OPINION
SUTIN, Judge.
This is an interlocutory appeal granted defendant McKesson-Robbins, ForemostMcKesson, Skaggs Drug Centers, and third party defendant, U.S. Nuclear, Inc. These parties will be designated as defendants. The trial court denied defendants’ motion for summary judgment and defendants appeal. We affirm.
A. Facts.
Plaintiff suffered with sinus congestion symptoms since about 1952. Over the years, he took a variety of medicines as initially prescribed by physicians. Around 1965, his physician prescribed “Sinutab” in writing to be ingested four a day on a daily basis. Plaintiff purchased' this over-the-counter drug at Skaggs. He read the dosage requirements, the precautions and the printed literature on the label. He saw his doctor intermittently until 1970.
In 1970, plaintiff went to Skaggs to make another purchase of “Sinutabs” and was informed by the cashier that Skaggs had their own house brand called “Sinus Congestion Tablets.” Plaintiff compared the ingredients on the label with those of “Sinutab” and determined that they were identical and purchased the bottle of “Sinus Congestion Tablets.” On the front of the label is the name of Skaggs, Sinus Congestion Tablets, and the ingredients. One of the ingredients is phenacetin, a dangerous drug. The left side of the label is titled “SOLD WITH MONEY BACK GUARANTEE” and contains the “DOSAGE.” On the right side, are “CAUTION” and “WARNING,” the contents of which appear in small letters. A copy of the label is attached as Appendix “A”.
The “WARNING” reads:
This medication may damage the kidneys when used in large amounts or for a long period of time. Do not take more than the recommended dosage, nor take regularly for longer than 10 days without consulting your physician. KEEP THIS AND ALL MEDICATIONS OUT OF THE REACH OF ‘ CHILDREN. IN CASE OF ACCIDENTAL OVERDOSE, CONTACT A PHYSICIAN IMMEDIATELY. [Emphasis added.]
Plaintiff read the label. He did not recall reading either side of the label while he was taking the drug. He thought that if he had noted that kind of warning he would have consulted a doctor. He saw his personal physician intermittently with reference to his sinus and allergy problems and thought his doctor knew of his dosage of Sinus Congestion Tablets. He did not rely on the warning. He did not think an over-the-counter drug was harmful.
Plaintiff continued ingestion of this over-the-counter drug, four a day, on a regular daily basis, until April, 1973, when his kidney failure was first diagnosed. Plaintiff’s physician ordered him to stop all medication.
B. Only claim on appeal is ordinary negligence.
Plaintiff filed a second amended complaint in which he sought damages from these defendants and others arising out of the manufacture and sale of “Sinutabs” and “Sinus Congestion Tablets.” The complaint was fashioned in the alternative, strict liability and ordinary negligence.
On the issue of strict liability, plaintiff claimed that he ingested various quantities of these tablets that were in a defective condition and unreasonably dangerous when ingested; that this defective condition was a proximate cause of damage to his kidneys.
In the alternative, plaintiff claimed defendants were jointly and severally negligent in the manufacture and sale of the products and breached their duty to plaintiff.
Defendant filed a motion for summary judgment. A hearing was held. No record of the hearing was made. We are without assistance of oral arguments made below, the briefs filed with the court, or any comments made by the hearing judge.
Plaintiff says that defendants’ contention on this appeal ignores plaintiff’s claims. One claim is failure to adequately warn plaintiff, as an ordinary consumer of this over-the-counter drug product, of the danger that long term ingestion of the drug, (as compounded to include phenacetin), will cause permanent, severe, life shortening kidney disease. The other claim is that defendants are liable to plaintiff under both negligence and strict liability irrespective of any warnings provided.
The trial court found “that it cannot conclude as a matter of law that the warnings furnished by defendants on ‘Sinus Congestion Tablets’ did constitute as a
matter of law adequate warnings as to the use of Sinus Congestion Tablets to preclude liability of these defendants and that therefore the motion should be denied.” [Emphasis added.]
With respect to plaintiff’s claim on strict liability, the finding of the trial court on lack of adequate warning is not applicable. This means that defendants’ motion for summary judgment was denied on plaintiff’s claim of negligence, and not on the claim of strict liability, and this latter claim is not an issue on this appeal.
We feel obliged to accept plaintiff’s contention. In a complex, complicated case in which summary judgment is granted or denied, the burden is on the losing party to delineate the proceedings in the court below, preserve a record of the hearing, the comments of the court and seek a clear ruling on the issues involved and determined. Otherwise, on appeal, we shall use any reasonable basis disclosed by the record to uphold the order of the trial court.
