Abrams, J.
This products liability action raises the question of the extent of a drug manufacturer’s duty to warn consumers of dangers inherent in the use of oral contraceptives. The plaintiffs brought suit against the defendant, Ortho Pharmaceutical Corporation (Ortho), for injuries allegedly caused by Ortho’s birth control pills, and obtained a jury verdict in their favor. The defendant moved for a judgment notwithstanding the verdict. The judge concluded that the defendant did not owe a duty to warn the plaintiffs, and entered judgment for Ortho. The plaintiffs appealed. We transferred the case to this court on our own motion and reinstate the jury verdict.2
We summarize the facts. In September, 1973, the plaintiff Carole D. MacDonald (MacDonald), who was twenty-six years old at the time, obtained from her gynecologist a prescription for Ortho-Novum contraceptive pills, manufactured by Ortho. As required by the then effective regulations promulgated by the United States Food and Drug Administration (FDA), the pill dispenser she received was labeled with a warning that “oral contraceptives are powerful and effective drugs which can cause side effects in some users and should not be used at all by some women,” and that “[t]he most serious known side effect is abnormal blood clotting which can be fatal.”3 The [133]*133warning also referred MacDonald to a booklet which she obtained from her gynecologist, and which was distributed by Ortho pursuant to FDA requirements. The booklet contained detailed information about the contraceptive pill, including the increased risk to pill users that vital organs such as the brain may be damaged by abnormal blood clotting.* **4 The word [134]*134“stroke” did not appear on the dispenser warning or in the booklet.
MacDonald’s prescription for Ortho-Novum pills was renewed at subsequent annual visits to her gynecologist. The prescription was filled annually. On July 24, 1976, after approximately three years of using the pills, MacDonald suffered an occlusion of a cerebral artery by a blood clot, an injury commonly referred to as a stroke.5 The injury caused the death of approximately twenty per cent of MacDonald’s brain tissue, and left her permanently disabled. She and her husband initiated an action in the Superior Court against Ortho, seeking recovery for her personal injuries and his consequential damages and loss of consortium.
MacDonald testified that, during the time she used the pills, she was unaware that the risk of abnormal blood clotting encompassed the risk of stroke, and that she would not have used the pills had she been warned that stroke is an associated risk.6 The case was submitted to a jury on the plaintiffs’ theories that Ortho was negligent in failing to warn adequately of the dangers associated with the pills and that Ortho breached its warranty of merchantability. These two theories were treated, in effect, as a single claim of failure to warn. The jury returned a special verdict, finding no negligence or breach of warranty in the manufacture of the pills. The jury also found that Ortho adequately advised the gynecologist of the risks inherent in the pills;7 the jury found, however, that Ortho was negligent and [135]*135in breach of warranty because it failed to give MacDonald sufficient warning of such dangers. The jury further found that MacDonald’s injury was caused by Ortho’s pills, that the inadequacy of the warnings to MacDonald was the proximate cause of her injury, and that Ortho was liable to MacDonald and her husband.* *****8
After the jury verdict, the judge granted Ortho’s motion for judgment notwithstanding the verdict, concluding that, because oral contraceptives are prescription drugs, a manufacturer’s duty to warn the consumer is satisfied if the manufacturer gives adequate warnings to the prescribing physician, and that the manufacturer has no duty to warn the consumer directly.
The narrow issue, on appeal, is whether, as the plaintiffs contend, a manufacturer of birth control pills owes a direct duty to the consumer to warn her of the dangers inherent, in the use of the pill. We conclude that such a duty exists under the law of this Commonwealth.
1. Extent of duty to warn. Ordinarily, “a manufacturer of a product, which the manufacturer knows or should know is dangerous by nature or is in a dangerous condition,” is under a duty to give warning of those dangers to “persons who it is foreseeable will come in contact with, and consequently be endangered by, that product.” H.P. Hood & Sons v. Ford Motor Co., 370 Mass. 69, 75 (1976). The element of privity being long discarded, a manufacturer’s warning to the immediate purchaser will not, as a general matter, discharge this duty. However, “there are limits to that principle.” Carter v. Yardley & Co., 319 Mass. 92, 98 (1946). Thus, “a manufacturer may be absolved from blame because of a justified reliance upon ... a middleman.” Id. at 99. This exception is applicable [136]*136only in the limited instances in which the manufacturer’s reliance on an intermediary is reasonable. See Restatement (Second) of Torts § 388 comment n (1965). In such narrowly defined circumstances, the manufacturer’s immunity from liability if the consumer does not receive the warning is explicable on the grounds that the intermediary’s failure to warn is a superseding cause of the consumer’s injury, or, alternatively, that, because it is unreasonable in such circumstances to expect the manufacturer to communicate with the consumer, the manufacturer has no duty directly to warn the consumer.9 See generally 1A L. Framer & M. Friedman, Products Liability §§ 8.01, 8.03 [3] (1983 & Supp. 1984); Restatement (Second) of Torts, supra at § 452 comment f.
