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ANASTOS MAKRIPODIS v. MERRELL-DOW PHARMACEUTICALS (03/16/87)

filed: March 16, 1987.

ANASTOS MAKRIPODIS, A MINOR, BY HIS GUARDIAN, MIKE MAKRIPODIS AND MIKE MAKRIPODIS AND DOLLY MAKRIPODIS, APPELLANTS,
v.
MERRELL-DOW PHARMACEUTICALS, INC. AND RITE AID CORPORATION, APPELLEES



Appeal from the Order entered October 31, 1985 in the Court of Common Pleas of Allegheny County, Civil, No. G.D. 85-14293.

COUNSEL

Paul Hilko, Pittsburgh, for appellants.

Raymond G. Hasley, Pittsburgh, for appellees.

Rowley, McEwen and Tamilia, JJ.

Author: Mcewen

[ 361 Pa. Super. Page 591]

Appellants undertook this products liability action alleging that their child, Anastos Makripodis, was born with certain congenital abnormalities as a result of the ingestion of the drug Bendectin by his mother, appellant Dolly Makripodis, during her pregnancy. The drug Bendectin was manufactured by Merrell-Dow Pharmaceuticals, Inc. and purchased by the appellants at a pharmacy owned by Rite Aid Corporation, upon presentation of a physician's prescription for the drug. Appellants filed suit against Merrell-Dow Pharmaceuticals, Inc. and Rite Aid Corporation, and alleged, inter alia, that appellee Rite Aid Corporation (1) had breached the implied warranty of merchantibility because Bendectin was unfit and unsafe for its ordinary use, the treatment of nausea in pregnant women, and (2) that Rite Aid was strictly liable in tort as Bendectin was a defective product, unreasonably dangerous due to the absence of proper warnings concerning its teratogenic potential. The distinguished Judge Emil E. Narick granted the preliminary objections filed by Rite Aid Corporation, and dismissed the complaint as to Rite Aid, after concluding that the complaint failed to state a cause of action against Rite Aid. The trial court so concluded by reason of its holdings (1) that a pharmacist cannot be held liable for breach of an implied warranty of merchantibility where a prescription drug is properly filled with an unadulterated drug, and (2) that a pharmacist cannot be held strictly liable on the basis of inadequacies in the warnings provided by the manufacturer since the warnings required to be provided by the manufacturer concerning any risks or dangers attendant to the use of the drug need be supplied only to physicians and thus do not impact upon the safe use of the drug as sold by the pharmacy. We affirm.

The standard of review which we must apply when examining a challenge to the sustaining of preliminary objections in the nature of a demurrer is well-settled:

[ 361 Pa. Super. Page 592]

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purposes of this review.] Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where doubt exists as to whether a demurrer should be sustained this doubt should be resolved in favor of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960).

Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461-462 (1983), quoting Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-1233 (1983). Accord: Kyle v. McNamara & Criste, 506 Pa. 631, 633-34, 487 A.2d 814, 815 (1985); Judge v. Allentown and Sacred Heart Hospital Center, 506 Pa. 636, 638-39, 487 A.2d 817, 818 (1985). See also: Baker v. Magnetic Analysis Corp., 347 Pa. Super. 188, 191-93, 500 A.2d 470, 472 (1985).

The issues posed are not novel, but the Pennsylvania appellate courts have not, until now, addressed the question of (1) whether a retail druggist, who properly fills a prescription of a medical doctor with the proper and unadulterated drug prescribed, is liable to the patient-purchaser for breach of an implied warranty of merchantibility if the drug produces harmful effects upon the purchaser, or (2) whether a retail druggist is strictly liable as the retailer of a defective product where the warnings provided by the drug manufacturer are inadequate.

Appellants first argue that the court erred in concluding that they had not stated a cause of action against Rite Aid for breach of the implied warranty of merchantibility since, they assert, such a warranty arises whenever goods are sold by a person who is a ...


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