United States District Court, Eastern District of Illinois
June 29, 1964
HERBERT R. BENNETT, PLAINTIFF,
RICHARDSON-MERRELL, INC., A CORPORATION, DEFENDANT.
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
Privity of contract has been a continuing embarrassment for
those who employ the traditional implied warranty
concept in favor of a remote consumer. The field of implied
warranty has been in a state of confusion but appears to be
stabilizing itself. The liberal trend is toward allowing recovery
from a manufacturer for breach of warranty under factual
situations where once the rigid rule of caveat emptor applied.
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 question as to privity is
In Tiffin v. Great Atlantic and Pacific Tea Company, 18 Ill.2d 48,
162 N.E.2d 406 (1959), the plaintiff contended that Armour,
as the manufacturer, and A & P, as the retailer, both impliedly
warranted to the ultimate consumer that the ham was not only fit
for human consumption when purchased by Clara T. Tiffin but also
that it contained no bacteria which would cause contamination
when later used for the purpose for which it was bought. The
court was not required to pass squarely on the implied warranty
question as is noted when it said: "* * *, it is unnecessary for
us at this time to decide whether the implied warranty extended
to the limits urged by them. * * *"
But the court did say in Tiffin that:
"By furnishing food to the general public, the
manufacturer and retailer both impliedly warrant that
the product is fit for human consumption at the time
it leaves their respective control, and where the
food proves to be deleterious, either or both may be
required to respond in damages to the injured
consumer. * * *"
The court then states exceptions to this general rule, none of
which affects us in the case at bar.
The cases cited by the defendant are no authority for the
position it takes on the question of privity or are
distinguishable from this case. As an example, Albin v. Illinois
Crop Improvement Ass'n, Inc., 30 Ill.App.2d 283, 174 N.E.2d 697
(1961), was an action against the issuer of a tag certifying the
quality and purity of seed. Generally, an action on express
warranty in the nature of "ex contractu" cannot be maintained
unless there is privity of contract between the warrantor and the
person seeking recovery. The court held that there was
no express warranty and no direct contractual relationship
between the plaintiff and the defendant Crop Association.
Generally from this line of cases it may reasonably be stated
that under Illinois law the manufacturer was not responsible in
damages to a person with whom it has no contractual relationship
and is not in privity, because of alleged manufacture of a
product, unless the product is inherently dangerous or its nature
is such that it may become inherently dangerous if manufactured
But there are exceptions to this rule such as fraudulent or
deceitful statements or misrepresentations, implied warranties of
fitness for human consumption of foods, where it is determined
that privity between the parties is not necessary for breach of
It would not change our conclusion on the question of privity
by discussing the other cases cited in defendant's brief.
It is fair to assume from the Illinois cases that the trend,
particularly in products for human consumption or human use or
application, is away from the privity requirement in actions by
the ultimate consumer against a manufacturer for breach of
implied warranty of fitness.
It is also fair to assume that through advertising or other
media of education and information defendant has convinced and
persuaded the medical profession to prescribe its drug, since it
is in the very competitive field of supplying drugs and medicines
for the alleviation of human suffering as well as for its own
From the position taken it is not to be assumed that the
onerous burden of absolute liability is being imposed upon the
drug manufacturers as defendant alleges, since it must be kept in
mind that it would only be fair and just that cases of this
nature must be decided on the facts and circumstances as they
existed in the light of the knowledge at the time the drugs were
offered to the public.
Defendant's position on the question of privity is not tenable.
TO RECOVER IN AN ACTION FOR BREACH OF WARRANTY, THE BUYER MUST
HAVE GIVEN NOTICE OF THE ALLEGED BREACH TO THE SELLER
Section 49, Chapter 121 1/2, Illinois Revised Statutes (1959),
provides as follows:
"* * * if, after acceptance of the goods, the buyer
fail to give notice to the seller of the breach of
any promise or warranty within a reasonable time
after the buyer knows, or ought to know of such
breach, the seller shall not be liable therefor."
This section lays down no specific standard for testing the
sufficiency of a notice, but the nature of the case and its
particular facts have an important bearing.
In view of the fact that defects of quality of Mer/29 would not
become apparent until actual use was made of it by a human body,
and even then perhaps not until lapse of time known only to
scientific and medical men, the question of notice becomes one of
relative importance, and the time that notice was given, if at
all, is relative and a hard and fast rule cannot be laid down.
A defect in quality of Mer/29 would not become apparent to the
plaintiff until he made actual use of the drug and sufficient
time had elapsed within which to show the after-effects,
side-effects or injury that the taking of the drug would cause.
No case has been cited to the Court nor has it been able to
find a case which is in the remotest parallel to the facts here
presented, which has held that Section 49 is controlling under
similar facts. Each case cited by defendant in support of its
position that Section 49 controls is vastly different on the
facts from the case here under consideration. Where as here
plaintiff alleges a cause of action against the manufacturer of a
product intended for human consumption
purchased from an intermediate handler of the product and
resulting in damage to the ultimate consumer, the Court does not
believe that Section 49 of the Sales Act, Chapter 121 1/2,
Illinois Revised Statutes, is meant to control and does not
believe that the section cited requires the giving of notice by
an ultimate consumer to the manufacturer before an action may be
maintained on the implied warranty of fitness for human
MOTION FOR A MORE DEFINITE STATEMENT
Suffice it to say that a motion for more definite statement
should be granted only where the pleadings are so vague or
ambiguous that the defendant cannot reasonably be expected to
reply thereto. Such is not the case here.
The defendant may obtain the information it seeks by resorting
to the appropriate discovery procedures which are provided by the
Federal Rules of Civil Procedure. Factual details are more
properly ascertained by appropriate discovery procedure. Asher v.
Ruppa, 7th Cir., 173 F.2d 10.
Defendant asserts that the complaint fails to state a cause of
action and fails to allege sufficient facts to charge the
defendant with liability; that there are no facts alleged
sufficient in law to charge the defendant with negligence in
manufacturing and marketing the drug described in the complaint
and the allegation of negligence consists entirely of conclusions
of the pleader.
A complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him
to relief. The Federal Rules of Civil Procedure do not require a
claimant to set out in detail the facts upon which he bases his
claim. All the rules require is a short and plain statement of
the claim that will give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests. Conley
v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80.
The Court finds that the defendant's motion to dismiss and its
alternative motion to strike and its alternative motion for more
definite statement should be denied.
It is, therefore, the order of this Court that the defendant's
motion to dismiss, its alternative motion to strike and its
alternative motion for more definite statement be and the same
are hereby denied.
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