(specially concurring).
I specially concur.
I agree with Judge Lopez that the summary judgment granted in this case should be reversed, but I do not agree with his identification of the issues to be dealt with on remand.
In my view, Oppenheimer v. Sterling Drug, Inc., 7 Ohio App.2d 103, 219 N.E.2d 54 (1964), and Douglas v. Bussabarger, 73 Wash.2d 476, 438 P.2d 829 (1968), are correct; there can be no question of negligence on the part of a drug company for failure to warn of dangerous side effects where the company has supplied the plaintiff’s physician with adequate warning but the physician has failed to consult the available literature. In such a case, the physician is an independent intervening cause as a matter of law, and the behavior of the drug company cannot be the proximate cause of any injury suffered by the patient.
However, it appears that there is a substantial question as to whether the warning which was published by Upjohn in the Physician’s Desk Reference was sufficient to apprise the doctors of the danger of using the drug in the way they did. If the warning in the PDR was inadequate, the doctors’ failure to consult the PDR could not have been an intervening cause of the injury.
Thus, I would limit the basis on which the issue of independent intervening cause is presented to the jury; they should be instructed that they must find Upjohn not liable if they determine that the warning placed by Upjohn in the PDR was adequate. If the warning is found to have been inadequate, the jury must further determine that the administration of neomycin sulfate was the actual cause of plaintiff’s injury before Upjohn may be held liable.