his way to work slipped and fell apparently exacerbating a preexisting osteoarthritis of the right hip and injuring his right knee as well. He continued on his way, however, consulting the plant physician, a Dr. Hunziker, on his arrival. Various ameliorative measures including cold compresses followed by heat applications were prescribed as well as various prescription analgesics. These remedies failed to afford plaintiff any substantial relief from his pain, and some weeks later, towards the end of January 1974, he purchased a bottle of Anacin, a product manufactured by defendant, Whitehall Laboratories, after hearing it extolled in a television commercial as affording relief of arthritic pain. Before taking the Anacin, however, he read the label, which recommended a dosage not exceeding eight tablets a day and contained this warning:

CAUTION If pain persists for more than 10 days or redness is present, or in arthritic or rheumatic conditions affecting children under 12 years of age, consult a physician immediately.

He commenced taking the recommended dose, obtaining noticeable pain relief.

When plaintiff next saw Dr. Hunziker, he asked him if he could continue to use the product as it had afforded him relief. Dr. Hunziker told him that it was undoubtedly the aspirin component of the Anacin which was having the analgesic effect and that if it worked for him he could continue to take it. Plaintiff apparently saw Dr. Hunziker about 13 times over a period of approximately seven weeks for the sequelae of the fall and frequently requested and obtained from him reassurance as to the Anacin usage. Following his discharge from Dr. Hunziker's care, probably sometime in late winter or early spring 1974, plaintiff continued to take the recommended dosage of Anacin, ingesting between six and eight tablets daily. In so doing he relied on the label directions, assuming that no danger inhered in his use of the product so long as he did not exceed the recommended daily dosage. In March 1975, some 14 months after he had begun this daily Anacin regimen and approximately a year after he had last consulted Dr. Hunziker, he suffered an attack of gastrointestinal hemorrhaging resulting in a two-week hospitalization and an additional two-week convalescence at home. This action is to recover the damages thus sustained.

Plaintiff's expert witness, Dr. Rowland D. Goodman, an internist, opined that the gastrointestinal hemorrhage was caused by plaintiff's prolonged ingestion of the aspirin component of the Anacin. ¹ Each Anacin tablet, he explained, consists of 400 milligrams of aspirin and 32 milligrams of caffeine, the aspirin components being, in weight, some one-third greater than a plain aspirin tablet, which typically contains 300 milligrams of aspirin. He further explained that the salicylate compound which is the analgesic component of aspirin is, as a matter of medical and pharmaceutical knowledge, recognized as a gastrointestinal irritant and despite the inclusion of an anti-irritant component in aspirin, a significant number of people using aspirin over a long period of time develop gastrointestinal bleeding as the result of the continuing direct irritating effect of the salicylate compound on the membranes lining the stomach and intestinal tract.

The trial judge, in granting defendant's motion for involuntary dismissal, concluded that as a matter of law the sole duty of the manufacturer was to warn purchasers of the product not to use it for a period exceeding ten days without medical advice; that the extent of the manufacturer's duty did not include the obligation to warn consumers of any inherent dangers of the product, particularly those implicit in its prolonged use, and that in any event the dangers of prolonged use of aspirin products are commonly known to the consuming public. Thus, he reasoned that the warning here had proved adequate since it had achieved its exclusive legally-required objective of requiring plaintiff to consult a physician before continuing to use the product beyond a 10-day period. He also was of the view that any responsibility for plaintiff's harm was his own unreasonable use of the product or the fault of Dr. Hunziker or a combination of these two factors. We regard this thesis and each of the propositions on which it was predicated as legally untenable.

In dealing with the issues projected by this appeal, we address first the underlying legal theory which must govern their resolution. The action was pleaded both in ordinary negligence and, by asserting breach of warranty, in strict liability in tort. The trial judge considered the latter theory as exclusively applicable, and we are in full accord with his analysis in that regard. It is now clear that where actionable harm is alleged to have resulted from the use of a product distributed through the ordinary stream of commerce, the supplier's liability, if any, is appropriately predicated on the principles of strict liability in tort rather than upon either a negligence or contract cause of action as traditionally conceived. It is further clear that in respect of the definitional scope of the cause of action of strict liability in tort, the jurisprudence of this State has both initially impelled and continues to adhere to the principles of § 402A of Restatement, Torts 2d (1965). See, E. g., Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152, 167-169, 386 A.2d 816 (1978); Heavner v. Uniroyal, Inc., 63 N.J. 130, 146-152, 305 A.2d 412 (1973). The black letter of § 402A reads in full as follows:

Special Liability of Seller of Product for Physical Harm to

User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

As noted in Cepeda, Supra, 76 N.J. at 168-169, 386 A.2d 816, the black letter is explicated, qualified, and supplemented by its 17 lettered comments, some of which have become fully incorporated into the fabric of the law of this jurisdiction, and none of which has as yet been expressly rejected by our courts. It is Comment (j), to which we subscribe, which we regard as applicable here. Comment (j) reads in full as follows:

j. Directions or warning. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. The seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them. Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger. Likewise in the case of poisonous drugs, or those unduly dangerous for other reasons, warning as to use may be...