Ortolano v. BDI Marketing

930 So. 2d 192, 2006 La. App. LEXIS 951, 2006 WL 1071906
CourtLouisiana Court of Appeal
DecidedApril 25, 2006
DocketNo. 05-CA-989
StatusPublished
Cited by3 cases

This text of 930 So. 2d 192 (Ortolano v. BDI Marketing) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ortolano v. BDI Marketing, 930 So. 2d 192, 2006 La. App. LEXIS 951, 2006 WL 1071906 (La. Ct. App. 2006).

Opinion

McMANUS, Judge.

\ STATEMENT OF THE CASE

On August 20, 2002, plaintiff, Kermit Ortolano, filed a Petition for Damages [193]*193against BDI Marketing, Body Dynamics, Inc. and ABC Insurance, as the insurer for BDI and Body Dynamics. Ortolano alleged that on August 20, 2001, he awoke with chest pains and was taken to the hospital and diagnosed as having a heart attack. He was eighteen years old at the time and in excellent health. He had allegedly taken a normal dose of Mini Brands Two-Way Action medication the day before. Ortolano alleged the ingestion of the Mini Brands Two-Way Action was a cause-in-fact of the heart attack and he sustained painful, debilitating injuries to his heart because of the ingestion of the defective product. He was required to seek medical help and was hospitalized for four days, suffered pain, discomfort, aggravation and loss of enjoyment of life. He also alleged he sustained economic loss from his inability to work due to his injuries.

Ortolano’s petition alleged the defendants were liable to him for the distribution and marketing of the product without regard to users’ safety because: 1) the defective product was inferior' in design and marketed to a group other than the drugs intended use, 2) the product was unreasonably dangerous in construction [ opr composition, 3) the product was unreasonably dangerous in design, 4) the product was unreasonably dangerous because of adequate warnings about the drug was not provided to consumers, and 5) any and all other acts of negligence and carelessness.

Defendants filed an Answer on November 14, 2002 and Ortolano then filed a Supplemental and Amended Petition in May 2003 adding Mediplas Innovations, Inc. as a defendant and substituting Gemini Insurance Company for ABC Insurance Company. The supplemental petition alleged that Mediplas was the manufacturer of Mini Thins/Mini-brand Two-Way Action and the product was defective because Mediplas failed to warn individuals of the hazardous and/or toxic nature of the pills. Ortolano alleged that Mediplas had expressly warranted the pills were safe and fit for purposes they were intended, and Ortolano further alleged the pills were not safe and effective because they contained ingredients that caused Ortolano’s heart attack.

All parties engaged in discovery and defendants filed an Answer to the Amended and Supplemental Petition on October 31, 2003. Body Dynamics, Inc. d/b/a BDI Marketing then filed a motion for summary judgment arguing that there was no claim under the Louisiana Products Liability Act, which is Ortolano’s exclusive remedy for liability of manufacturers for damages caused by their products. Mediplas and Gemini Insurance also filed a motion for summary judgment based on the same argument. A hearing was held on these motions for summary judgment on January 6, 2005.

On April 21, 2005, the trial court granted both motions, dismissing all claims filed by Ortolano. The trial court found that Ortolano could not prevail on any of the theories of recovery provided by the Louisiana Products Liability Act. The trial court found that under the Act, Ortolano’s damages had to be proximately 14caused by a characteristic of the product that renders the product unreasonably dangerous when the damage arose from a reasonably anticipated use of the product by the claimant or another person or entity. The trial court acknowledged that Ortolano admitted in his deposition that he took six tablets within fourteen and a half hours and claims he did not exceed the label’s recommended dosage of six tablets in twenty-four hours. Ortolano also admitted that he did not read the entire label but read only the dosage information and warnings. [194]*194He took approximately two and a half pills every four hours, disregarding the recommended dosage of one half to one tablet every four hours, or not more than six tablets in twenty-four hours. The trial court found that an abuse of dosage is not a reasonably anticipated use, regardless of the motive for taking the medication.

The trial court also found that Ortolano did not present evidence that the product in question failed to provide an adequate warning. Ortolano admitted in his deposition that he did not read the entire label, therefore, the trial court found that he would not have been aware of a “sufficient” warning, even if one had existed. The trial court further found that Ortola-no’s failure to warn claim must fail because it could not have been the proximate cause of his damages. Finally, the trial court found that there were no genuine issues of material fact because Ortolano has failed to establish that he will be able to satisfy his evidentiary burden at trial that the product is unreasonably dangerous in construction or composition in design or by failing to conform to an express warranty of the manufacturer.

On May 4, 2005, the trial court signed a Final Judgment ordering that Ortolano’s lawsuit be dismissed with prejudice, at his cost, since the defendants’ motion for summary judgment had been granted. Ortola-no now appeals the trial court’s judgment alleging the trial court erred in granting defendants’ motions for summary judgment. Ortolano argues there were genuine issues of material fact to |fibe decided by the trier of fact and the court invaded the province of the jury by weighing conflicting evidence and making a factual determination that the defendants did not breach the applicable standard of care. He further argues the trial court failed to view the evidence in the light most favorable to him, the non-movant.

For the reasons which follow, we affirm the judgment of the trial court.

DISCUSSION

Summary judgment should be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law, shall be granted. La. C.C.P. art. 966(C)(1). An appellate court shall conduct a de novo review of the evidence to determine whether summary judgment granted by the trial court is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Prince v. K-Mart Corp., 01-1151 (La.App. 5 Cir. 3/26/02), 815 So.2d 245, 248.

Ortolano’s claims against defendants are governed by the Louisiana Products Liability Act. La. R.S. 9:2800.54 provides that:

A. The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.
B. A product is unreasonably dangerous if and only if:
(1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55;
[r(2) The product is unreasonably dangerous in design as provided in R.S. 9:2800.56;
[195]*195(3) The product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in R.S. 9:2800.57; or

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Bluebook (online)
930 So. 2d 192, 2006 La. App. LEXIS 951, 2006 WL 1071906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortolano-v-bdi-marketing-lactapp-2006.