The opinion of the court was delivered by: Juergens, District Judge.
In this diversity suit the complaint alleges that the defendant
is a manufacturer and distributor of drugs for human consumption
to alleviate, cure, prevent or correct physical ailments; that
among the various products which the defendant produced and
marketed was a drug known and described by its copyright name of
Mer/29, being a drug intended for human consumption for the
purpose of lowering the cholesterol level in the blood.
The complaint further alleges that during or near the month of
November 1960 a medical doctor (whom the complaint names), in his
capacity as treating physician, prescribed Mer/29 for the purpose
of lowering the cholesterol level in plaintiff's blood and that
from November 1960 through February 1962 plaintiff consumed the
drug pursuant to the directions and prescriptions of his
The complaint then alleges that Mer/29 was expressly
represented by the defendant as suitable for human consumption
and reasonably fit for the purpose intended; that, in addition,
there was an implied warranty that the drug so manufactured, sold
and put upon the market by the defendant was reasonably fit for
the purpose intended and was not a substance which would cause
injury to persons consuming same under the direction of a
physician; that the plaintiff relied upon the warranties; and
that on April 16, 1962 the defendant withdrew the drug from the
The complaint further alleges that, unknown to the plaintiff
and in violation of the warranties, the drug contained dangerous
and harmful substances which caused the formation of cataracts in
the eyes of the person consuming it and that the defendant was
negligent in the manufacture and placing Mer/29 upon the market.
The complaint finally alleges that, as a direct and proximate
result of such breach of warranties and negligence, cataracts
formed in both eyes of the plaintiff as the result of consuming
The defendant has filed its motion to dismiss the complaint;
the most salient points being that (1) privity between plaintiff
and defendant is essential to an action for breach of warranty —
and none has been alleged; (2) plaintiff failed to comply with
the Illinois Sales Act, Section 49, Chapter 121 1/2, Illinois
Revised Statutes, by giving notice to "seller" of alleged breach
of warranty; and (3) the plaintiff's charge that the defendant
was negligent in the manufacture and placing the drug on the
market should be made more definite and certain.
PRIVITY BETWEEN THE PLAINTIFF AND DEFENDANT
In this diversity suit we are limited to ascertaining and
applying the law of Illinois as the same has been promulgated and
chartered for us by the Supreme Court of the State of Illinois;
if such court has not expressed itself upon the matter, then what
the Supreme Court of Illinois would declare the law to be if it
had this case before it.
In Patargias v. Coca-Cola Bottling Co. of Chicago, 332 Ill. App. 117,
74 N.E.2d 162 (1947), the plaintiff drank the greater part
of a bottle of Coca-Cola that had a mouse in it. She became ill.
The court in its opinion said that so far as it had been able to
determine the precise question as to whether the law imposes on
manufacturers of food sold in sealed containers an implied
warranty to the ultimate purchasers thereof that such articles of
food are fit for human consumption "has not heretofore been
considered or determined by the Supreme Court of this state."
It then analyzed the case of Davis v. Van Camp Packing Co.,
189 Iowa 775, 176 N.W. 382, 17 A.L.R. 649, and held that:
"* * * where an article of food or drink is sold in
a sealed container for human consumption, public
policy demands that an implied warranty be imposed
upon the manufacturer thereof that such article is
wholesome and fit for use, that said warranty runs
with the sale of the article for the benefit of the
consumer thereof and that plaintiff had the right to
maintain this action against the defendant on its
implied warranty as the manufacturer of the
Coca-Cola, which she purchased, that it was wholesome
and fit for human consumption."
In Patargias the court approved the language of Davis and Jacob
E. Decker & Sons, Inc., v. Capps, 139 Tex. 609, 164 S.W.2d 828,
142 A.L.R. 1479, to the effect that the ...