The role in jurisdictions that have addressed the question of the extent of a manufacturer’s duty to warn in cases involving prescription drags is that the prescribing physician acts as a “learned intermediary” between the manufacturer and the patient, and “the duty of the ethical drag manufacturer is to warn the doctor, rather than the patient, [although] the manufacturer is directly liable to the patient for a breach of such duty.” McEwen v. Ortho Pharmaceutical Corp., 270 Or. 375, 386-387 (1974). Oral contraceptives, however, bear peculiar characteristics which warrant the imposition of a common law [137]*137duty on the manufacturer to warn users directly of associated risks. Whereas a patient’s involvement in decision making concerning use of a prescription drug necessary to treat a malady is typically minimal or nonexistent, the healthy, young consumer of oral contraceptives is usually actively involved in the decision to use “the pill,” as opposed to other available birth control products, and the prescribing physician is relegated to a relatively passive role.10
Furthermore, the physician prescribing “the pill,” as a matter of course, examines the patient once before prescribing an oral contraceptive and only annually thereafter. J. Willson, E. Carrington, & W. Ledger, Obstetrics and Gynecology 184 (7th ed. 1983). D. Danforth, Obstetrics and Gynecology 267 (4th ed. 1982). T. Green, Gynecology: Essentials of Clinical Practice 593 (3d ed. 1977).
Free access — add to your briefcase to read the full text and ask questions with AI
Abrams, J.
This products liability action raises the question of the extent of a drug manufacturer’s duty to warn consumers of dangers inherent in the use of oral contraceptives. The plaintiffs brought suit against the defendant, Ortho Pharmaceutical Corporation (Ortho), for injuries allegedly caused by Ortho’s birth control pills, and obtained a jury verdict in their favor. The defendant moved for a judgment notwithstanding the verdict. The judge concluded that the defendant did not owe a duty to warn the plaintiffs, and entered judgment for Ortho. The plaintiffs appealed. We transferred the case to this court on our own motion and reinstate the jury verdict.2
We summarize the facts. In September, 1973, the plaintiff Carole D. MacDonald (MacDonald), who was twenty-six years old at the time, obtained from her gynecologist a prescription for Ortho-Novum contraceptive pills, manufactured by Ortho. As required by the then effective regulations promulgated by the United States Food and Drug Administration (FDA), the pill dispenser she received was labeled with a warning that “oral contraceptives are powerful and effective drugs which can cause side effects in some users and should not be used at all by some women,” and that “[t]he most serious known side effect is abnormal blood clotting which can be fatal.”3 The [133]*133warning also referred MacDonald to a booklet which she obtained from her gynecologist, and which was distributed by Ortho pursuant to FDA requirements. The booklet contained detailed information about the contraceptive pill, including the increased risk to pill users that vital organs such as the brain may be damaged by abnormal blood clotting.* **4 The word [134]*134“stroke” did not appear on the dispenser warning or in the booklet.
MacDonald’s prescription for Ortho-Novum pills was renewed at subsequent annual visits to her gynecologist. The prescription was filled annually. On July 24, 1976, after approximately three years of using the pills, MacDonald suffered an occlusion of a cerebral artery by a blood clot, an injury commonly referred to as a stroke.5 The injury caused the death of approximately twenty per cent of MacDonald’s brain tissue, and left her permanently disabled. She and her husband initiated an action in the Superior Court against Ortho, seeking recovery for her personal injuries and his consequential damages and loss of consortium.
