Wechsler v. Hoffman-La Roche, Inc.

• Decision Date: 11 August 1950
• Citation: 198 Misc. 540
• Parties: Max Wechsler, as Administrator of The Estate of Carolyn Wechsler, Deceased, Plaintiff,<BR>v.<BR>Hoffman-La Roche, Inc., Defendant.
• Court: New York Supreme Court

198 Misc. 540

Max Wechsler, as Administrator of The Estate of Carolyn Wechsler, Deceased, Plaintiff,

v.Hoffman-La Roche, Inc., Defendant.

August 11, 1950.

Clarence E. Mellen for defendant.

Nathan Feldman for plaintiff.

RABIN, J.

The complaint recites that plaintiff's intestate died as a result of the administration of a drug manufactured by defendant which was sold only on prescription of a physician and was procured by the intestate pursuant to prescription. According to the complaint, the defendant knew of the fatal propensities of its product but in its communications to the medical profession concealed and made misrepresentations with respect thereto. Plaintiff sets forth three causes of action based upon the foregoing, sounding, respectively, in fraud, negligence and implied warranty. Defendant moves to dismiss each cause of action under subdivision 5 of rule 106 of the Rules of Civil Practice and, in the alternative, to cure those aspects of the complaint it deems defective under rules 103 and 90 of the Rules of Civil Practice.

Even before MacPherson v. Buick Motor Co. (217 N.Y. 382), a manufacturer or supplier was liable in deceit for fraud worked upon third parties not in privity of contract with the manufacturer or supplier. (Kuelling v. Lean Mfg. Co., 183 N.Y. 78.) Reliance upon fraudulent representations by persons who are not the direct addressees thereof but who may be intended or expected to learn of and act upon such representations will found an action in fraud and deceit. (Ultramares Corp. v. Touche, 255 N.Y. 170; Restatement, Torts, § 533.) Defendant here claims, however, that its representations were made to physicians and not to the intestate or persons of the class to which intestate belonged and would thus avoid liability in fraud even if the allegations in the complaint are true. But in my view one who misrepresents for his gain and benefit, at the expense of human life, should be answerable in fraud for all the reasonable and foreseeable consequences of his deception. (See Cooper v. Weissblatt, 154 Misc. 522, and cases cited and discussed at pp. 525-527.) If a more direct nexus between the fraudulent misrepresentation and the intestate is essential, it may be supplied by the circumstance that the physician who prescribed the drug was acting on behalf of the intestate and the fraud committed on the doctor was, therefore, a fraud upon the intestate. (Allen v. Addington, 7 Wend. 9; Raymond v. Howland, 12 Wend. 176; Culliford v. Gadd, 28 Jones & Sp. 343, affd. 139 N.Y. 618; Commonwealth v. Call, 21 Pick [Mass.] 515; 2 Mechem on Agency [2d ed.], § 2132, pp. 1704-1705; 91 A. L. R. 1364; cf. Restatement, Agency, § 268.) Another approach to the problem here involved was suggested by STEUER, J., in Marcus v. Specific Pharmaceuticals, Inc. (191 Misc. 285, 287), when he said: "To physicians it did make representations. And should any of these be false it might be claimed with propriety that they were made for the benefit of the ultimate consumers." I conclude that the first cause of action is sufficient in law.

The negligence branch of the suit appears to pose a question expressly left open in MacPherson v. Buick Motor Co. (supra, p. 390), in that the defendant's product could be purchased only on prescription thereby interjecting between the action of the defendant and the consumption of the drug by the intestate the surveillance of the defendant's product by the prescribing physician which would be reasonably expected from such physicians. (See Marcus v. Specific Pharmaceuticals, Inc., supra; cf. Marcus v. Specific...