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07/13/87 James D. Kirk, v. Michael Reese Hospital and

July 13, 1987





513 N.E.2d 387, 117 Ill. 2d 507, 111 Ill. Dec. 944 1987.IL.979

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Myron T. Gomberg, Judge, presiding.


JUSTICE WARD delivered the opinion of the court. CHIEF JUSTICE CLARK and JUSTICE GOLDENHERSH took no part in the consideration or decision of this case. JUSTICE SIMON, Concurring in part and Dissenting in part.


The five causes consolidated in this appeal arise from one personal injury action. The plaintiff, James D. Kirk, filed a six-count complaint in the circuit court of Cook County against six defendants, five of whom are involved in this appeal. The defendants moved to dismiss the plaintiff's third amended complaint for failure to state a cause of action; the trial court dismissed the action against five of the defendants. On the plaintiff's appeal from the dismissal, the appellate court reversed the dismissals of the five counts and remanded for further proceedings. The defendants filed petitions for leave to appeal in this court under our Rule 315(a) (103 Ill. 2d R. 315(a)); we allowed the petitions and consolidated the five appeals for review.

Because this appeal is before the court on the defendants' motion to dismiss, all well-pleaded facts will be regarded as true. (Katz v. Belmont National Bank (1986), 112 Ill. 2d 64, 67; Mein v. Masonite Corp. (1985), 109 Ill. 2d 1, 7.) The plaintiff was injured August 1, 1978, while a passenger in a car driven by Daniel McCarthy when the car struck a tree. McCarthy had been a psychiatric patient at Michael Reese Hospital and Medical Center (hereafter Michael Reese), where he was treated by Dr. Irving H. Tracer and Dr. Henry K. Fine. The plaintiff alleges that Dr. Tracer was rendering medical treatment to McCarthy in the capacity of an agent, servant, or employee of Dr. Fine. The plaintiff alleges that Dr. Tracer, Dr. Fine, or their agents ordered prescription drugs in treating McCarthy. The drug Thorazine, which is manufactured by the defendant SmithKline Beckman Corp. (hereafter SmithKline), had been prescribed and McCarthy also had been given Prolixin Decanoate, which is manufactured by the defendant E.R. Squibb & Sons, Inc. (hereafter Squibb), on the day he was discharged from the hospital. McCarthy, following his discharge from Michael Reese, consumed an alcoholic drink. Later in the day, Kirk was a passenger in the car driven by McCarthy and was injured when the car left the roadway and struck a tree in Chicago Heights.

In count I of the plaintiff's third amended complaint, he seeks recovery from Michael Reese on the theory that the hospital negligently failed to adequately warn McCarthy that the prescribed drugs administered would diminish his physical and mental abilities. Counts II and III seek recovery from Drs. Tracer and Fine, respectively, on the theory that the physicians knew or should have known that the drugs would diminish McCarthy's mental abilities and that they negligently failed to warn McCarthy. Counts IV and V, both of which seek recovery against Michael Reese, as well as Squibb and SmithKline, respectively, are based on a strict liability theory and allege that the drugs were in an unreasonably dangerous condition because the manufacturers failed to adequately warn of the drugs' dangerous propensities, that is, that the drugs would diminish the physical and mental abilities of the user, McCarthy. Count VI seeks recovery from McCarthy for his alleged negligence in operating the car. The trial court, after memoranda were filed and numerous arguments were heard, granted the motions of the hospital, two doctors, and two drug companies to dismiss. The trial court also denied the plaintiff's oral motion to file a fourth amended complaint. Count VI against McCarthy was not dismissed and is not involved in this appeal.