C. A genuine issue of material fact exists on adequacy of warning.
This matter is before us on denial of defendants’ motion for summary judgment. The finding of the trial court is limited in scope and poorly worded. We read it to mean:
In the negligence claim, the warning given did not, as a matter of law, contain sufficient information “as to the use of Sinus Congestion Tablets” to preclude liability of defendants; that a genuine issue of material fact exists as to the adequacy of the warning.
Defendants added a new section to the Brief-in-Chief entitled “Statement of Facts.” Here defendants argue that plaintiff didn’t bother to read the full label on Sinutabs; that if there was a warning, he did not rely on it; that when suit was filed, plaintiff was under the impression there was no warning on the label of “Sinus Congestion Tablets”; that if he had read the warning he would have quit using the tablets or asked the doctor about it. These are matters that relate to the conduct of plaintiff and bear upon his contributory negligence. They may test the credibility of plaintiff. These facts, however, do not relate to the issue of the adequacy of the warning given.
Defendants argue that the serious abuse of the product “is so extreme as to be almost beyond belief.” Upon what basis this exaggeration is stated, we do not know. Defendants do not point to any evidence that plaintiff ingested more than the recommended dosage. Perhaps defendants mean that plaintiff took these tablets regularly for more than 10 days without consulting a physician. This fact, if true, does not bear upon the adequacy of the warning. It may constitute a factor relative to contributory negligence of the plaintiff.
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OPINION
SUTIN, Judge.
This is an interlocutory appeal granted defendant McKesson-Robbins, ForemostMcKesson, Skaggs Drug Centers, and third party defendant, U.S. Nuclear, Inc. These parties will be designated as defendants. The trial court denied defendants’ motion for summary judgment and defendants appeal. We affirm.
A. Facts.
Plaintiff suffered with sinus congestion symptoms since about 1952. Over the years, he took a variety of medicines as initially prescribed by physicians. Around 1965, his physician prescribed “Sinutab” in writing to be ingested four a day on a daily basis. Plaintiff purchased' this over-the-counter drug at Skaggs. He read the dosage requirements, the precautions and the printed literature on the label. He saw his doctor intermittently until 1970.
In 1970, plaintiff went to Skaggs to make another purchase of “Sinutabs” and was informed by the cashier that Skaggs had their own house brand called “Sinus Congestion Tablets.” Plaintiff compared the ingredients on the label with those of “Sinutab” and determined that they were identical and purchased the bottle of “Sinus Congestion Tablets.” On the front of the label is the name of Skaggs, Sinus Congestion Tablets, and the ingredients. One of the ingredients is phenacetin, a dangerous drug. The left side of the label is titled “SOLD WITH MONEY BACK GUARANTEE” and contains the “DOSAGE.” On the right side, are “CAUTION” and “WARNING,” the contents of which appear in small letters. A copy of the label is attached as Appendix “A”.
The “WARNING” reads:
This medication may damage the kidneys when used in large amounts or for a long period of time. Do not take more than the recommended dosage, nor take regularly for longer than 10 days without consulting your physician. KEEP THIS AND ALL MEDICATIONS OUT OF THE REACH OF ‘ CHILDREN. IN CASE OF ACCIDENTAL OVERDOSE, CONTACT A PHYSICIAN IMMEDIATELY. [Emphasis added.]
Plaintiff read the label. He did not recall reading either side of the label while he was taking the drug. He thought that if he had noted that kind of warning he would have consulted a doctor. He saw his personal physician intermittently with reference to his sinus and allergy problems and thought his doctor knew of his dosage of Sinus Congestion Tablets. He did not rely on the warning. He did not think an over-the-counter drug was harmful.
Plaintiff continued ingestion of this over-the-counter drug, four a day, on a regular daily basis, until April, 1973, when his kidney failure was first diagnosed. Plaintiff’s physician ordered him to stop all medication.
B. Only claim on appeal is ordinary negligence.
Plaintiff filed a second amended complaint in which he sought damages from these defendants and others arising out of the manufacture and sale of “Sinutabs” and “Sinus Congestion Tablets.” The complaint was fashioned in the alternative, strict liability and ordinary negligence.
On the issue of strict liability, plaintiff claimed that he ingested various quantities of these tablets that were in a defective condition and unreasonably dangerous when ingested; that this defective condition was a proximate cause of damage to his kidneys.