MacDonald testified that, during the time she used the pills, she was unaware that the risk of abnormal blood clotting encompassed the risk of stroke, and that she would not have used the pills had she been warned that stroke is an associated risk.6 The case was submitted to a jury on the plaintiffs’ theories that Ortho was negligent in failing to warn adequately of the dangers associated with the pills and that Ortho breached its warranty of merchantability. These two theories were treated, in effect, as a single claim of failure to warn. The jury returned a special verdict, finding no negligence or breach of warranty in the manufacture of the pills. The jury also found that Ortho adequately advised the gynecologist of the risks inherent in the pills;7 the jury found, however, that Ortho was negligent and [135]*135in breach of warranty because it failed to give MacDonald sufficient warning of such dangers. The jury further found that MacDonald’s injury was caused by Ortho’s pills, that the inadequacy of the warnings to MacDonald was the proximate cause of her injury, and that Ortho was liable to MacDonald and her husband.* *****8
After the jury verdict, the judge granted Ortho’s motion for judgment notwithstanding the verdict, concluding that, because oral contraceptives are prescription drugs, a manufacturer’s duty to warn the consumer is satisfied if the manufacturer gives adequate warnings to the prescribing physician, and that the manufacturer has no duty to warn the consumer directly.
The narrow issue, on appeal, is whether, as the plaintiffs contend, a manufacturer of birth control pills owes a direct duty to the consumer to warn her of the dangers inherent, in the use of the pill. We conclude that such a duty exists under the law of this Commonwealth.
1. Extent of duty to warn. Ordinarily, “a manufacturer of a product, which the manufacturer knows or should know is dangerous by nature or is in a dangerous condition,” is under a duty to give warning of those dangers to “persons who it is foreseeable will come in contact with, and consequently be endangered by, that product.” H.P. Hood & Sons v. Ford Motor Co., 370 Mass. 69, 75 (1976). The element of privity being long discarded, a manufacturer’s warning to the immediate purchaser will not, as a general matter, discharge this duty. However, “there are limits to that principle.” Carter v. Yardley & Co., 319 Mass. 92, 98 (1946). Thus, “a manufacturer may be absolved from blame because of a justified reliance upon ... a middleman.” Id. at 99. This exception is applicable [136]*136only in the limited instances in which the manufacturer’s reliance on an intermediary is reasonable. See Restatement (Second) of Torts § 388 comment n (1965). In such narrowly defined circumstances, the manufacturer’s immunity from liability if the consumer does not receive the warning is explicable on the grounds that the intermediary’s failure to warn is a superseding cause of the consumer’s injury, or, alternatively, that, because it is unreasonable in such circumstances to expect the manufacturer to communicate with the consumer, the manufacturer has no duty directly to warn the consumer.9 See generally 1A L. Framer & M. Friedman, Products Liability §§ 8.01, 8.03 [3] (1983 & Supp. 1984); Restatement (Second) of Torts, supra at § 452 comment f.
The role in jurisdictions that have addressed the question of the extent of a manufacturer’s duty to warn in cases involving prescription drags is that the prescribing physician acts as a “learned intermediary” between the manufacturer and the patient, and “the duty of the ethical drag manufacturer is to warn the doctor, rather than the patient, [although] the manufacturer is directly liable to the patient for a breach of such duty.” McEwen v. Ortho Pharmaceutical Corp., 270 Or. 375, 386-387 (1974). Oral contraceptives, however, bear peculiar characteristics which warrant the imposition of a common law [137]*137duty on the manufacturer to warn users directly of associated risks. Whereas a patient’s involvement in decision making concerning use of a prescription drug necessary to treat a malady is typically minimal or nonexistent, the healthy, young consumer of oral contraceptives is usually actively involved in the decision to use “the pill,” as opposed to other available birth control products, and the prescribing physician is relegated to a relatively passive role.10
Furthermore, the physician prescribing “the pill,” as a matter of course, examines the patient once before prescribing an oral contraceptive and only annually thereafter. J. Willson, E. Carrington, & W. Ledger, Obstetrics and Gynecology 184 (7th ed. 1983). D. Danforth, Obstetrics and Gynecology 267 (4th ed. 1982). T. Green, Gynecology: Essentials of Clinical Practice 593 (3d ed. 1977). At her annual checkup, the patient receives a renewal prescription for a full year’s supply of the pill.11 Thus, the patient may only seldom have the opportunity to explore her questions and concerns about the medication with the prescribing physician. Even if the physician, on those occasions, were scrupulously to remind the patient of the risks attendant on continuation of the oral contraceptive, “the patient cannot be expected to remember all of the details for a protracted period of time.” 35 Fed. Reg. 9002 (1970).
