Winthrop Laboratories Division of Sterling Drug, Inc. v. Crocker

Decision Date21 November 1973
Docket NumberNo. 6308,6308
Citation502 S.W.2d 850
PartiesWINTHROP LABORATORIES DIVISION OF STERLING DRUG, INC., a corporation, Appellant, v. Clarissa CROCKER, Individually and on Behalf of the Estate of Glenn Crocker, Deceased, et al., Appellees.
CourtTexas Court of Appeals

Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N. M., Scott, Hulse, Marshall & Feuille, Schuyler B. Marshall, El Paso, for appellant.

Malcolm McGregor, Grambling, Mounce, Deffebach, Sims, Hardie & Galatzan, Morris A. Galatzan, El Paso, for appellees.

OPINION

OSBORN, Justice.

This is a products liability case involving liability of a drug manufacturer under the Restatement of the Law of Torts, Second, Section 402B. Suit was brought by Clarissa Crocker, Individually and on behalf of the Estate of Glenn E. Crocker, Deceased, against Winthrop Laboratories, Division of Sterling Drug, Inc., and Dr. Eugene Engel, claiming that Mrs. Crocker's husband had become addicted and dependent upon an analgesic medication known as Talwin, which ultimately caused his death. An intervention was filed by the deceased's employer's compensation carrier. The suit against the doctor was settled prior to trial, and the case against the drug company went to the jury for their answers to thirty-eight special issues. Upon their verdict, judgment was entered in the trial Court for Mrs. Crocker. That judgment is reversed and rendered.

The evidence reveals that prior to the events leading up to this lawsuit, the deceased, Glenn E. Crocker, had received medication for arthritis for many years and for diabetes since May, 1967. In June, 1967, Mr. Crocker had an industrial accident while working in a cold storage facility. He received a hernia and it was subsequently determined that he received a severe frostbite to his left thumb and right middle finger. The hernia was surgically repaired in July, 1967, at which time morphine was administered and thereafter Demerol and Darvon were used for postsurgical pain. Subsequently, the condition of his finger and thumb caused his doctor to refer him to an internal medical specialist who hospitalized Mr. Crocker for five days beginning on September 18, 1967, for a thorough evaluation. On September 23, 1967, the referring doctor gave him two prescriptions for Demerol and referred him to an orthopedist. The orthopedist referred Mr. Crocker to a plastic surgeon and the latter hospitalized him for a skin graft on September 28, 1967. At that time, he received Demerol and Talwin. The patient was again hospitalized in October, 1967, for skin graft, at which time both Demerol and Talwin were administered. In November, 1967, Mr. Crocker was hospitalized on two occasions during which time both Demerol and Talwin were again administered to him, and the end of his thumb was amputated.

Mr. Crocker continued to receive prescribed doses of Talwin through December, 1967, January and February, 1968. Two doctors were prescribing Talwin and each attempted to reduce the doses. As it was reduced, Mr. Crocker began to buy Talwin in Juarez, Mexico, since it was available there without prescription. During this time, he also saw Dr. Engel for injections of Demerol. By June, 1968, his wife persuaded him to be hospitalized under the care of another physician for detoxification. He was hospitalized for six days, at which time he slipped out of the hospital and went home. At Mr. Crocker's insistence, his wife called Dr. Engel, who administered a double dose of Demerol on June 10, 1968. Mr. Crocker then went to sleep and died.

The Appellant developed and placed on the market in July, 1967, the pain-killing drug, called Talwin, which was advertised and sold as a non-narcotic drug. Although the advertising literature did not indicate that the use of the drug would not cause physical dependence or addiction, it did indicate that patients with chronic pain who used Talwin for prolonged periods (over 300 days) experienced no withdrawal symptoms even when administration was stopped abruptly. It did indicate that patients dependent on narcotics and receiving Talwin might experience certain withdrawal symptoms and that in such cases it should be administered with special caution.

The orthopedist testified that he was told by the Appellant's detail man, who had contacted him when Talwin came on the market, that the drug was perfectly harmless and that the doctor could prescribe all he wanted and there would be no physical addictions. This same doctor expressed the opinion at the trial that Mr. Crocker was addicted to Talwin when he was hospitalized in November, 1967, although in his pre-trial deposition he said the deceased was first addicted to Demerol.

