(dissenting). We dissent and would affirm.
The majority having found that there “is sufficient evidence in the record to sustain a finding that the surgery was unnecessary”, the only issue on which we differ and on which the court erroneously has reversed and remanded, is as to the nature and function of the Physicians Desk Reference (PDR). The PDR is simply a compilation of the pocket inserts for a drug.
*216The manufacturers of a drug are required by statute (US Code, tit 21) and regulation (21 CFR — Food and Drugs), after appropriate investigation, see Bichler v Lilly & Co. (55 NY2d 571) to supply information respecting the formulation of the drug and instructions for the approved use of the product. The statute and regulation are, of course, matters of judicial notice (CPLR 4511).
The manufacturer’s liability, if any, would be directly related to the adequacy of the information provided. (See Wolfgruber v Upjohn Co., 72 AD2d 59, affd for reasons stated at App Div, Mr. Justice Cardamone 52 NY2d 768.) In this situation, the PDR showed that the use of Sotradecol as administered in this case was contra-indicated.
Under the circumstances, the PDR could not be considered hearsay but rather was a material and relevant condition inherent in the use of the drug. Further, the expert witnesses for the defendant having referred to the PDR, it was proper for it to be used on their cross-examination.
As was said by the Court of Appeals in the recent case of Bichler v Lilly & Co. (supra, pp 579-580): “Products liability law cannot be expected to stand still where innocent victims face ‘inordinately difficult problems of proof’ (Caprara v Chrysler Corp., 52 NY2d 114, 123).”
By analogy, it is unfair to the plaintiff-respondent to attempt to prevent her from using the very basis for the origination of the drug involved as the standard against which the defendants must explain their course of action.
Ross and Bloom, JJ., concur with Asch, J.; Kupferman, J. P., and Lupiano, J., dissent in an opinion by Kupferman, J. P.
Judgment, Supreme Court, Bronx County entered on December 29,1980, reversed, on the law, and the facts, and the matter remanded for a new trial with costs to abide the event.