Last, the birth control pill is specifically subject to extensive Federal regulation. The FDA has promulgated regulations designed to ensure that the choice of “the pill” as a contraceptive [138]*138method is informed by comprehensible warnings of potential side effects.12 See notes 3 and 4, supra. These regulations, and subsequent amendments, have their basis in the FDA commissioner’s finding, after hearings, that “[bjecause oral contraceptives are ordinarily taken electively by healthy women who have available to them alternative methods of treatment, and because of the relatively high incidence of serious illnesses associated with their use, . . . users of these drugs should, without exception, be furnished with written information telling them of the drug’s benefits and risks.” 43 Fed. Reg. 4215 (1978). The FDA also found that the facts necessary to informed decisions by women as to use of oral contraceptives are “too complex to expect the patient to remember everything told her by the physician,” and that, in the absence of direct written warnings, many potential users of “the pill” do not receive the needed information “in an organized, comprehensive, understandable, and handy-for-future-reference form.” 35 Fed. Reg. 9002 (1970).
The oral contraceptive thus stands apart from other prescription drugs in light of the heightened participation of patients in decisions relating to use of “the pill”; the substantial risks affiliated with the product’s use; the feasibility of direct warnings by the manufacturer to the user; the limited participation of the physician (annual prescriptions); and the possibility that oral communications between physicians and consumers may be insufficient or too scanty standing alone fully to apprise consumers of the product’s dangers at the time the initial selection of a contraceptive method is made as well as at subsequent points when alternative methods may be considered. We conclude that the manufacturer of oral contraceptives is not justified in relying on warnings to the medical profession to satisfy its common law duty to warn, and that the manufacturer’s obligation encompasses a duty to warn the ultimate user. Thus, the [139]*139manufacturer’s duty is to provide to the consumer written warnings conveying reasonable notice of the nature, gravity, and likelihood of known or knowable side effects, and advising the consumer to seek fuller explanation from the prescribing physician or other doctor of any such information of concern to the consumer.13
2. Adequacy of the warning. Because we reject the judge’s conclusion that Ortho had no duty to warn MacDonald, we turn to Ortho’s separate argument, not reached by the judge, that the evidence was insufficient to warrant the jury’s finding that Ortho’s warnings to MacDonald were inadequate. Ortho contends initially that its warnings complied with FDA labeling requirements, and that those requirements preempt or define the bounds of the common law duty to warn. We disagree. The regulatory history of the FDA requirements belies any objective to cloak them with preemptive effect. In response to concerns raised by drug manufacturers that warnings required and drafted by the FDA might be deemed inadequate by juries, the FDA commissioner specifically noted that the boundaries of civil tort liability for failure to warn are controlled by applicable State law. 43 Fed. Reg. 4214 (1978). Although the common law duty we today recognize is to a large degree coextensive with the regulatory duties imposed by the FDA, we are persuaded that, in instances where a trier of fact could reasonably conclude that a manufacturer’s compliance with FDA labeling requirements or guidelines did not adequately apprise oral contraceptive users of inherent risks, the manufacturer should not be shielded from liability by such compliance. See Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 658 (1st Cir. 1981); Skill v. Martinez, 91 F.R.D. 498, 508 (D.N.J. 1981); Stevens v. Parke, Davis & Co., 9 Cal. 3d 51, 65 (1973); McEwen v. Ortho Pharmaceutical Corp., 270 Or. 375, 397-398 (1974). Cf. Hubbard-Hall Chem. Co. v. Silverman, 340 [140]*140F.2d 402, 405 (1st Cir. 1965); Ferebee v. Chevron Chem. Co., 552 F. Supp. 1293, 1304 (D.D.C. 1982). See generally 1A L. Framer & M. Friedman, Products Liability § 8.07[1] (1983). Thus, compliance with FDA requirements, though admissible to demonstrate lack of negligence, is not conclusive on this issue, just as violation of FDA requirements is evidence, but not conclusive evidence, of negligence. See Deignan v. Lubarsky, 318 Mass. 661, 664 (1945). See also Lukaszewicz v. Ortho Pharmaceutical Corp., 510 F. Supp. 961, 965 (E.D. Wis. 1981). We therefore concur with the plaintiffs’ argument that even if the conclusion that Ortho complied with FDA requirements were inescapable, an issue we need not decide, the jury nonetheless could have found that the lack of a reference to “stroke” breached Ortho’s common law duty to warn.