In the alternative, plaintiff claimed defendants were jointly and severally negligent in the manufacture and sale of the products and breached their duty to plaintiff.
Defendant filed a motion for summary judgment. A hearing was held. No record of the hearing was made. We are without assistance of oral arguments made below, the briefs filed with the court, or any comments made by the hearing judge.
Plaintiff says that defendants’ contention on this appeal ignores plaintiff’s claims. One claim is failure to adequately warn plaintiff, as an ordinary consumer of this over-the-counter drug product, of the danger that long term ingestion of the drug, (as compounded to include phenacetin), will cause permanent, severe, life shortening kidney disease. The other claim is that defendants are liable to plaintiff under both negligence and strict liability irrespective of any warnings provided.
The trial court found “that it cannot conclude as a matter of law that the warnings furnished by defendants on ‘Sinus Congestion Tablets’ did constitute as a
matter of law adequate warnings as to the use of Sinus Congestion Tablets to preclude liability of these defendants and that therefore the motion should be denied.” [Emphasis added.]
With respect to plaintiff’s claim on strict liability, the finding of the trial court on lack of adequate warning is not applicable. This means that defendants’ motion for summary judgment was denied on plaintiff’s claim of negligence, and not on the claim of strict liability, and this latter claim is not an issue on this appeal.
We feel obliged to accept plaintiff’s contention. In a complex, complicated case in which summary judgment is granted or denied, the burden is on the losing party to delineate the proceedings in the court below, preserve a record of the hearing, the comments of the court and seek a clear ruling on the issues involved and determined. Otherwise, on appeal, we shall use any reasonable basis disclosed by the record to uphold the order of the trial court.
C. A genuine issue of material fact exists on adequacy of warning.
This matter is before us on denial of defendants’ motion for summary judgment. The finding of the trial court is limited in scope and poorly worded. We read it to mean:
In the negligence claim, the warning given did not, as a matter of law, contain sufficient information “as to the use of Sinus Congestion Tablets” to preclude liability of defendants; that a genuine issue of material fact exists as to the adequacy of the warning.
Defendants added a new section to the Brief-in-Chief entitled “Statement of Facts.” Here defendants argue that plaintiff didn’t bother to read the full label on Sinutabs; that if there was a warning, he did not rely on it; that when suit was filed, plaintiff was under the impression there was no warning on the label of “Sinus Congestion Tablets”; that if he had read the warning he would have quit using the tablets or asked the doctor about it. These are matters that relate to the conduct of plaintiff and bear upon his contributory negligence. They may test the credibility of plaintiff. These facts, however, do not relate to the issue of the adequacy of the warning given.
Defendants argue that the serious abuse of the product “is so extreme as to be almost beyond belief.” Upon what basis this exaggeration is stated, we do not know. Defendants do not point to any evidence that plaintiff ingested more than the recommended dosage. Perhaps defendants mean that plaintiff took these tablets regularly for more than 10 days without consulting a physician. This fact, if true, does not bear upon the adequacy of the warning. It may constitute a factor relative to contributory negligence of the plaintiff.
The burden is on the defendants, not the plaintiff, to show an absence of a genuine issue of material fact, or that they were entitled as a matter of law, for some other reason, to a summary judgment in their favor. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).
The only evidence presented by defendants is a regulation adopted under the Federal Food and Drug and Cosmetic Act of 1938, the contents of which appear on the label, and that there has never been a change in the label on the Skaggs Sinus Congestion Tablets. Apart from the regulation, we can find nothing that bears upon the adequacy of the warning. Neither do we find a discussion of the meaning of an adequate warning.
The warning on the label was adopted verbatim from the warning promulgated by FFDC in 1964. The regulation is still in effect. 21 C.F.R. § 201.309 (1977). Defendants cite no authority to support a contention that this warning is adequate as a matter of law. In fact, it is not.
The Federal Act does not purport to change the common-law duty to warn. It is evidence on the issue of negligence, but it does not mean that the defendant is free of negligence. Rumsey v. Freeway Manor Minimax, 423 S.W.2d 387 (Tex.Civ.App. 1968). “The Defendant still owes a duty to warn of dangers of which it knew or should have known in the exercise of reasonable care.” Stromsodt v. Parke-Davis and Company, 257 F.Supp. 991, 997 (D.N.D.1966), aff’d 411 F.2d 1390 (8th Cir. 1969); Love v. Wolf, 226 Cal.App.2d 378, 38 Cal.Rptr. 183 (1964).
