Coyle v. Richardson-Merrell Inc.

44 Pa. D. & C.3d 82, 1987 Pa. Dist. & Cnty. Dec. LEXIS 292
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedApril 10, 1987
Docketno 1101
StatusPublished

This text of 44 Pa. D. & C.3d 82 (Coyle v. Richardson-Merrell Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coyle v. Richardson-Merrell Inc., 44 Pa. D. & C.3d 82, 1987 Pa. Dist. & Cnty. Dec. LEXIS 292 (Pa. Super. Ct. 1987).

Opinion

GOODHEART, J.,

On September 26, 1986, this court granted summary judgment in favor of David Rubin and Seymour Margolis, individually and trading as Bonnet Lane Pharmacy, holding that pharmacists are not strictly liable un[83]*83der section 402A of the Restatement (Second) of Torts for damages resulting from prescription drugs. Plaintiffs appeal arguing that pharmacists should be treated as other retailers of defective products, whether the product is defective in its manufacture or by reason of insufficient warnings. For the reasons below, we disagree. The order granting summary judgment should be affirmed.

The background of this case is as follows. In June 1978 defendant Bonnet Lane filled a prescription for Marie Coyle. Her physician had prescribed Bendectin, a drug manufactured by defendant Richardson-Merrell, to relieve Marie Coyle’s nausea and vomiting resulting from her pregnancy. Subsequently, on January 28, 1979, Ms. Coyle gave birth to William Coyle, who was born with severe malformations of both his arms and his right leg. On or about January 9, 1981, the Coyles filed suit against Richardson-Merrell and Bonnet Lane, claiming that William’s birth defects were caused by his mother’s ingestion of Bendectin during pregnancy. While several theories of liability were advanced against the drug manufacturer, the .only theory asserted against Bonnet Lane was the strict products liability of a seller under section 402A. (see complaint, paragraphs 20, 70).

Rule 1035 of the Pennsylvania Rules of Civil Procedure provides that summary judgment may be granted if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. When deciding a motion for summary judgment, all facts must be viewed in the light most favorable to the non-moving party. Prince v. Pavoni, 225 Pa. Super. 286, 302 A.2d 452 (1973). Accepting as true, then, for the purposes of Bonnet Lane’s motion, that the Bendectin was defective, that Bonnet [84]*84Lane filled Marie Coyle’s prescription for Bendectin, and that the defect was a substantial factor in causing William’s birth defects, the question remains as to whether plaintiffs have stated a claim against Bonnet Lane upon which relief can be granted. We find, as a matter of law, that they have not.

Section 402A of the Restatement (Second) of Torts imposes liability for injuries caused by defective products on, among others, the sellers of such products. However, this imposition of liability is not unlimited. Comment (k) to section 402A acknowledges the existence of certain “unavoidably unsafe products,” such as many prescription drugs, the use of which involves a degree of risk which is justified because of potential benefits therefrom. The comment states:

“The seller of such products, . . . with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk. ” (emphasis added).

Since the defect alleged in the instant case is insufficient warning, the question presented is whether a pharmacist has a duty to convey warnings regarding dangers inherent in a prescription drug to a .customer. If the answer is no, strict liability cannot be imposed.

Although the precise question framed above has not yet been answered definitively by an appellate court in Pennsylvania, looking at the current case law in this state regarding when and what warnings are necessary, it appears that in Pennsylvania a [85]*85pharmacist is under.no duty to warn a customer about inherent risks of a drug which has been prescribed for him or her by a physician. Appellate courts in other states which have been confronted with the same question have arrived at similar conclusions for various reasons which are all persuasive. These shall be discussed in turn.

The leading case in Pennsylvania dealing with the duty to warn of dangers inherent in prescription drugs is Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971). Although not a 402A case, Incollingo set forth' the standard in this state as to what warnings are required with prescription drugs. The court stated that when a drug is “available only upon prescription of a duly licensed physician, the warning required is not to the general public or to the patient, but to the prescribing doctor.” Incollingo at 220. Cf. Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984). The rationale for this is that when a drug is available only by prescription, it is for the physician to decide whether or not a drug is appropriate for a patient, taking into account the potential risks and benefits of the drug as well as the patient’s medical history and condition. Leibowitz v. Ortho Pharmaceutical Corp., 224 Pa. Super. 418, 307 A.2d 449, 457 (1973).

To require pharmacists to warn patients of risks inherent in prescription drugs would not only be to impose upon them a duty greater than that which is imposed upon drug manufacturers; it would require pharmacists to second-guess prescribing physicians who, supposedly, consider a drug’s risks before choosing a course of treatment. As quoted above, comment (k) requires only that a warning be present “where the situation calls for it.” Clearly, in the case of a prescription drug, the warning is called for before a drug is prescribed.

[86]*86Other trial courts sitting in Pennsylvania have come to the same conclusion. In Makripodis v. Merrell Dow et al., No. GD 85-14293 (Allegheny County filed Jan. 16, 1986), the court held that a pharmacy cannot be held liable on the basis of inadequacies in the drug manufacturer’s warnings, nor on the basis of a failure to issue independent warnings. Relying on Incollingo and Leibowitz, the court reasoned that since prescription drugs are dispensed only when prescribed by a physician who has knowledge of both the propensities of the drug and the individual patient’s medical background, the pharmacist is responsible only for passing on to the consumer the warnings- or directions he receives from the prescribing physician. Makripodis, slip op. at 3. The failure of a pharmacist to pass on such warnings or directions- would be a base for liability on a negligence theory, but not under 402A. Since, as in the case at hand, there was no claim of negligence in Makripodis, defendant pharmacy’s preliminary objections were sustained, and the complaint as to the pharmacy was dismissed.

In Ramirez v. Richardson-Merrell Inc., 628 F.Supp. 85 (E.D. Pa. 1986), a federal district court, sitting in diversity and applying Pennsylvania law, agreed. While acknowledging that the Pennsylvania courts have not yet definitively decided the issue of a pharmacist’s liability under 402A, Judge Huyett, pointing to the duty to warn imposed on drug manufacturers in Incollingo, found that “it would be illogical and unreasonable ...

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Related

Murphy v. E. R. Squibb & Sons, Inc.
710 P.2d 247 (California Supreme Court, 1985)
McLeod v. WS Merrell Co., Div. of Richardson-Merrell
174 So. 2d 736 (Supreme Court of Florida, 1965)
Raynor v. Richardson-Merrell, Inc.
643 F. Supp. 238 (District of Columbia, 1986)
Incollingo v. EWING
282 A.2d 206 (Supreme Court of Pennsylvania, 1971)
Baldino v. Castagna
478 A.2d 807 (Supreme Court of Pennsylvania, 1984)
Prince v. Pavoni
302 A.2d 452 (Superior Court of Pennsylvania, 1973)
Ramirez v. Richardson-Merrell, Inc.
628 F. Supp. 85 (E.D. Pennsylvania, 1986)
Incollingo v. Ewing
282 A.2d 206 (Supreme Court of Pennsylvania, 1971)
Leibowitz v. Ortho Pharmaceutical Corp.
307 A.2d 449 (Superior Court of Pennsylvania, 1973)

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44 Pa. D. & C.3d 82, 1987 Pa. Dist. & Cnty. Dec. LEXIS 292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coyle-v-richardson-merrell-inc-pactcomplphilad-1987.