1st Call Home Health LLC and Cardinal Health Systems, Inc. v. Pamela Porter and Abbott Laboratories, Inc.

• Court: Indiana Court of Appeals
• Decided: March 2, 2012
• Docket: 18A05-1110-PL-528
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:

EDWARD L. MURPHY, JR. CHARLES R. CLARK SOPHIA B. TIPPMANN Muncie, Indiana Murphy Ice & Koeneman LLP Fort Wayne, Indiana DONALD K. MCCLELLAN McClellan & McClellan Muncie, Indiana FILED Mar 02 2012, 9:10 am

IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court

1st CALL HOME HEALTH, LLC, and ) CARDINAL HEALTH SYSTEM, INC., ) ) Appellants, ) ) vs. ) No. 18A05-1110-PL-528 ) PAMELA PORTER and ABBOTT ) LABORATORIES, INC., ) ) Appellees. )

APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable John Feick, Judge Cause No. 18C04-0604-PL-10

March 2, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge 1st Call Home Health, LLC, (1st Call) and its parent company, Cardinal Health System,

Inc., (Cardinal Health) bring this interlocutory appeal of the denial of summary judgment in a

suit filed against them by Pamela Porter.1 They present the following restated issue for

review: Did the trial court err in denying summary judgment on the claim of strict liability, a

legal theory which had not been specifically pled against 1st Call and Cardinal Health?

We affirm.

Porter suffers from scleroderma, a medical condition that requires her to administer an

antibiotic intravenously. When administering the medication on April 30, 2004, Porter

claims she suffered damages because the IV bag was contaminated with bacteria. The IV

bags Porter used were manufactured by Abbott Laboratories, Inc. Distributor Cardinal

Health is the parent corporation of 1st Call, the entity that filled the IV bags with the

antibiotic prior to them being sold to Porter.

In April 2005, Porter filed her four-count complaint against 1st Call, Cardinal Health,

and Abbott Laboratories. The first three counts – res ipsa loquitor, strict liability, and

negligence – were directed against Abbott Laboratories. The final count, alleging breach of

implied warranty, was directed against 1st Call and Cardinal Health.

Six years later, all the defendants filed for summary judgment on April 4, 2011.

Following a hearing on August 12, 2011, the trial court entered summary judgment in favor

of Abbott Laboratories on all counts. With respect to 1st Call, the trial court denied summary

1 The trial court certified the matter for interlocutory appeal, and we accepted jurisdiction pursuant to Ind. Appellate Rule 14(B) on November 18, 2011.

2 judgment, finding genuine issues of material fact existed. The court, however, indicated that

summary judgment should be granted in favor of 1st Call as to Counts 1, 3, and 4.

Porter subsequently sought clarification/modification of the summary judgment

order.2 On September 29, 2011, the trial court granted Porter’s motion and entered a nunc pro

tunc entry. The trial court struck the first paragraph of its summary judgment order in which

it had granted summary judgment on Counts 1, 3, and 4. The court then replaced paragraph

one with the following: “That Counts 1, 3 and 4 of Plaintiff’s Complaint for Damages are

hereby dismissed for failure to state a claim and are deemed merged into Count 2 of

Plaintiff’s Complaint”. Appellants’ Appendix at 258-59. The trial court reaffirmed its

summary judgment order in all other respects.

1st Call and Cardinal Health (referred to collectively as Appellants) appeal the denial

of summary judgment.3 Appellants’ only argument on appeal is that Porter never alleged any

fault related to strict liability against them, as Count 2 was directed solely against Abbott.

2 In her motion, Porter explained in part: 5. The Plaintiff conceded at the hearing that the Defendant did not have common law causes of action because these claims are superceded by and merged with her claim under the [Indiana Products Liability Act (IPLA)]. The Plaintiff further agreed that her claim is a Products Liability Action squarely governed by the IPLA. 6. That the Defendant, [1st Call] has now filed a Motion for Certification for Interlocutory Appeal of the Court’s August 12, 2011 Order alleging that Count 2 does not allege any fault as to 1st Call. 7. Rather than the Court granting summary judgment as to Counts 1, 3 and 4 of Plaintiff’s Complaint for Damages, the appropriate remedy is dismissal of these Counts for failure to state a claim. The [IPLA] preempts common law and governs all product liability actions, whether the theory is liability of negligence, strict liability or breach of implied warranty or tort…. Appellants’ Appendix at 260-61. 3 Porter correctly observes that the trial court did not mention Cardinal Health in its ruling on summary judgment. It is obvious, however, that the order was intended to apply to Cardinal Health also, as its liability is wholly derivative of 1st Call’s liability. This oversight by the trial court is of no consequence.

3 Thus, we are presented with a pure question of law and are not called upon to review the trial

court’s determination that genuine issues of material fact exist.

In effect, the appealed judgment converted Porter’s breach of implied warranty claim

against Appellants into one for strict liability under the IPLA. Appellants’ argument that

summary judgment should have been granted in their favor simply because this specific

claim was not originally directed against them is unavailing.

We remind Appellants that Indiana’s notice pleading provision, Ind. Trial Rule 8(A),

requires only a short plain statement of the claim showing that the pleader is entitled to relief.

See City of Clinton v. Goldner, 885 N.E.2d 67 (Ind. Ct. App. 2008). Under our system, a

pleading need not specify a legal theory of recovery to be adhered to throughout the case. Id.

Rather, “[n]otice pleading merely requires pleading the operative facts so as to place the

defendant on notice as to the evidence to be presented at trial.” Id. at 75. “Therefore, under

notice pleading the issue of whether a complaint sufficiently pleads a certain claim turns on

whether the opposing party has been sufficiently notified concerning the claim so as to be

able to prepare to meet it.” Id.

Appellants do not claim that the operative facts pled in Porter’s complaint failed to put

them on notice of a strict liability claim. Moreover, we have held that “the theory of breach

of implied warranty in tort is identical to the theory of strict liability in tort … as codified in

the Product Liability Act”. Thiele v. Faygo Beverage, Inc., 489 N.E.2d 562, 584 (Ind. Ct.

4 App. 1986), trans. denied.4 See also TLB Plastics Corp., Inc. v. Procter & Gamble Paper

Products Co., 542 N.E.2d 1373, 1375-76 (Ind. Ct. App. 1989) (“[t]ortious breach of implied

warranty forms the theoretical basis for the strict liability rule adopted in Indiana, but it does

not constitute a separate cause of action”).

The IPLA governs “all actions that are: (1) brought by a user or consumer; (2) against

a manufacturer or seller; and (3) for physical harm caused by the product; regardless of the

substantive legal theory or theories upon which the action is brought.” Ind. Code Ann. § 34-

20-1-1 (West, Westlaw through 2011 1st Regular Sess.). Procedurally, therefore, regardless

of the common-law claims pled, a products liability plaintiff may proceed only on a single

count of strict liability under the IPLA. See, e.g., Thiele v. Faygo Beverage, Inc., 489 N.E.2d

562 (upholding grant of summary judgment on breach of implied warranty in tort claim

because that count duplicated and merged with strict liability in tort claim).

The IPLA effectively supplants the common-law breach of implied warranty in tort

claim filed by Porter against Appellants. Accordingly, the trial court properly concluded that

Porter’s only remaining claim against 1st Call was one for strict liability.

Judgment affirmed.

RILEY, J., and MATHIAS, J., concur.

4 In fact, we stated in Thiele: “We can conceive of no set of facts under which it would be possible for an injured plaintiff to recover for personal injury on the theory of implied warranty in tort but not on the theory of strict liability in tort.” Id.