Statutes and regulations of these agencies merely set minimum standards. Rumsey, supra; Whitley v. Cubberly, 24 N.C.App. 204, 210 S.E.2d 289 (1974); Stevens v. Parke, Davis & Company, 9 Cal.3d 51, 107 Cal.Rptr. 45, 507 P.2d 653 (1973); Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971).
We hold that a warning adopted verbatim from a regulation promulgated by a federal or state agency does not constitute an adequate warning as a matter of law.
Defendants rely on Garrett v. Nissen Corporation, 84 N.M. 16, 498 P.2d 1359 (1972); Hines v. St. Joseph’s Hospital, 86 N.M. 763, 527 P.2d 1075 (Ct.App.1974); and Skyhook Corporation v. Jasper, 90 N.M. 143, 560 P.2d 934 (1977). These cases are product liability cases related to plaintiff’s claim of strict liability.
Defendants have not me't the burden placed upon them by the Order that denied them summary judgment on plaintiff’s claim of ordinary negligence.
What is an adequate warning on a drug label? “Adequate” is defined as “sufficient for a specific requirement.” Nissen v. Miller, 44 N.M. 487, 490, 105 P.2d 324, 326 (1940) says:
The word “sufficient” is defined to mean adequate, enough, equal to the end proposed, and that which may be necessary to accomplish an object; it embraces no more than that which furnishes a plenitude, which, when done, suffices to accomplish the purpose intended in light of present conditions and viewed through .the eyes of practical and cautious men.
“Warning” is defined to mean previous notice; caution against danger. Antonian v. Southern Pac. Co., 9 Cal.App. 718, 100 P. 877 (1909). The purpose of a “warning” is to apprise a party of the existence of danger of which he is not aware to enable him to protect himself against it, and where the party is aware of the danger, the warning will serve no useful purpose and is unnecessary, and there is no duty to warn against risks which are open and obvious. Wiseman v. Northern Pac. Ry. Co., 214 Minn. 101, 7 N.W.2d 672 (1943).
An “ample warning” has been stated as a warning that would discharge the duty of reasonable care or fully sufficient to apprise those entitled thereto. City Ice & Fuel Co. v. Center, 54 Ohio App. 116, 6 N.E.2d 580 (1936).
A “reasonable warning” is one which is reasonable under the circumstances, by one exercising ordinary care under the circumstances. Olney v. Kansas City Public Service Co., 19 S.W.2d 534 (Mo.App. 1929).
In- First Nat. Bk., Albuquerque v. Nor-Am Agr. Prod., Inc., 88 N.M. 74, 537 P.2d 682 (Ct.App.1975) summary judgment was granted. Two theories of recovery were sought by plaintiff against defendant:
(1) Negligence as to the warning, provided by the seller, of dangers associated with the use of the seller’s product;
(2) Special liability of the seller of a product for physical harm to a user or consumer, pursuant to Restatement, Torts, 2d § 402A, v. 2 (1965), at 347-348. [88 N.M. at 79, 537 P.2d at 687.]
In reversing the case, we held that adequacy of the warning given by a manufacturer in a negligence action presents an issue of fact for the jury. In making this determination, we said:
The warning must adequately indicate the scope of the danger.
******
“The warning must reasonably communicate the extent or seriousness of harm that could result from the danger * * ”
******
The physical aspects of the warning— conspicuousness, prominence, relative size of print, etc., — must be adequate to alert the reasonably prudent person. [88 N.M. at 83-84, 537 P.2d at 691.]
From this potpourri, we hold that an “adequate warning” in this case means a notice placed on a label of “Sinus Congestion Tablets,” reasonably readable, that apprises a consumer exercising reasonable care under the circumstances, of the existence and seriousness of the danger, sufficient to enable the consumer to protect himself against it, and sufficient to accomplish the purpose intended by the seller in the light of present conditions.
The “warning” given by defendants states that “This medication may damage the kidneys.” [Emphasis added.] It does not apprise the consumer of the fact that it will damage the kidneys. It states “when used in large amounts.” [Emphasis added.] The term “large” is vague and indefinite to a consumer. It does not state that “Phenacetin” is a dangerous drug. The lettering is so tiny it might require a consumer to read the words with a magnifying glass. As a result, we conclude that a genuine issue of material fact exists on the adequacy of the warning.
Affirmed.
IT IS SO ORDERED.
HERNANDEZ, J., specially concurring. LOPEZ, J., concurs.