APPEAL from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 12, 1978.
Plaintiffs appeal from an order granting the motion of Parke Davis & Company to dismiss the first three counts of a nine-count amended complaint seeking damages for injury allegedly resulting from the use of a drug. Those three counts were directed against defendant only, and the case remains pending in the trial court on six counts against the other named defendants.
It appears from the amended complaint that the prescription drug pitocin, manufactured and sold by Parke Davis & Company (defendant) was given to Ellen Woodill, mother of Eric Woodill (Eric) while she was hospitalized as an obstetrical patient. The drug was administered to her by order of her physician while the fetus was in high station.
In count I, which sounds in strict liability, Eric's parents seek damages for his serious injuries allegedly resulting from the administration of the drug to his mother. In count II, also sounding in strict liability, Eric's parents seek to recover the medical expenses incurred by Eric's treatment and for their "mental anguish and distress by reason of the injuries to their son." In count III, Eric's parents seek damages for Eric's injuries on a breach of implied warranty theory.
Defendant moved to dismiss, asserting generally that no cause of action was stated in either of counts I, II or III. Memoranda were submitted to the court and, after a hearing, defendants' motion was granted. The issue on appeal concerns the propriety of this dismissal order.
Regarding the dismissal of count I, the parties have presented two questions in this appeal. The first concerns whether a cause of action exists in strict liability against a drug manufacturer for failure to give a proper warning. Plaintiffs argue that Illinois recognizes such an action and that they have stated its essential elements in their complaint; whereas, defendant posits that the failure to warn is a negligence theory which cannot be a basis of strict liability.
Both parties correctly agree that negligence is not an element of strict liability. This is evident from the Restatement (Second) of Torts § 402A(2)(a) (1965), which provides that the doctrine applies even though "the seller has exercised all possible care in the preparation and sale of his product." See also Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill.2d 77, 82, 338 N.E.2d 857, 860, where the court stated that the purpose of strict liability "is best accomplished by eliminating negligence as an element * * *."
1 Although failure to warn has its roots in negligence, we believe it is now well recognized that a product may be defective or unreasonably dangerous under strict liability when it is not accompanied by an adequate warning of the danger attending its use. In Lawson v. G.D. Searle & Co. (1976), 64 Ill.2d 543, 356 N.E.2d 779, which involved the use of the drug enovid, the court in approving an instruction as to the applicable law, stated as follows:
"The court's instructions * * * told the jury that Enovid could be considered unreasonably dangerous if `it is not safe for such a use that is to be expected to be made of it and no warning is given.' This instruction parallels certain comments to section 402A of Restatement (Second) of Torts (1965). Comment h to that section states that a `product is not in a defective condition when it is safe for normal handling and consumption,' but where the seller `has reason to anticipate that danger may result from a particular use, as where a drug is sold which is safe only in limited doses, he may be required to give adequate warning of the danger * * *, and a product sold without such warning is in a defective condition.'" (Emphasis added.) (64 Ill.2d 543, 550, 356 N.E.2d 779, 782.)
"In the absence of adequate warning, liability may arise from use of an instrumentality not otherwise defective, since failure to warn may itself be the defect which causes injury."
In Frisch v. International Harvester Co. (1975), 33 Ill. App.3d 507, 516, 338 N.E.2d 90, ...