The common law duty to warn, like the analogous FDA “lay language” requirement, necessitates a warning “comprehensible to the average user and . . . conveying] a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person.” Ortho Pharmaceutical Corp. v. Chapman, 180 Ind. App. 33, 49 (1979), quoting Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 85 (4th Cir. 1962). Whether a particular warning measures up to this standard is almost always an issue to be resolved by a jury; few questions are “more appropriately left to a common sense lay judgment than that of whether a written warning gets its message across to an average person.” Ferebee v. Chevron Chem. Co., 552 F. Supp. 1293, 1304 (D.D.C. 1982). See Hayes v. Ariens Co., 391 Mass. 407, 409-410 (1984). A court may, as a matter of law, determine “whether the defendant has conformed to that standard, in any case in which the jury may not reasonably come to a different conclusion,” Restatement (Second) of Torts § 328B (d) and comment g (1965), but judicial intrusion into jury decision making in negligence cases is exceedingly rare. See Croley v. Matson Navigation Co., 434 F.2d 73, 75 (5th Cir. 1970). Further, we must view the evidence in the light most favorable to the plaintiffs. Uloth v. City Tank Corp., 376 Mass. 874, 876 (1978). The test is whether “anywhere in the evidence, from whatever source derived, any combination of [141]*141circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.” Poirier v. Plymouth, 374 Mass. 206, 212 (1978), quoting Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). Accord Michnik-Zilberman v. Gordon’s Liquor, Inc., 390 Mass. 6, 7 n.1 (1983).
Ortho argues that reasonable minds could not differ as to whether MacDonald was adequately informed of the risk of the injury she sustained by Ortho’s warning that the oral contraceptives could cause “abnormal blood clotting which can be fatal” and further warning of the incremental likelihood of hospitalization or death due to blood clotting in “vital organs, such as the brain.” We disagree. “The fact finder may find a warning to be unreasonable, hence inadequate, in its factual content, its expression of the facts, or the method or form in which it is conveyed. . . . The adequacy of such warnings is measured not only by what is stated, but also by the manner in which it is stated. A reasonable warning not only conveys a fair indication of the nature of the dangers involved, but also warns with the degree of intensity demanded by the nature of the risk. A warning may be found to be unreasonable in that it was unduly delayed, reluctant in tone or lacking in a sense of urgency.” Seley v. G.D. Searle Co., 67 Ohio St. 2d 192, 198 (1981). We cannot say that this jury’s decision that the warning was inadequate is so unreasonable as to require the opposite conclusion as a matter of law.14 The jury may well have concluded, in light of their common experience and MacDonald’s testimony, that the absence of a reference to “stroke” in the warning unduly minimized the warning’s impact or failed to make the nature of the risk reasonably comprehensible to the average consumer. Similarly, the jury may have concluded that there are fates worse than death, such as the permanent disablement suffered by MacDonald, and that the mention of the risk of death did not, therefore, suffice to apprise an average consumer of the material risks of oral contraceptive use. Cf. Hubbard-Hall Chem. Co. v. Silverman, 340 F.2d 402, 405 (1st Cir. 1965).
[142]*142Ortho’s argument that, as a matter of law, there was insufficient evidence that MacDonald’s injury was proximately caused by a deficiency in the warnings is substantially similar to its argument on the issue of the adequacy of the warnings, and is likewise unavailing. Relying on Harnish v. Children’s Hosp. Medical Center, 387 Mass. 152 (1982), for the proposition that MacDonald had the burden of proving causation by showing that “had the proper information been provided neither [s]he nor a reasonable person in similar circumstances” would have accepted Ortho’s pills as a contraceptive method, id. at 158, Ortho argues that “[tjhere was no evidence that a reasonable person, having been informed of the risk of death by abnormal blood clotting and having chosen to assume the risk, would have acted differently if informed of the risk of‘stroke. ’ ” The jury were free, however, to credit MacDonald’s testimony that she would not have used the pills had she been advised of the danger of “stroke,” and to infer that an explicit reference to the risk of stroke might tip the balance in a reasonable person’s choice of a contraceptive method. Ortho also asserts that evidence that MacDonald did not ask her gynecologist for an explanation of the meaning of “abnormal blood clotting” or inform him of two episodes of numbness in her hand subsequent to her initiation of oral contraceptive use indicates that MacDonald was not disposed to heed Ortho’s warnings, and, consequently, that the evidence did not permit an inference that a different warning by Ortho would have affected MacDonald’s decision to use Ortho’s pills. These arguments raise the issue of the plaintiff Carole MacDonald’s comparative negligence. That issue was not raised below and thus is not before us. Kagan v. Levenson, 334 Mass. 100, 106 (1956).
We reverse the judgment, which the judge ordered notwithstanding the verdict, and remand the case to the Superior Court for the entry of judgment for the plaintiffs.
So ordered.