Woodill v. Parke Davis & Co.

• Decision Date: 27 January 1978
• Docket Number: No. 76-1654,76-1654
• Court: United States Appellate Court of Illinois
• Parties: , 15 Ill.Dec. 900, 24 UCC Rep.Serv. 99 Robert E. WOODILL and Ellen Woodill, Individually and as parents and next friends of Eric Woodill, a minor, Plaintiffs-Appellants, v. PARKE DAVIS & COMPANY, a corporation, John G. Christensen, Joseph J. Nigro, William Petrando, Glen Ellyn Clinic, a corporation, Glen Ellyn Clinic, a partnership, and Central DuPage Hospital Association, a corporation, Defendants-Appellees.

Page 683

374 N.E.2d 683

58 Ill.App.3d 349, 15 Ill.Dec. 900,

24 UCC Rep.Serv. 99

Robert E. WOODILL and Ellen Woodill, Individually and as parents and next friends of Eric Woodill, a minor Plaintiffs-Appellants, v. PARKE DAVIS & COMPANY, a corporation, John G. Christensen Joseph J. Nigro, William Petrando, Glen Ellyn Clinic, a corporation, Glen Ellyn Clinic, a partnership, and Central DuPage Hospital Association, a corporation, Defendants-Appellees.

No. 76-1654.

Appellate Court of Illinois, First District, Fifth Division.

Jan. 27, 1978.

Rehearing Denied April 12, 1978.

John D. Hayes & Associates, Ltd., Chicago, for plaintiffs-appellants; John J. Lowrey and John D. Hayes, Chicago, of counsel.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for defendants-appellees; D. Kendall Griffith and John D. Cassiday, Chicago, of counsel.

SULLIVAN, Presiding Justice:

Plaintiffs appeal from an order granting the motion of Parke Davis & Company to dismiss the first three counts of a nine count amended complaint seeking damages for injury allegedly resulting from the use of a drug. Those three counts were directed against defendant only, and the case remains pending in the trial court on six counts against the other named defendants.

It appears from the amended complaint that the prescription drug pitocin, manufactured and sold by Parke Davis & Company (defendant) was given to Ellen Woodill, mother of Eric Woodill (Eric) while she was hospitalized as an obstetrical patient. The drug was administered to her by order of her physician while the fetus was in high station.

In Count I, which sounds in strict liability, Eric's parents seek damages for his serious injuries allegedly resulting from the administration of the drug to his mother. In Count II, also sounding in strict liability, Eric's parents seek to recover the medical expenses incurred by Eric's treatment and for their "mental anguish and distress by reason of the injuries to their son." In Count III, Eric's parents seek damages for Eric's injuries on a breach of implied warranty theory.

Defendant moved to dismiss, asserting generally that no cause of action was stated in either of Counts I, II or III. Memoranda were submitted to the court and, after a hearing, defendants' motion was granted. The issue on appeal concerns the propriety of this dismissal order.

OPINION

Regarding the dismissal of Count I, the parties have presented two questions in this appeal. The first concerns whether a cause of action exists in strict liability against a drug manufacturer for failure to give a proper warning. Plaintiffs argue that Illinois recognizes such an action and that they have stated its essential elements in their complaint; whereas, defendant posits that the failure to warn is a negligence theory which cannot be a basis of strict liability.

Both parties correctly agree that negligence is not an element of strict liability. This is evident from the Restatement (Second) of Torts, § 402A(2) (a), which provides that the doctrine applies even though "the seller has exercised all possible care in the preparation and sale of his product." See also, Liberty Mutual Insurance Company v. Williams Machine & Tool Co. (1975), 62 Ill.2d 77, 82, 338 N.E.2d 857, 860, where the court stated that the purpose of strict liability "is best accomplished by eliminating negligence as an element * * *."

Although failure to warn has its roots in negligence, we believe it is now well-recognized that a product may be defective or unreasonably dangerous under strict liability when it is not accompanied by an adequate warning of the danger attending its use. In Lawson v. G. D. Searle & Company (1976), 64 Ill.2d 543, 1 Ill.Dec. 497, 356 N.E.2d 779, which involved the use of the drug enovid, the court in approving an instruction as to the applicable law, stated as follows:

"The court's instruction * * * told the jury that Enovid could be considered unreasonably dangerous if 'it is not safe for such a use that is to be expected to be made of it and no warning is given.' This instruction parallels certain comments to section 402A of Restatement (Second) of Torts (1965). Comment h to that section states that a 'product is not in a defective condition when it is safe for normal handling and consumption,' but where the seller 'has reason to anticipate that danger may result from a particular use, as where a drug is sold which is safe only in limited doses, he may be required to give adequate warning of the danger * * *, and a product sold without such warning is in a defective condition.' " (Emphasis added.) (64 Ill.2d at 550, 1 Ill.Dec. at 500, 356 N.E.2d at 782.)

