MacDonald v. Ortho Pharmaceutical Corp.
MacDonald v. Ortho Pharmaceutical Corp.
Opinion of the Court
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.
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.”
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.
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.
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
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
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.
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
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
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
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
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.
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.
The only issues before us are issues of the drug manufacturer’s liability.
FDA regulations in effect during the time period relevant to this litigation required that the following warning be included in or with the pill dispenser:
“Do Not Take This Drug Without Your Doctor’s Continued Supervision.
“The 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. The most serious known side effect is abnormal blood clotting which can be fatal.
“Safe use of this drug requires a careful discussion with your doctor. To assist him in providing you with the necessary information,
(Firm name)
ten in a style understandable to you as the drug user. This provides information on the effectiveness and known hazards of the drug including warnings, side effects and who should not use it. Your doctor will give you this booklet (or other form) if you ask for it and he can answer any questions you may have about the use of this drug.
“Notify your doctor if you notice any unusual physical disturbance or discomfort.”
21 C.F.R. § 130.45(d)(1), 35 Fed. Reg. 9002-9003 (1970), recodified at 21 C.F.R. § 310.501(a)(4), 39 Fed. Reg. 11680 (1974), 40 Fed. Reg. 5354 (1975).
Applicable FDA regulations required that the booklet contain “information in lay language, concerning effectiveness, contraindications, warnings, precautions, and adverse reactions,” including a warning “regarding the serious side effects with special attention to thromboembolic disorders and stating the estimated morbidity and mortality in users vs. nonusers.” 21 C.F.R. § 130.45(e) & (e)(3), 35 Fed. Reg. 9002, 9003 (1970), recodified at 21 C.F.R. § 310.501(a)(6) & (a)(6)(iii), 39 Fed. Reg. 11680 (1974), 40 Fed. Reg. 5353 (1975). Ortho’s booklet contained the following information:
“About blood clots
“Blood clots occasionally form in the blood vessels of the legs and the pelvis of apparently healthy people and may threaten life if the clots break loose and then lodge in the lung or if they form in other vital organs, such as the brain. It has been estimated that about one woman in 2,000 on the pill each year suffers a blood clotting disorder severe enough to require hospitalization. The estimated death rate from abnormal blood clotting in healthy women under 35 not taking the pill is 1 in 500,000; whereas for the same group taking the pill it is 1 in 66,000. For healthy women over 35 not taking the pill, the rate is 1 in 200,000 compared to 1 in 25,000 for pill users. Blood clots are about three times more likely to develop in women over the age of 34. For these reasons it is important that women who have had blood clots in the legs, lungs or brain not use oral contraceptives. Anyone using the pill who has severe leg or chest pains, coughs up blood, has difficulty breathing, sudden severe headache or vomiting, dizziness or fainting, disturbances of vision or speech, weakness or numbness of an arm or leg, should call her doctor immediately and stop taking the pill.”
MacDonald’s hospital records refer to her injury as a “cerebral vascular accident,” terminology likewise descriptive of brain damage attributable to blood clotting.
Subsequent to the events in this case, the FDA regulation was amended by 43 Fed. Reg. 4221 (1978), which replaced the regulation requirement of a specified warning on the pill dispenser, see note 3, supra, with a requirement that the dispenser contain a warning “of the serious side effects of oral contraceptives, such as thrombophlebitis, pulmonary embolism, myocardial infarction, retinal artery thrombosis, stroke, benign hepatic adenomas, induction of fetal abnormalities, and gallbladder disease” (emphasis added). See 21 C.F.R. § 310.501(a) (2)(iv) (1984).
MacDonald stated at trial that her gynecologist had informed her only that oral contraceptives might cause bloating, and had not advised her of the
MacDonald farther testified at trial that she had read both the warning on the Dialpak tablet dispenser as well as the booklet which she received from her gynecologist. See notes 3 and 4, supra.
The only issue before us concerns the scope of Ortho’s duty to the plaintiffs. The defendant does not contest the damages but relies solely on its claim that it owes no duty to warn the plaintiffs directly.
Ortho points out that a number of courts have reached this result in oral contraceptive cases. See, e.g., Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 656 (1st Cir. 1981) (applying New Hampshire law); Lindsay v. Ortho Pharmaceutical Corp., 637 F.2d 87, 91 (2d Cir. 1980) (applying New York law); Skill v. Martinez, 91 F.R.D. 498, 507 (D. N.J. 1981), aff’d, 677 F.2d 368 (3d Cir. 1982); Goodson v. Searle Laboratories, 471 F. Supp. 546, 549 (D. Conn. 1978); Dunkin v. Syntex Laboratories, Inc., 443 F. Supp. 121, 123 (W.D. Tenn. 1977); Chambers v. G.D. Searle & Co., 441 F. Supp. 377, 381 (D. Md. 1975), aff’d per curiam, 567 F.2d 269 (4th Cir. 1977); Carmichael v. Reitz, 17 Cal. App. 3d 958, 989 (1971); Hamilton v. Hardy, 37 Colo. App. 375, 387 (1976); Mahr v. G.D. Searle & Co., 72 Ill. App. 3d 540, 561 (1979); Ortho Pharmaceutical Corp. v. Chapman, 180 Ind. App. 33, 43 (1979); Seley v. G.D. Searle & Co., 67 Ohio St. 2d 192, 198 (1981); McEwen v. Ortho Pharmaceutical Corp., 270 Or. 375, 385 (1974); Leibowitz v. Ortho Pharmaceutical Corp., 224 Pa. Super. 418, 431 (1973). See also Terhune v. A.H. Robins Co., 90 Wash. 2d 9, 14 (1978) (intrauterine contraceptive device).
