Grundberg v. Upjohn Co.

813 P.2d 89, 160 Utah Adv. Rep. 20, 1991 Utah LEXIS 44, 1991 WL 80704
CourtUtah Supreme Court
DecidedMay 14, 1991
Docket900573
StatusPublished
Cited by57 cases

This text of 813 P.2d 89 (Grundberg v. Upjohn Co.) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grundberg v. Upjohn Co., 813 P.2d 89, 160 Utah Adv. Rep. 20, 1991 Utah LEXIS 44, 1991 WL 80704 (Utah 1991).

Opinions

DURHAM, Justice:

This case comes to us pursuant to rule 41 of the Utah Rules of Appellate Procedure as a question certified from the United States District Court for the District of Utah. The issue before us is whether Utah adopts the “unavoidably unsafe products” exception to strict products liability as set forth in comment k to section 402A of the Restatement (Second) of Torts (1965) (“comment k”). This question presents an unanswered issue of law for original disposition by this court.

We hold that a drug approved by the United States Food and Drug Administration (“FDA”), properly prepared, compounded, packaged, and distributed, cannot as a matter of law be “defective” in the absence of proof of inaccurate, incomplete, misleading, or fraudulent information furnished by the manufacturer in connection with FDA approval. We acknowledge that by characterizing all FDA-approved prescription medications as “unavoidably unsafe,” we are expanding the literal interpretation of comment k.

The following facts are taken from the federal district court’s certification order. Mildred Lucille Coats died at age 83 from gunshot wounds inflicted by her daughter, Ilo Grundberg, on June 19, 1988. Grund-berg and Janice Gray, the personal representative of Coat’s estate, brought this action, alleging that Grundberg shot her mother as a result of ingesting the drug Halcion, a prescription drug manufactured by defendant Upjohn to treat insomnia.1

Plaintiffs allege that Grundberg took a .5 milligram dose of Halcion the day she shot her mother. They allege that this dose was recommended by her physician and was consistent with Upjohn’s recommended dosage. Plaintiffs assert that Grundberg shot her mother while in a state of Halcion-induced intoxication, which allegedly included side effects such as depression, psychosis, depersonalization, aggressive as-saultive behavior, and homicidal compulsion.

Plaintiffs’ complaint states several causes of action, including common law negligence and strict liability. Plaintiffs claim that Upjohn failed to adequately warn about certain adverse side effects of Halcion and that Halcion was defectively designed. The failure-to-warn claim is scheduled for trial. The strict liability claim based on design defect is the subject of Upjohn’s pending summary judgment motion, the outcome of which depends on this court’s resolution of the certified question.

The parties agree that the Restatement (Second) of Torts section 402A, comment k (1965) and the principles it embodies provide an exemption from strict liability for a claimed design defect in the case of products that are “unavoidably unsafe.” In moving for partial summary judgment, Upjohn argued that public policy supporting the research and development of new drugs requires a holding that all FDA-approved prescription medications are “unavoidably unsafe products” under comment k and, as such, manufacturers of those drugs would not be liable for a claim based on defective design. Plaintiffs argue that whether a drug is “unavoidably unsafe” must be determined on a ease-by-case basis, with a determination in each case of whether the specific drug’s benefit exceeded its risk at the time it was distributed. The district court found this to be a controlling question of law and certified it to this court.

Specifically, the issues we address at the request of the federal court are:

1. Does Utah adopt the “unavoidably unsafe products” exception to strict products liability as set forth in comment k to [91]*91section 402A of the Restatement (Second) of Torts (1965)?

(a) If Utah does adopt comment k, should PDA-approved prescription drugs be deemed as a matter of law to have satisfied the “unavoidably unsafe” prerequisite to the comment k exception, or should that determination be made on a case-by-case basis?
(b) If Utah does adopt comment k, and if it is further determined that its application to FDA-approved prescription drugs ought to be made on a case-by-case basis, is such determination a threshold question for the trial court or a question properly to be presented to the jury?
(c) If it is determined that comment k is to be applied to FDA-approved prescription drugs on a case-by-case basis, is evidence pertaining to adverse side-effects from the drug which are not alleged to have been personally suffered by the plaintiff relevant to the “unavoidably unsafe” determination?

I. UTAH LAW ON STRICT LIABILITY

Section 402A of the Restatement (Second) of Torts (1965) addresses the strict liability of sellers of products. This court adopted section 402A, of which comment k is one provision, in Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152, 158 (Utah 1979). Since then, we have adhered to section 402A and to at least one of its accompanying comments. See Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301 (Utah 1981) (applying section 402A); Dowland v. Lyman Products for Shooters, 642 P.2d 880, 381 n. 2 (Utah 1982) (applying comment g). We have not addressed the application of comment k in the context of prescription drugs or otherwise.2 Although two Utah statutes address the liability of product and drug manufacturers, they do not directly address the comment k issues. See Utah Code Ann. § 78-15-6(3) (1987) (rebuttable presumption that product was not defective if manufactured according to industry standards), § 78-18-2 (punitive damages unavailable if drug was approved by FDA).

In its entirety, comment k reads:

k. Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again 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.

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Bluebook (online)
813 P.2d 89, 160 Utah Adv. Rep. 20, 1991 Utah LEXIS 44, 1991 WL 80704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grundberg-v-upjohn-co-utah-1991.