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BENNETT v. RICHARDSON-MERRELL

June 29, 1964

HERBERT R. BENNETT, PLAINTIFF,
v.
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 physician.

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 market.

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 Mer/29.

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.

I

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 ...


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