The appellate court, with one Justice Dissenting, reversed and remanded the dismissed counts for trial. (136 Ill. App. 3d 945.) The appellate court, considering whether the defendants owed a duty to the plaintiff as but a single issue, held that the doctors, hospital, and drug manufacturers each had a duty to adequately warn McCarthy of the adverse effects of the drugs, which duty, the court stated, was implicitly extended to cover members of the public who may be injured as a proximate cause of the failure to adequately warn (136 Ill. App. 3d 945, 952). Too, the appellate court held the hospital was open to liability on a strict liability theory for failure to warn McCarthy of the effects of the prescribed drugs. As stated, the five defendants filed petitions for leave to appeal; their petitions were initially denied, but upon reconsideration, they were allowed and consolidated for review. Briefs amici curiae have been filed by five organizations. The Illinois Trial Lawyers Association, as amicus, supports the plaintiff's arguments that the appellate court decision should be affirmed. Another amicus, the Pharmaceutical Manufacturers Association, supports the arguments of defendants SmithKline and Squibb. The Illinois Hospital Association and Metropolitan Chicago Healthcare Council, in a joint amicus brief, support Michael Reese's views and particularly argue against liability being imposed toward the hospital under strict liability principles. The Illinois Association of Defense Trial Counsel generally argues to reverse the appellate court's decision and specifically supports the drug manufacturers' views.

Because we are reviewing the dismissal of a complaint for failure to state a cause of action, we must determine the legal sufficiency of the complaint. (Katz v. Belmont National Bank (1986), 112 Ill. 2d 64, 67.) Pleadings are to be liberally construed with a view to doing Justice between the parties (Ill. Rev. Stat. 1985, ch. 110, par. 2-603(c); Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 17), but that does not lessen the obligation of the plaintiff to set out facts necessary for recovery under the theory asserted in the complaint. (Teter v. Clemens (1986), 112 Ill. 2d 252, 256-57.) Section 402A of the Restatement (Second) of Torts (1965), which this court has previously followed (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612), would subject a seller or manufacturer of a product to liability if the product is sold "in a defective condition unreasonably dangerous" to an ultimate user or consumer who is injured by the product. It is recognized that a failure to warn of a product's dangerous propensities may serve as the basis for holding a manufacturer strictly liable in tort. (Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 206; Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 29; Restatement (Second) of Torts sec. 402A, comment j (1965).) A prescription drug may be deemed unreasonably dangerous because of the absence of an adequate warning accompanying the product as the product may be "unavoidably unsafe" without such warning. Restatement (Second) of Torts sec. 402A, comment k (1965); Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 550-51.

The plaintiff asserts that, while the class of persons to whom the warning is required to be given may be very limited, the class of persons to whom the duty is owed includes the public generally. He contends also that the appellate court holding does not abolish or diminish the "learned intermediary" doctrine. The plaintiff, although he argued at the trial proceedings that the pharmaceutical companies owed a duty to warn the patients who use the drugs, now accepts Squibb's and SmithKline's position that adequate warnings are to be given to physicians only and not to the public generally. Our appellate court has previously adopted the learned intermediary doctrine (Mahr v. G. D. Searle & Co. (1979), 72 Ill. App. 3d 540 (applying Texas law); Hatfield v. Sandoz-Wander, Inc. (1984), 124 Ill. App. 3d 780 (applying Indiana law); Eldridge v. Eli Lilly & Co. (1985), 138 Ill. App. 3d 124), but this court had not directly considered the issue. The rule, as adopted in numerous jurisdictions, provides that manufacturers of prescription drugs have a duty to warn prescribing physicians of the drugs' known dangerous propensities, and the physicians, in turn, using their medical judgment, have a duty to convey the warnings to their patients. (Hatfield v. Sandoz-Wander, Inc. (1984), 124 Ill. App. 3d 780, 788; Mahr v. G. D. Searle & Co. (1979), 72 Ill. App. 3d 540, 561; Hoffman v. Sterling Drug, Inc. (3rd Cir. 1973), 485 F.2d 132, 142; Crocker v. Winthrop Laboratories (Tex. 1974), 514 S.W.2d 429; Stone v. Smith, Kline & French Laboratories (11th Cir. 1984), 731 F.2d 1575, 1579; Stevens v. Parke, Davis & Co. (1973), 9 Cal. 3d 51, 507 P.2d 653, 107 Cal. Rptr. 45; Terhune v. A. H. Robins Co. (1978), 90 Wash. 2d 9, 577 P.2d 975; see also W. Prosser & W. Keeton, The Law of Torts sec. 96, at 688 (5th ed. 1984).) The rationale for the doctrine was stated in a holding concerning Thorazine, one of the drugs involved here, in Stone v. Smith,Kline & French Laboratories (11th Cir. 1984), 731 F.2d 1575, 1579:

"'We cannot quarrel with the general proposition that where prescription drugs are concerned, the manufacturer's duty to warn is limited to an obligation to advise the prescribing physician of any potential dangers that may result from the drug's use. This special standard for prescription drugs is an understandable exception to the Restatement's general rule that one who markets goods must warn foreseeable ultimate users of dangers inherent in his products. See Restatement (Second) of Torts, Section 388 (1965). Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drug as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers. The choice he makes is an informed one, and individualized medical judgment bottomed on a knowledge of both patient and palliative. Pharmaceutical companies then, who must warn ultimate purchasers of dangers inherent in patent drugs sold over the counter, in selling prescription drugs are required to warn only the prescribing physician, who acts as a "learned intermediary" between manufacturer and consumer.'" (Emphasis in original.) 731 F.2d 1575, 1579-80, quoting Reyes v. Wyeth Laboratories (5th Cir. 1974), 498 F.2d 1264, 1276, cert. denied (1974), 419 U.S. 1096, 42 L. Ed. 2d 688, 95 S. Ct. 687.

The drug manufacturer generally communicates warnings relating to prescription drugs to the medical profession through package inserts, the Physician's Desk Reference, "Dear Doctor" letters, detailmen, and through other measures. (Sterling Drug, Inc. v. Yarrow (8th Cir. 1969), 408 F.2d 978; Mahr v. G. D. Searle & Co. (1979), 72 Ill. App. 3d 540, 562; Parke-Davis & Co. v. Stromsodt (8th Cir. 1969), 411 F.2d 1390.) The doctor, functioning as a learned intermediary between the prescription drug manufacturer and the patient, decides which available drug best fits the patient's needs and chooses which facts from the various warnings should be conveyed to the patient, and the extent of disclosure is a matter of medical judgment. (Hatfield v. Sandoz-Wander, Inc. (1984), 124 Ill. App. 3d 780, 788; Eldridge v. Eli Lilly & Co. (1985), 138 Ill. App. 3d 124, 127; Jones v. Irvin (S.D. Ill. 1985), 602 F. Supp. 399, 402.) As such, we believe the learned intermediary doctrine is applicable here and that there is no duty on the part of manufacturers of prescription drugs to directly warn patients. Certainly, if the manufacturer of a prescription drug has no duty to directly warn the user of the drug of possible adverse effects, it has no duty to warn a nonuser as Kirk.

The plaintiff also argues that the warnings given to the two doctors here were inadequate, thus making the prescription drugs "unreasonably dangerous." This contention, however, is premature and puts the cart before the horse. As we determined in Winnett v. Winnett (1974), 57 Ill. 2d 7, 10, whether a product is unreasonably dangerous for its intended uses "is simply not a relevant consideration unless plaintiff is a person entitled to the protections afforded by the concepts of strict-tort-liability actions against manufacturers." It is recognized that a legal duty is imposed under strict liability upon those in the original production chain of a product to the benefit of those individuals to whom injury from a defective product may reasonably be foreseen. (Court v. Grzelinski (1978), 72 Ill. 2d 141, 146.) Those individuals may include not only the ultimate users or consumers, but also may include persons outside the purchasing chain of the product (Restatement (Second) of Torts sec. 402A, comment l (1965); Court v. Grzelinski (1978), 72 Ill. 2d 141, 146 (holding that, to the extent a fireman is a person to whom injury from the product may reasonably be foreseen, he may recover under products liability, even though his injury occurred while fighting a fire in the course of his employment); Lewis v. Stran Steel Corp. (1974), 57 Ill. 2d 94, 96.) In Winnett, we said:

"In our judgment the liability of a manufacturer properly encompasses only those individuals to whom injury from a defective product may reasonably be foreseen and only those situations where the product is being used for the purpose for which it was intended or for which it is reasonably foreseeable that it may be used. Any other approach to the problem results in making the manufacturer and those in the chain of product distribution virtual insurers of the product, a position rejected by this court in Suvada." 57 Ill. 2d 7, 11.

