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Prince v. B.F. Ascher Company2/17/2004
d had not been to a doctor once during the ten-year period prior to his fatal overdose and was never diagnosed with any affliction attributable to propylhexedrine abuse.
Prince's expert conceded Ballard's injection of the propylhexedrine solution was an abnormal, aberrant use of Benzedrex®. He further declared no scientific evidence exists to show the inhaler is addictive or can cause physical harm when used as directed by the product labeling. Finally, Prince's expert testified that when Ballard would break apart a Benzedrex® inhaler, remove the cotton pledget, and use water and a needle to extract the propylhexedrine, the solution he created was no longer Benzedrex®.
The evidence further shows those members of Ballard's family who were aware of his abuse repeatedly told Ballard his behavior could be harmful. Ballard himself acknowledged to his step-son, a fellow propylhexedrine abuser, that if Ballard did not end his misuse of the drug it could kill him. Ballard's step-son testified at deposition that both he and Ballard were aware their misuse of Benzedrex® was wrong. Prince admitted " he extraction of the propylhexedrine from the inhaler is a misuse of the inhaler." Ballard's knowledge in the years prior to his death of risks associated with his propylhexedrine abuse is thus without question.
Products Liability
Oklahoma adopted the theory of manufacturers' products liability in Kirkland v. General Motors Corp., 1974 OK 52, 521 P.2d 1353. To maintain a products liability action, a plaintiff must prove: (1) the product was the cause of the injury ; (2) the defect existed in the product at the time it left the manufacturer's possession and control (if the action is against the manufacturer) or at the time of sale for public use (if the action is against the retailer or supplier); and (3) the defect made the article "unreasonably dangerous" to plaintiff or his property, meaning dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases the product with the ordinary knowledge common to the community as to its characteristics. Id., , 29-31, 521 P.2d at 1362-63. The burden on the plaintiff in a products liability action is "a large and heavy one. . . . for he must prove that his injury has been caused not necessarily by the negligence of the Defendant but by reason of a defect 'built in' and existing at the time of injury." Id., , 521 P.2d at 1364.
The first question we must address is whether there is a substantial controversy as to whether Benzedrex® caused Ballard's death. We find there is not. An extracted ingredient is not the legal equivalent of the parent product. As Prince's expert acknowledged, the substance Ballard injected was not Benzedrex®, but a solution Ballard created from the extracted active ingredient in Benzedrex®: propylhexedrine. See e.g., United States v. Youngblood, 949 F.2d 1065, 1066 (10th Cir. 1991) (holding under Oklahoma law that methamphetamine remains a Schedule II controlled substance even though the FDA has approved for over-the-counter sale both Rynal and Vicks nasal inhalers, which contain a combination of ingredients including diluted methamphetamine isomers); United States v. Viernes, 763 F. Supp. 1068 (D.C. Hawaii, 1991) (holding government decriminalization of desoxyephedrine when used in limited quantities and in concert with other ingredients in Vicks Inhalers does not imply decriminalization of the drug when not mixed into a Vicks Inhaler; in other words, although desoxyephedrine is a methamphetamine, it does not follow that desoxyphedrine is Vicks Inhaler); State v. Erban, 429 N.W.2d 1065, 1066 (N.D. 1988) (holding desoxyephedrine to be a controlled substance desp
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