Seley v. G. D. Searle & Co.

Clifford F. Brown, J.,

dissenting.

I.

It is my view that the Court of Appeals correctly reversed the jury verdict in favor of G.D. Searle & Company (Searle), in case No. 80-336. At issue is the liability of Searle, in light of Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, in which this court adopted Section 402 A of the Restatement of Torts 2d dealing with the theory of strict liability. The majority opinion acknowledges that the damages sought by plaintiffs from Searle derive from the rule set forth in Section 402 A, particularly Comment k of that section. The critical issue for the jury is whether the warning given about the use of Ovulen was adequate in the light of the state of medical and scientific knowledge at the time of manufacture and distribution of the drug. Mahr v. G. D. Searle & Co. (1979), 72 Ill. App. 3d 540, 390 N.E. 2d 1214;10 Hamilton v. Hardy (1976), 37 Colo. App. 375, 549 P. 2d 1099; Carmichael v. Reitz (1971), 17 Cal. App. 3d 958, 95 Cal. Rptr. 381.

*212The jury instructions given by the trial court concerning the liability of Searle permitted the jury to disregard the rule of strict liability, and further permitted the jury to find that Searle was not liable in the absence of negligence on its part.11

In giving his instructions to the jury, the trial judge used the term “ordinary care.” The concept of ordinary care has no proper place in the theory of strict liability. Its use when discussing strict liability could only confuse and mislead the jury with regard to its duty to determine the liability of Searle.12

*213By incorporating negligence concepts into the instructions to the jury on strict liability, the trial court committed clearly prejudicial and reversible error.

The trial court also erred by withdrawing from the jury the question of the adequacy of the warning about the dangerous propensities of Ovulen to the user. The record demonstrated that Searle published pamphlets in lay language intended for the user. Reasonable minds could conclude that these were, in essence, promotional pamphlets designed to sell a product.

Searle may well have had no duty to warn prospective users by direct communication, but having undertaken to do so voluntarily, Searle must inform prospective users fully in its promotional literature.13

Given this factual posture, the issue of adequacy of warning to the user of the dangerous propensities of Ovulen, and Angela Seley’s reliance on the warning directed to her was properly a question for the jury. Withdrawal of such vital issue from the jury was prejudicial and reversible error because it went to the very heart of plaintiffs’ claim for recovery.

II.

With reference to case No. 80-360, it is my view that the Court of Appeals’ affirmance of the jury verdict in favor of defendants, Francis J. Froehlich, M.D., the prescribing and treating physician, and his professional corporation, should be reversed, and the plaintiffs granted a new trial as to these defendants.

*214This action was for medical malpractice based upon Dr. Froehlich’s negligence in prescribing Ovulen, and his failure to obtain consent for the use of the drug from Angela Seley.

The trial court committed reversible error, prejudicial to plaintiffs, when it gave jury instructions requiring proof of each of five items before permitting plaintiffs to recover.14 However, it was not necessary for plaintiffs to prove that Angela Seley had suffered from elevated blood pressure before the stroke. It was necessary for plaintiffs to prove that the use of the pill prescribed for her by Dr. Froehlich caused her stroke. The plaintiffs presented such evidence through their expert witnesses, thereby raising the jury question whether this conduct constituted negligence. The instruction, as formulated, placed a greater burden of proof on plaintiffs than the law requires.15

Accordingly, due to the erroneous jury instruction on Dr. Froehlich’s negligence, the Seleys’ fifth proposition of law is well taken.

The Court of Appeals found the jury instruction, even if *215erroneous, was not prejudicial, due to the jury’s finding that Dr. Froehlich did not know of Angela Seley’s past history of hypertension. In reaching this unfounded conclusion, the Court of Appeals failed to consider the jury’s conclusion, in response to the special interrogatory, that Angela Seley was not guilty of contributory negligence. This conflicts with another jury response to an interrogatory stating Angela Seley did not inform Dr. Froehlich of her hypertension.

Despite the fact that twice plaintiffs requested the trial court to read the instructions dealing with the theory of informed consent by Angela Seley, at the time the jury requested further instructions on the negligence of Dr. Froehlich, the trial court refused such requests. The informed consent of Angela Seley was an issue for the jury to decide. Bruni v. Tatsumi (1976), 46 Ohio St. 2d 127, at pages 136-137. See American Steel Packing v. Conkle (1912), 86 Ohio St. 117; Belcher v. Carter (1967), 13 Ohio App. 2d 113; Berkey v. Anderson (1969), 1 Cal. App. 3d 790, 82 Cal. Rptr. 67. Given these circumstances, the evident confusion of the jury on this issue demands a new trial.

Donofrio, J., concurs in the foregoing dissenting opinion as to case No. 80-336 only.

Mahr, at page 560 holds:

“Unlike an action premised on negligence, the standard by which the law measures liability of a manufacturer sued for strict liability in tort does not relate to reasonableness of due care of conduct under scrutiny. Here the duty is stated in more positive fashion and breach is found in an undertaking which falls short of ordinary considerations of fault.”