Winnett determined that whether a plaintiff is entitled to the protection afforded by the concepts of strict tort liability depends on whether the alleged conduct was reasonably foreseeable. "A foreseeability test, however, is not intended to bring within the scope of the defendant's liability every injury that might possibly occur." (57 Ill. 2d 7, 12; see also Riordan v. International Armament Corp. (1985), 132 Ill. App. 3d 642 (no duty on part of the handgun manufacturer to warn consumers of illegal handgun uses for the benefit of a shooting victim).) Questions of foreseeability are ordinarily for a jury to resolve, but where the facts alleged in a complaint on their face demonstrate that the plaintiff would never be entitled to recover, that complaint is properly dismissed. (Winnett v. Winnett (1974), 57 Ill. 2d 7, 13.) We believe the facts alleged in counts IV and V against Squibb and SmithKline demonstrate on their face that plaintiff would never be entitled to recover. As such, it cannot be said that Squibb and SmithKline should have reasonably foreseen that their drugs would be dispensed without warnings by the physicians, that the patient would be discharged from the hospital, drink alcohol, drive a car, lose control of his car, hit a tree, and injure the passenger, Kirk, on the same day. This sequence would be triggered by an element that we have determined that the pharmaceutical companies did not have to foresee under the circumstances shown here: that the drugs would be dispensed without the warnings that the two companies provided to the physicians. As this court has noted, "[s]trict liability is not the equivalent of absolute liability. There are restrictions imposed upon it." (Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 37; see also Coney v. J. L. G. Industries, Inc. (1983), 97 Ill. 2d 104, 111.) The trial court properly dismissed the two strict liability counts against Squibb and SmithKline.

The pharmaceutical companies say that the trial court properly denied the plaintiff's oral request to file a fourth amended complaint. The plaintiff asks that we grant leave to amend under Rule 362 (87 Ill. 2d R. 362(f)). A trial court has broad discretion in determining whether to allow amendments to a complaint. (Deasey v. City of Chicago (1952), 412 Ill. 151, 156-57; Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 390.) The plaintiff's proposed amended complaint does not appear in the record; the plaintiff's failure to make it a part of the record waives his right to have this court review the trial court's denial of his motion. Teter v. Clemens (1986), 112 Ill. 2d 252, 260-61; Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill. 2d 1, 8.

Turning to the portions of the complaint charging Michael Reese, the plaintiff posits liability in counts I, IV, and V against the hospital on two theories: strict liability and negligence. Under the strict liability counts, the plaintiff alleges that the products -- the prescription drugs -- were made unreasonably dangerous through the hospital's alleged failure to warn the patient, McCarthy, of their possible adverse effects. The plaintiff correctly states that strict tort liability may be imposed upon sellers and those in the chain of distribution, as well as manufacturers, for their role in placing a defective product into the stream of commerce. (Crowe v. Public Building Com. (1978), 74 Ill. 2d 10, 13; Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443.) The plaintiff bases his strict liability count against the hospital on the hospital's role in the chain of distribution, "standing between the manufacturer and the doctor," and also as the supplier of the prescription drug to McCarthy. For the reasons discussed concerning the pharmaceutical companies, we believe there is no duty here to this nonpatient, nonuser of the product, and, as such, Kirk is not a plaintiff entitled to protection under strict liability principles. Too, in Dubin v. Michael Reese Hospital & Medical Center (1980), 83 Ill. 2d 277, and Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, this court held that a hospital ...

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