The Appellant offered extensive evidence from several witnesses concerning the development and testing of Talwin before it was placed on the market as a prescription drug. The evidence indicated a long recognized need in the medical profession for a strong pain relieving drug which did not have dependence producing properties such as morphine, which was recognized as being highly addictive. In 1960, the Appellant discovered the drug Talwin which was a chemical that had strong pain relieving effects, but apparently without any dependence producing properties. Initially, laboratory tests were performed on animals and subsequently the medication was turned over to the Committee on Drug Addiction and Narcotics, an independent organization composed of members of the National Academy of Science for further testing. The drug was then tested by qualified physicians and by the United States Public Health Service. Subsequently, the National Academy of Science's Committee on Drug Dependence recommended to the U.S. Bureau of Narcotics that Talwin be classified as a non-narcotic drug. This recommendation was accepted and subsequently application was made to the Federal Drug Administration for permission to market the drug. At the time of the application, Talwin had been tested in 17,000 patients with no report of addiction or drug dependency. After the Federal Drug Administration approved the sale of Talwin to the public it was placed on the market in July, 1967, as a new potent non-narcotic injectable analgesic to relieve pain of all types and degrees in patients with acute and chronic disorders.

By the time of Mr. Crocker's death in June, 1968, the Appellant had sold approximately 34,900,000 doses of the drug and by May 1, 1972, over 800,000,000 doses had been sold. Although the evidence was conflicting as to the number of cases of drug addiction, from the use of Talwin at the time of Mr. Crocker's death, on June 10, 1968, the witnesses for the Appellant acknowledged that at that time they had received four reports of which three were possible dependencies. It was estimated that as of June 10, 1968, three and a half million patients had been treated with Talwin. The proof established that after the death of Mr. Crocker, but prior to the trial of this case, advertising materials had been amended to warn of psychological and physical dependence on Talwin in patients who were emotionally unstable or who had a history of drug abuse.

The jury, in response to special issues submitted to them, made the following findings:

1. That the drug company failed to advise the public during 1967 that Talwin could cause physical dependence.

2. Such failure to advise the public made Talwin unreasonably dangerous.

3. That the drug company represented to the medical profession in 1967 that Talwin would not cause physical dependence.

4. That such representation was relied on by the orthopedic specialist who prescribed it.

5. That the deceased became physically dependent on Talwin.

6. The sum of $33,000 in damages for conscious pain and suffering by Mr. Crocker prior to his death as a result of his dependency on Talwin.

7. That the deceased's physical dependence on Talwin was a producing cause of his death.

8. The sum of $113,870 in damages to the widow for her pecuniary loss, resulting from the death of her husband.

9. That Crocker's addiction or dependency on Talwin was an abreaction.

10. That at the time in question, the state of medical knowledge was such that the drug company could not reasonably have foreseen that Talwin would cause addiction in an appreciable number of persons.

11. That by January, 1968, Crocker did not know of the risk of addiction to Talwin.

14. That Crocker was not negligent in securing and taking Talwin without a doctor's prescription between January and June, 1968.

16. That Crocker was negligent in securing and taking Talwin and other medicines from different doctors without advising such doctors of his prior use of such drugs; and (17) That this was a proximate cause of his death.

18. That Crocker was negligent in discontinuing his withdrawal medical treatment; and (19) This was a proximate cause of his death.

20. That Crocker was not negligent in continuing to take Talwin against the advice of his treating physician after January, 1968.

22. That Crocker was not negligent in demanding and receiving an injection of Demerol on the night of his death.

24. That Crocker was not negligent in taking injections of Demerol at least once a week from December, 1967, to June 10, 1968.

26. That Crocker first became an addict as a result of taking a drug other than Talwin; but (27) Failed to find that this addiction continued until the death of Crocker.

28. That Mrs. Crocker was not negligent in failing to have Crocker hospitalized during the day of his death.

30. That Mrs. Crocker failed to inform Dr. Engel that Crocker had been undergoing withdrawal treatment; but (31) That this was not negligence.

33. That Crocker died as a proximate result of a heart attack; but (33--A) Failed to find that the heart attack was not proximately caused by Crocker's use of Talwin.

34. That Dr. Engel was not negligent in giving Crocker the Demerol injection just prior to his death.

36. That Dr....

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