Mahr, at page 563, further holds that “[t]he inadequacy of the warnings [by the manufacturer to the physician]* * *is a question of fact within the prerogative of the jury.”

In Mahr, supra, a jury verdict for plaintiff for $100,000 against the same defendant, G. D. Searle & Co., was affirmed by the Illinois Appellate Court.

The jury instruction, in relevant part, was as follows:

“If the defendants Searle made available adequate warnings to the medical profession to summarize medical or scientific information reasonably known or discoverable by said defendants in the exercise of ordinary care at the time Ovulen-21 was prescribed for the plaintiff, the defendants Searle complied with their duty to give warning.”

“With respect to the issue of warning, when I use the words ‘ordinary care,’ I mean the care that a reasonably careful pharmaceutical company would use under circumstances similar to those shown by the evidence.” (Emphasis added.)

With regard to this observation, the following from the case of Hamilton v. Hardy, supra, at page 383, is applicable:

“Under strict liability, the test is whether the failure of Searle [the same company as in the matter sub judice] to adequately warn of the potentially dangerous propensities of its product rendered that product unreasonably dangerous. It is of no import whether this drug manufacturer’s warning comported with the warning a reasonably prudent drug manufacturer would have given. ‘ [S] tract tort liability shifts the focus from the conduct of the manufacturer to the nature of the product.’ ” (Citations omitted.)

On strict liability pertaining to the manufacturer of dangerous drugs, the Superior Court of Texas, in Crocker v. Winthrop Lab. (Tex. 1974), 514 S.W. 2d 429, at page 432, held:

“The failure to warn of a danger cannot always be excused by the mere fact that the potentially endangered users are few in number. Furthermore, some products, though manufactured as designed and intended, are so dangerous in fact that the manufacturer should be liable for resulting harm though he did not and would not have known of the danger at the time of marketing.”

The distinction between negligence and strict liability based on failure to warn is well stated in Phillips v. Kimwood Machine Co. (1974), 269 Ore. 485, 525 P. 2d 1033, at page 498:

“In a strict liability case we are talking about the condition (dangerousness) of an article which is sold without any warning, while in negligence we are talking about the reasonableness of the manufacturer’s action in selling the article without a warning. The article can have a degree of dangerousness because of a lack of warning which the law of strict liability will not tolerate even though the actions of the seller were entirely reasonable in selling the article without a warning considering what he knew or should have known at the time he sold it.”

See, e.g., Briere v. Lathrop Co. (1970), 22 Ohio St. 2d 166; Indian Towing Co. v. United States (1955), 350 U.S. 61; Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E. 2d 769; Sweet v. Ringwelski (1961), 362 Mich. 138, 106 N.W. 2d 742; Albresch v. Northwestern Bell Tel. Co. (1956), 246 Minn. 408, 75 N.W. 2d 206.

The informational literature, and warnings of danger by using Ovulen contained therein, given by defendant Searle to plaintiffs physician does not automatically absolve defendant Searle of liability. Mahr v. G. D. Searle & Co., supra, holds at page 561:

“[W]hile the [prescription drug] manufacturer’s duty to warn is for the benefit of the ultimate consumer of its products, the physician, in the role of a learned intermediary, is the person to whom the warnings are to be communicated. * * * [H] owever, the adequacy of the communication of the warning is not judged solely by reference to the information supplied by the manufacturer to the prescribing physicians.” See, also, McEwen v. Ortho Pharmaceutical Corp. (1974), 270 Ore. 375, 528 P. 2d 522; Vaughn v. G. D. Searle & Co. (1975), 272 Ore. 367, 536 P. 2d 1247.

Such jury instruction is set forth verbatim in the majority opinion.

The correct rule of law on medical malpractice negligence on which the jury should have been instructed is as follows:

“In order to establish medical malpractice, it must be shown by a preponderance of evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence, would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and the injury complained of was the direct and proximate result of such doing or failing to do some one or more of such particular things.” Paragraph one of the syllabus in Bruni v. Tatsumi (1976), 46 Ohio St. 2d 127.

Contrary to the rule of law announced by this court in Bruni, supra, the trial court singled out certain items of proof and gave them undue emphasis, requiring plaintiffs to prove each of such items seriatim before the negligence of Dr. Froehlich could be established. This is not the law as embodied in Bruni, supra. 53 Ohio Jurisprudence 2d, Trial Sections 174-177. It was for the jury to determine what items of evidence constituted negligence of the Dr. Froehlich within the confines of Bruni, supra.

The jury instruction should have been broad enough for the jury to determine that Dr. Froehlich was guilty of negligence by prescribing Ovulen for Angela Seley in the light of her past history, or that he was guilty of malpractice by failing to monitor her sufficiently after prescribing the pill. Plaintiffs presented expert testimony on both aspects or theories. It was not necessary for plaintiffs to prove Dr. Froehlich negligent in both respects. Deviation by Dr. Froehlich from the standard of care in either respect entitled plaintiffs to a verdict in their favor.