Hahn v. Richter

CAPPY, Justice,

dissenting.

Today the majority creates an exemption which removes all prescription drugs from the ambit of strict liability failure to warn. Because I find the reasoning employed by the majority to be flawed, I must respectfully dissent.

In support of its holding, the majority relies primarily on two cases: Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971) and Baldino v. Castagna, 505 Pa. 239, 244, 478 A.2d 807 *564(1984). Reliance on these cases is questionable. In both cases, the plaintiffs’ actions sounded in negligence, and not strict liability. See Incollingo, 444 Pa. at 269 and 285, 282 A.2d at 211 and 218; Baldino, 505 Pa. at 242, 478 A.2d at 808. Therefore, this Court’s employment of a negligence standard in these cases was not, as the majority seems to believe, tantamount to creating a holding that in cases concerning prescription drugs, negligent failure to warn and strict liability failure to warn are coextensive.

Not only are the cases cited by the majority inapposite, but existing case law is actually contrary to the position it adopts. In support of its position that, in the context of prescription drugs, strict liability failure to warn is nothing more than a negligence theory, the majority relies on comment j to § 402A. It fixes its holding on that part of the comment which declares that a seller must warn of risks, not generally known and recognized, “if [the seller] 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.” Majority op. at 561, n. 3 (citing comment j). Yet, in utilizing this portion of comment j, the majority fails to note that this Court has not previously adopted this reasoning.1 To the contrary, this Court has steadfastly refused to adopt any theories which would import negligence concepts into a strict liability cause of action. See, e.g., Kimco Development Corporation v. Michael D’s Carpet, 536 Pa. 1, 8, 637 A.2d 603, 606 (1993) (in analyzing a strict liability failure to warn claim, this *565Court noted that it has been “adamant that negligence concepts have no place in a strict liability action.”) Simply stated, the law in Pennsylvania has always been that negligence theory has no place and deserves no consideration in resolving issues of strict liability.

Apparently, the majority has concluded that, at least with regard to matters involving drugs, negligence principles are now necessary and warranted. Not only do I vigorously disagree that this divergence from our established case law is necessary, but I believe that this approach is clearly unwarranted and extremely dangerous in its potential to undermine clear precedent which, based in well-ordered public policy, sets clear lines of responsibility for harm caused by manufactured products. It is my considered belief that the negligence concepts of comment j have no more place where the defective product is a prescription drug than they do where the defective product is a lawn mower, an automobile, or any other product manufactured and sold within our society.

What I find to be the most disturbing aspect of the majority’s opinion is its neglect to reveal its analysis of the policy concerns attendant to this important issue. We have repeatedly stated that in determining whether strict liability should apply in a given situation, the relevant policy concerns must be addressed. See, e.g., Coyle v. Richardscm-Merrell, Inc., 526 Pa. 208, 212, 584 A.2d 1383, 1385 (1991). The majority has utterly and inexplicably failed to do this. The majority does not analyze the competing concerns of shielding the pharmaceutical industry and compensating injured patients and does not balance these concerns against one another; rather, it favors one side of the equation absolutely while the other is unaccountably made to bear the cost. The majority’s failure to provide an analysis of these concerns is incomprehensible.

I can only speculate that in finding for the pharmaceutical company, the majority concluded that protecting the pharmaceutical company’s interests would diminish the cost to society. I believe that the majority cannot take comfort in the belief that it has safeguarded our society from a pernicious expense *566for such a supposition is not logical. Erasing the cause of action in strict liability for failure to warn does not erase the cost associated with these actions. The damages defective drugs have caused, and will cause in the future, are not magically eradicated by the majority’s refusal to allow the drug companies to be strictly liable for their failure to warn. Rather, the majority has thrust the expense of defective prescription drugs onto those whom these products were supposed to aid. In essence, the majority’s holding has created a class of unpaid guinea pigs. I find this to be unconscionable.

For the foregoing reasons, I respectfully dissent.

CASTILLE, J., joins this dissenting opinion.

. To my knowledge, comment j has been cited by this Court only three times. On one occasion, comment j was cited for the proposition that a warning is not required "when the danger, or potentiality of danger, is generally known and recognized.” Sherk v. Daisy-Heddon, Inc., 498 Pa. 594, 597, n. 2, 450 A.2d 615, 617, n. 2 (1982). On the other two occasions, the following portion of comment j was cited:

Where warning is given the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for its use if followed, is not in defective condition nor is it unreasonably dangerous.

Baldino v. Castagna, 505 Pa. at 247, 478 A.2d at 811; Incollingo, 444 Pa. at 287, 282 A.2d at 219. On none of these occasions did the Court adopt that portion of comment j which requires a warning to be given only when the seller knew or had reason to know of the presence of a danger.