According to the American Medical Association, “the medical profession regards the pill, in most cases, as a convenience rather than a traditional medication.” Statement of American Medical Association, published in Science News, March 14, 1970, quoted in Comment, Liability of Birth Control Pill Manufacturers, 23 Hastings L.J. 1526, 1532 (1972). These distinguishing features have been recognized by legal commentators as well as by the medical profession. See Merrill, Compensation for Prescription Drug Injuries, 59 Va. L. Rev. 1, 91, 93 (1973); Comment, Liability of Birth Control Pill Manufacturers, 23 Hastings L.J. 1526, 1538-1543 (1972).
MacDonald saw her gynecologist once in the summer of 1973, once in the summer of 1974, and once in August of 1975. At each appointment, she received a prescription for birth control pills. Thus, eleven months had elapsed between her last gynecological checkup and her stroke in July, 1976.
See 21 C.F.R. § 130.45(a), 35 Fed. Reg. 9002 (1970) (oral contraceptives “are used for long periods of time by large numbers of women who, for the most part, are healthy and take them as a matter of choice for prophylaxis against pregnancy, in full knowledge of other means of contraception”); 43 Fed. Reg. 4215 (1978).
This opinion does not diminish the prescribing physician’s duty to “disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to” take “the pill.” Harnish v. Children’s Hosp. Medical Center, 387 Mass. 152, 155 (1982).
See Weinberger, Collateral Estoppel and the Mass Produced Product: A Proposal, 15 New Eng. L. Rev. 1, 36-38 (1980).
Dissenting Opinion
(dissenting). The court reverses the judgment below and holds Ortho Pharmaceutical Corporation (Ortho)
In order to fulfil its duty to warn consumers of risks associated with its product, a manufacturer of a nonprescription (“over-the-counter”) drag must place on the drag’s package printed warnings. That duty “derives from the basic marketing predicate of the over-the-counter drag industry, namely, that nonprescription drags are purchased by consumers for the purpose of self-medication typically without any intended or actual intervention by a physician.'” Torsiello v. Whitehall Laboratories, 165 N.J. Super. 311, 322 (1979) (emphasis added). In contradistinction, a manufacturer of a prescription drag fulfils its duty to warn a consumer by adequately informing the consumer’s physician — a “learned intermediary between the purchaser and the manufacturer” — of the drag’s associated risks. Sterling Drug, Inc. v. Cornish, 370 F.2d 82, 85 (8th Cir. 1966). That role results from the fact that, by definition, before a consumer uses a prescription drag, that consumer must have some interaction with a doctor. See 21 U.S.C. § 353(b)(1) (1982).*
Unless doctors have current, accurate, and complete information about a drug’s risks, they cannot properly perform their vital role. Therefore, courts have imposed on drug manufacturers the duty to provide doctors with that information. See, e.g., Brochu v. Ortho Pharmaceutical Corp., supra at 657-659. A drug manufacturer who fails properly to fulfil that duty must respond in damages to a patient who suffers an injury as a result. See, e.g., McEwen v. Ortho Pharmaceutical Corp., supra at 386-387.
I believe that the “prescription drug” rule, combined with the Harnish rule, most fairly and efficiently allocates among drug manufacturers, physicians, and drug users, the risks and responsibilities involved with the use of prescription drugs. Furthermore, I believe that those rules best ensure that a prescription drug user will receive in the most effective manner
Even though the court recognizes the universal application of the “prescription drug” rule, it states that “[ojral contraceptives . . . bear peculiar characteristics which warrant the imposition of a common law duty on the manufacturer to warn users directly of associated risks.” Ante at 136-137. The court attempts to distinguish contraceptive pills from other prescription drugs by comparing the relative involvement of doctor and patient in the prescribing process. “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 court asserts, “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
While I would choose the “prescription drug” rule over the rule announced today by the court, I recognize that the FDA has promulgated regulations governing the provision of printed information to users of oral contraceptives. I would not consider the imposition of tort liability for failure to comply with those regulations, designed to further consumer protection, unfair nor unduly burdensome to contraceptive pill manufacturers. However, in my view, the evidence in this case would not support a finding that Ortho failed to comply with those regulations. The FDA required Ortho to place on every oral contraceptive pill dispenser a warning stating that the “most serious known side effect [of the oral contraceptive pill] is abnormal blood clotting which can be fatal.” 21 C.F.R. § 130.45(d)(1), 35 Fed. Reg. 9002-9003 (1970). Ortho complied in every way with that requirement. The FDA also required that Ortho make available to physicians for patients who requested it “information in lay language, concerning effectiveness, contraindications, warnings, precautions, and adverse reactions.” 21 C.F.R. § 130.45(e), 35 Fed. Reg. 9003 (1970). Ortho provided Carole MacDonald’s physician with a booklet that stated: “Blood clots occasionally form in the blood vessels of the legs and pelvis of apparently healthy people and may threaten life if the clots break loose and then lodge in the lung or if they form in other vital organs, such as the brain.” MacDonald’s physician gave Ortho’s booklet to MacDonald. The court finds it unnecessary to decide whether Ortho complied with FDA’s “lay language” requirement, ante at 140-141, but I do not believe that any rational trier of fact could have concluded that Ortho failed to comply with the regulation.
Furthermore, even if there be a common law duty necessitating a direct warning to the consumer with respect to the “nature and extent of the danger” of contraceptive pills, as the court declares, the MacDonalds presented no evidence that Ortho failed to fulfil that duty. The court states only that the jury
Section 353(b)(1) provides: “A drug intended for use by man which — (A) is a habit-forming drug to which section 352(d) of this title applies; or (B) because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not
Reference
- Full Case Name
- Carole D. MacDonald & Another vs. Ortho Pharmaceutical Corporation
- Cited By
- 134 cases
- Status
- Published