In Williams v. Brown Manufacturing Company, Inc. (1968), 93 Ill.App.2d 334, 360, 236 N.E.2d 125, 139, rev'd on other grounds (1970), 45 Ill.2d 418, 261 N.E.2d 305, it was stated:

"In the absence of adequate warning, liability may arise from use of an instrumentality not otherwise defective, since failure to warn may itself be the defect which causes injury."

In Frisch v. International Harvester Company (1975), 33 Ill.App.3d 507, 516, 338 N.E.2d 90, 97, it was stated that:

"(P)roducts otherwise not defective unaccompanied by proper warnings are covered under the theory of strict liability."

In Singer v. Sterling Drug, Inc. (7th Cir. 1972), 461 F.2d 288, it was held that defendants who manufacture and market prescription drugs without adequate warnings are subject to the doctrine of strict liability. See also, 2 Frumer & Friedman, Products Liability § 16A(4)(e) (1976); Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791, 808 (1966).

This brings us to the second question for our resolution; namely, whether in strict liability premised on the failure to warn it is necessary to allege or prove actual or constructive knowledge of the danger. In other words, is knowledge an essential element of such an action? Plaintiffs maintain that a failure to warn of danger may itself be the defect required in a strict liability action, and they take the position that the question of whether defendant knew or should have known of the danger is immaterial and not an element of their action based on the failure to warn of that danger. As support, they cite only Lawson v. G. D. Searle & Company (1976), 64 Ill.2d 543, 1 Ill.Dec. 497, 356 N.E.2d 779.

While Lawson does hold that the failure to warn may be a defect under strict liability, we view it as giving little support to plaintiffs' position that knowledge is not an element. First, because the question of whether it was required to be alleged and proved was not raised in Lawson, either in the trial court or on appeal. Secondly, because we have not been able to find, and plaintiffs have not pointed out any statement of the court in Lawson to the effect that actual or constructive knowledge of the danger was not required. Moreover, the allegations of the complaint in Lawson were not set forth in either the appellate (29 Ill.App.3d 670, 331 N.E.2d 75) or the supreme court opinions, so that we are unable to determine whether knowledge was in fact alleged in the complaint. We note, however, that it was established through letters sent by defendant to physicians throughout the country informing them of potentially harmful side effects of the drug. Further, it was indicated in Lawson that knowledge was required when, in a reference to section 402A, the court stated:

"Comment h to that section stated * * * where the seller 'has reason to anticipate that danger may result from a particular use, as where a drug is sold which is safe only in limited doses, he may be required to give adequate warning of the danger * * *.' " (64 Ill.2d at 550, 1 Ill.Dec. at 500, 356 N.E.2d at 782.)

It should also be noted that comment j to section 402A states:

"In order to prevent the product from becoming unreasonably dangerous, the seller may be required to give directions or warning, * * * (w)here * * * the product contains an ingredient * * * whose danger is not generally known, or if known is one which the customer 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. (Emphasis added.) (Restatement (Second) of Torts, Explanatory Notes § 402A, comment j, at 353 (1965).)

In addition, Dean Prosser, in his treatise on the law of torts, stated:

"The argument that industries producing potentially dangerous products should make good the harm, distribute it by liability insurance, and add the cost to the price of the product, encounters reason for pause, when we consider that two of the greatest medical boons to the human race, penicillin and cortisone, both have their dangerous side effects, and that drug companies might well have been deterred from producing and selling them. Thus far the courts have tended to hold the manufacturer to a high standard of care in preparing and testing drugs of unknown potentiality and in giving warning; but in the absence that this standard has not been met, they have refused to hold the maker liable for the unforeseeable harm." (Emphasis added.) (Prosser, Torts § 99, at 661 (4th ed. 1971).)

We conclude, therefore, that a manufacturer or seller has a duty to warn under strict liability only when it knows or should have known of the danger. The alternative, which plaintiffs urge, would impose a duty to warn of unknown dangers. It appears incongruous to require a defendant to warn of danger not known or which could not be anticipated.

For other jurisdictions supporting our conclusion that knowledge is a necessary element, see: Nissen Trampoline Company v. Terre Haute First National Bank (1975), Ind.App., 332 N.E.2d 820, rev'd on other grounds (1976), Ind., 358 N.E.2d 974; Phillips v. Kimwood Machine Company (1974), 269 Or. 485, 525...