Wolfgruber v. Upjohn Co.
Cases that cite this one
85 later published cases cite this decision. The 25 that cite it most often are listed here.
- Davis v. South Nassau Communities Hospital (N.Y. 2015)
- Humphrey v. Diamant Boart, Inc. (District Court, E.D. New York 2008)
- Sanderson v. Upjohn Co. (District Court, D. Massachusetts 1984)
- The Matter of New York City Asbestos Litigation , Doris Kay Dummitt v. A.W. Chesterton , The Matter of Eighth Judicial District Asbestos Litigation , Joann H. Suttner v. A.W. Chesterton Company (N.Y. 2016)
- Martin v. Hacker (N.Y. 1993)
- Hoffman-Rattet v. Ortho Pharmaceutical Corp. (New York Supreme Court 1987)
- Dambacher by Dambacher v. Mallis (Pa. 1985)
- Cooley v. Carter-Wallace Inc. (Appellate Division of the Supreme Court of New York 1984)
- Schumacher v. Richards Shear Co. (N.Y. 1983)
- McFadden v. Haritatos (Appellate Division of the Supreme Court of New York 1982)
- Abrams v. Bute (Appellate Division of the Supreme Court of New York 2016)
- Gentile v. Biogen Idec, Inc. (Massachusetts Superior Court 2016)
- McDowell v. Eli Lilly & Co. (District Court, S.D. New York 2014)
- Kandt v. Taser International, Inc. (2d Cir. 2013)
- Davids v. Novartis Pharmaceuticals Corp. (District Court, E.D. New York 2012)
- DiBartolo v. Abbott Laboratories (District Court, S.D. New York 2012)
- Maxwell v. Howmedica Osteonics Corp. (District Court, N.D. New York 2010)
- Alston v. CARACO PHARMACEUTICAL, INC. (District Court, S.D. New York 2009)
- Nealy Ex Rel. Estate of Nealy v. United States Surgical Corp. (District Court, S.D. New York 2008)
- Hurley v. Heart Physicians, P.C. (Conn. 2006)
- Arnold v. Krause, Inc. (District Court, W.D. New York 2004)
- Militrano v. Lederle Laboratories (New York Supreme Court 2003)
- Militrano v. Lederle Labs. (New York Supreme Court 2003)
- Marshall v. Sheldahl, Inc. (District Court, N.D. New York 2001)
- Rivera-Emerling v. M. Fortunoff of Westbury Corp. (Appellate Division of the Supreme Court of New York 2001)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Richard J. Cardamons at the Appellate Division (72 AD2d 59).
Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler. Judge Meyer dissents and votes to reverse in an opinion in which Judge Fuchsberg concurs.
Dissenting Opinion
(dissenting). I would reverse and reinstate the order of Special Term which denied summary judgment to plaintiff based in part on. the fact that “plaintiff has not yet deposed the defendant.”
Plaintiff, a physician,. seeks to recover from defendant, drug manufacturer, for failure adequately to warn concerning the effects of the drug Cleocin. The Appellate Division reversing, granted summary judgment to defendant and held the warning contained in the package insert and in the Physician’s Desk Reference adequate as a matter of law.
Plaintiff’s infection developed in 1974 following administration of Cleocin to himself. Whether his doing so in the face of the warning printed in the insert and the desk reference and in view of his medical knowledge constituted contributory negligence or assumption of the risk presents a jury question' and furnishes no basis for summary judgment. Nor should plaintiff have been nonsuited on the adequacy of warning issue. Doing so deprived him of. his right to explore via pretrial discovery the facts known to defendant in 1974 as a basis for determining adequacy of the warning.
How fruitful such.discovery can be is, quite fortuitously, available in the record of a nearly identical case, Werner v Upjohn Co. (628 F2d 848). Comparison of defendant’s 1974 warning in the record of the present case with that in its 1974 “Dear Doctor” letter for the same drug set forth in the opinion in Werner shows the latter to be more detailed. Moreover, the history of the drug recounted in that opinion shows that disclosure may well provide plaintiff with evidence sufficient to take to the jury the question of
Plaintiff should not have been no-caused without an opportunity to obtain defendant’s records relating to its knowledge about and experience with the drug (CPLR 3212, subd [f]).
Order affirmed, etc.
Case-law data current through September 30, 2026. Source: CourtListener bulk data.