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01/11/88 Sylvia Leesley, v. James West

January 11, 1988

SYLVIA LEESLEY, PLAINTIFF-APPELLEE

v.

JAMES WEST, DEFENDANT (VILLA PARK PHARMACY, INC., D/B/A VILLA PARK PHARMACY AND LIQUORS, ET AL., DEFENDANTS-APPELLANTS)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

518 N.E.2d 758, 165 Ill. App. 3d 135, 116 Ill. Dec. 136 1988.IL.17

Appeal from the Circuit Court of Du Page County; the Hon. Helen C. Kinney, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

This is an interlocutory appeal by permission pursuant to Supreme Court Rule 308. (107 Ill. 2d R. 308.) Plaintiff, Sylvia Leesley, filed suit against Dr. James West, Pfizer Inc. (Pfizer), and Villa Park Pharmacy, Inc. (Villa Park), for damages resulting from severe gastrointestinal bleeding caused by the prescription drug Feldene. Dr. West prescribed the drug, which is manufactured by Pfizer, to treat plaintiff's osteoarthritis. Villa Park filled the prescription. Five of the six counts contained in plaintiff's third amended complaint (counts II through VI) were directed against Villa Park and/or Pfizer, the appellants here, based on their failure to provide plaintiff with information or warnings regarding the potential side effects of the drug. Counts II and V are strict liability claims alleging that the product was unreasonably dangerous due to the absence of adequate warnings. Counts III and VI allege that the defendants negligently failed to warn the plaintiff. Count IV alleges that the defendants breached an implied warranty of fitness for a particular purpose by failing to disclose the drug's dangerous side effects. Count I is directed against Dr. West, who is not involved in this appeal.

The relevant facts are undisputed. Peptic ulceration and gastrointestinal bleeding are known, but infrequent, side effects of Feldene. Plaintiff does not allege that Pfizer failed to adequately disclose the drug's potential hazards to the medical community in general, but that Villa Park and Pfizer failed to directly warn the plaintiff or to ensure that the relevant warnings reached the ultimate consumers of the drug. Villa Park and Pfizer filed a motion for summary judgment, claiming that pharmacists and drug manufacturers have no duty to directly warn the consumer about the potential hazards of a prescription drug. The trial court granted defendants' motion with respect to the warranty claim (count IV), but denied the motion as to all other counts. It then certified that immediate review of the following questions pursuant to Rule 308 (107 Ill. 2d R. 308) may materially advance the ultimate termination of this litigation:

"(a) Whether defendant pharmaceutical manufacturer, PFIZER, has a duty to warn prescription drug consumer of known risks and side effects of Feldene by providing written information in any adequate form and exerting reasonable effort to have this information conveyed to the consumer in any reasonable manner.

(b) Whether defendant pharmacist, VILLA PARK PHARMACY, had a duty to pass on to the consumer a copy of written information on known risks and side effects provided by the manufacturer of the drug Feldene."

Defendants claim that the "learned intermediary" doctrine places the responsibility on physicians alone to warn patients about the potential side effects of prescription drugs. Plaintiff disputes both the existence and validity of the doctrine.

After the trial court entered its order below, our supreme court had occasion to consider the "learned intermediary" doctrine in Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507. The plaintiff in Kirk was a passenger injured in a car crash, which plaintiff claimed was caused by his driver's incapacitation due to the ingestion of certain prescribed medications. (117 Ill. 2d at 514.) Plaintiff sued the hospital which administered the drugs and the physicians who prescribed them, claiming that they had negligently failed to warn the driver of the drugs' dangerous side effects. He also sued the hospital and the manufacturers of the drugs on a strict liability theory. (117 Ill. 2d at 515.) The Kirk court stated that a prescription drug may be deemed unreasonably dangerous, subjecting the manufacturer or supplier to strict liability, if it is not accompanied by an adequate warning. (117 Ill. 2d at 517, citing Restatement (Second) of Torts § 402 A, comment k (1965).) The court described the "learned intermediary" doctrine as follows:

"The rule . . . 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. [Citations.]" (Kirk, 117 Ill. 2d at 517-18.)

The court then quoted language from Stone v. Smith, Kline & French Laboratories (11th Cir. 1984), 731 F.2d 1575, in which that court explained that, because of the complexity of prescription drugs and the varied effects they have on users, the doctrine requires manufacturers of prescription drugs to warn only prescribing physicians of the inherent dangers of their products, providing an understandable exception from the usual rule that manufacturers must provide appropriate warnings to all foreseeable consumers. Kirk, 117 Ill. 2d at 518-19, citing Stone v. Smith, Kline & French Laboratories (11th Cir. 1984), 731 F.2d 1575, and Reyes v. Wyeth Laboratories (5th Cir. 1974), 498 F.2d 1264.

The Kirk court stated that drug manufacturers have a variety of available methods to communicate warnings to the medical profession. ...


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