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Prince v. B.F. Ascher Company2/17/2004
Mandate Issued: 04/30/2004
__ P.3d __
On August 1, 1999, decedent Hubert A. Ballard died of acute propylhexedrine intoxication after intravenously injecting the extracted contents of a Benzedrex® nasal inhaler in order to experience a stimulative effect. Propylhexedrine is the active ingredient in Benzedrex®, an over-the counter nasal decongestant. At the time of his death, Ballard had been a habitual abuser of the propylhexedrine in Benzedrex® for well over twenty years. No other drugs were present in Ballard's system at the time of his death. Defendant/Appellee GlaxoSmithKline (GSK) manufactured Benzedrex® from 1949 to 1990. GSK sold the product rights to Defendant/Appellee Menley & James Laboratories, Inc. in 1990. Menley & James sold the rights to Defendant/Appellee B.F. Ascher Company, Inc. in 1998. Defendant/Appellee Dennison Laboratories, Inc. assembled the product for both Menley & James and B.F. Ascher. Ballard purchased his last inhaler at a pharmacy owned and operated by Defendant/Appellee Stewart & Wood Drug Co.
Sheila Prince, Ballard's daughter and administratrix of his estate, filed a wrongful death suit under negligence, failure to warn, breach of warranty, and products liability theories. She alleges Ballard's misuse of Benzedrex® was foreseeable because, as early as the 1970's, Appellees were aware - through medical literature, the public media, and direct complaints - of the potential for abuse of their product. Prince further argues that despite knowing their product was addictive and subject to abuse, Appellees continued to sell Benzedrex® in a container easily dismantled by hand. She contends Benzedrex® is a defective and unreasonably dangerous product due to its packaging, potential for abuse, toxicity, and insufficient warning label.
All five Appellees filed motions for summary judgment. The trial court granted each one. Prince appeals. Her points of error are: (1) summary judgment was improper given Ballard's foreseeable misuse of the Benzedrex® inhaler; (2) Appellees owed a duty to Ballard under a negligence theory; (3) a question of material fact exists as to whether the warning on the product label was sufficient; and (4) Appellee Dennison Laboratories is a proper party under a products liability theory even though it is a limited assembler, not a manufacturer.
Standard of Review
Whether the trial court's entry of summary judgment was proper is a question of law we review de novo. Manley v. Brown, 1999 OK 79, , 989 P.2d 448, 455. In a de novo review, we have plenary, independent, and non-deferential authority to determine whether the trial court erred in its application of the law and whether a dispute exists as to any genuine issue of material fact. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, , 859 P.2d 1081, 1084. Like the trial court, we examine the pleadings and summary judgment evidentiary materials submitted by the parties to determine if a genuine issue of material fact is in dispute. Carmichael v. Beller, 1996 OK 48, , 914 P.2d 1051, 1053. In so doing, we view the facts and all reasonable inferences arising therefrom in the light most favorable to the non-moving party. Id.
Facts
Benzedrex® is a nasal inhaler designed for the symptomatic treatment of nasal congestion resulting from head colds and hay fever. The federal Food and Drug Administration (FDA) has approved propylhexedrine for use as an active ingredient in topical nasal decongestants such as Benzedrex®. 21 C.F.R. §341.20(b)(9). It classifies Benzedrex® a nonnarcotic product that may be sold without a prescription. 21 C.F.R. §1308.22. The FDA has concluded propylhexedrine is safe in
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