NO. 60 E.D. Appeal Dkt. 1983, Appeal from the Order of the Superior Court at No. 2880 Philadelphia, 1981, Reversing Judgment of the Court of Common Pleas of Philadelphia at No. 4166, May Term, 1975,
This appeal is from an Order of the Superior Court, 308 Pa. Super. 506, 454 A.2d 1012, reversing the Court of Common Pleas of Philadelphia, which had denied the motion for a new trial of the plaintiffs, appellees herein. We reverse.
Plaintiffs initiated this negligence action in May, 1975, against Armand Castagna, M.D., and CIBA-GEIGY Corporation. On January 16, 1976, Dr. Castagna joined Morris Park Pharmacy as an additional defendant. After a three week jury trial the jury returned a verdict against Dr. Castagna,*fn1 and in favor of Morris Park Pharmacy and CIBA-GEIGY.*fn2
On January 8, 1981, plaintiffs filed a motion for a new trial as to CIBA-GEIGY, contending that the jury verdict was against the weight of the evidence. Dr. Castagna joined in this motion and also filed a separate motion for new trial as to the verdict against him, contending that it too was against the weight of the evidence.
By Order of October 8, 1981, the trial court denied all of the above post-trial motions, and on November 5, 1981, judgment was entered on the verdicts. Plaintiffs filed a Notice of Appeal with the Superior Court on November 15, 1981. That court reversed the judgment of the trial court and remanded the case for a new trial (Opinion of Cirillo, J., with Johnson, J. concurring in the result). A petition for reargument was denied by the Superior Court, and CIBA-GEIGY petitioned this Court for allowance of appeal, which was granted.
The underlying facts of this case are as follows. On November 27, 1973, Maria Baldino, nee Bianco, consulted
Dr. Armand Castagna, a general practitioner, for treatment of lower back pain. After a brief examination Dr. Castagna diagnosed her condition as an inflamed coccyx and prescribed Butozoiden-Alka, a drug manufactured by CIBA-GEIGY. The prescription was for 30 capsules to be taken over 10 days. Dr. Castagna prescribed this medication without having taken a complete medical history of the patient, and without having taken a blood test.
On January 24, 1974, Mrs. Baldino telephoned Dr. Castagna's office complaining of a recurrence of pain in the same area, and requested permission to have the Butazolidin prescription refilled. At trial there was some dispute as to whether Dr. Castagna ever authorized the refill, but this dispute was resolved by the jury contrary to Dr. Castagna's contentions. It is undisputed that the prescription was refilled by the Morris Park Pharmacy. Again, Dr. Castagna did not request a medical history or blood test, nor did he make any effort to ascertain whether Mrs. Baldino had experienced any side effects or adverse reactions from the first prescription. This latter omission was particularly significant since five days prior to the request for a refill (i.e. January 19, 1974), Mrs. Baldino had been to another physician, Dr. Herbert Lipkin, complaining of a sore throat, swollen glands, fatigue and bruising: all of which were listed in the then current prescribing information contained in the Physicians' Desk Reference as symptoms of possible adverse reaction to Butazolidin.
In August of 1974, Mrs. Baldino was diagnosed as suffering from aplastic anemia: a serious blood disorder which has resulted in a shortened life expectancy, an inability to have children, and general physical malaise; requiring her to undergo blood transfusions every two months, and take male hormones which have deepened her voice and caused abnormal growths of body hair. The jury found, and we agree that there was sufficient evidence to support this finding, that Mrs. Baldino's condition was proximately caused by the Butazolidin capsules.
At trial plaintiff sought to show that Dr. Castagna had negligently prescribed Butazolidin,*fn3 and that CIBA-GEIGY promoted Butazolidin in such a manner as to encourage physicians to over-prescribe this drug and their promotional campaign had the effect of nullifying otherwise adequate warnings. The theory of liability against CIBA-GEIGY was primarily based on this Court's decision in Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971), where we recognized a cause of action against drug manufacturers for the overpromotion of a drug that nullify otherwise adequate warnings.
In Incollingo we held that, assuming proper preparation and warning, a manufacturer of drugs is not strictly liable for unfortunate consequences attending the use of otherwise useful and desirable products which are attended with a known but apparently reasonable risk. Id., 444 Pa. at 288, 282 A.2d at 221. Rather, such a manufacturer is liable only if he fails to exercise reasonable care to inform those for whose use the article is supplied of the facts which make it likely to be dangerous. Id., 444 Pa. at 288 n. 8, 282 A.2d at 220 n. 8 (citing Section 388 of the Restatement (Second) of Torts). We also held that a drug manufacturer can be held to have breached his duty of reasonable care by promoting its product in such a way as to nullify printed warnings. However, resolution of "whether or not the printed words of warning were in effect cancelled out and rendered meaningless in the light of the sales effort made by the detail men, were questions properly for the jury." Id., 444 Pa. at 289, 282 A.2d at 220.
In the present case the jury decided that CIBA-GEIGY did not violate the applicable standard of care. The question before us now is whether there was sufficient evidence ...