Prince v. B.F. Ascher Company2/17/2004
ite the fact that it is available in small amounts on an over-the-counter basis as part of the approved preparation in Vicks nasal inhalers). Accordingly, there is no substantial controversy that the product Benzedrex® used as a nasal inhaler did not cause Ballard's death; the extracted propylhexedrine used as a stimulant did.
Turning to the second prong of the products liability analysis, Oklahoma law recognizes a consumer's subsequent material alteration precludes recovery because the product cannot be said to have been defective when it left the manufacturer's control. See Dutsch v. Sea Ray Boats, Inc., 1992 OK 155, , 845 P.2d 187, 191 (refusing to hold manufacturer liable where subsequent modifications of boat caused injuries); Clark v. Continental Tank Co., 1987 OK 93, , 744 P.2d 949, 954 (affirming jury verdict for manufacturer where heater/treater was equipped with safety devices when it left manufacturer's control but devices were later removed in the field causing flash fire); Stuckey v. Young Exploration Co., 1978 OK 128, , 586 P.2d 726, 731 (affirming summary judgment in favor of manufacturer where cab and chassis of truck had twice undergone substantial modification after leaving manufacturer's control); Kimbrell v. Zenith Radio Corp., 1976 OK 134, , 11, 13, 555 P.2d 590, 592 (affirming trial court's directed verdict for manufacturer of television set where crimped wire that caused subsequent fire could have occurred during repair of set years after purchase). That Ballard broke apart Benzedrex® inhalers after purchasing them in order to extract the active ingredient to obtain a stimulant effect is undisputed. Such a subsequent material alteration precludes liability on the part of the manufacturer or seller.
We also may deem a product defective if a manufacturer fails to give directions or warnings on the container as to its use. See Smith v. U.S. Gypsum Co., 1980 OK 33, , 612 P.2d 251, 253. "If the warnings are unclear or inadequate to apprise the consumer of the inherent danger, the product may be defective, particularly where a manufacturer has reason to anticipate danger may result from the use of his product." Steele v. Daisy Mfg. Co., 1987 OK CIV APP 64, , 743 P.2d 1107, 1109. Manufacturers, however, are not required to foresee that consumers will fail to read the product's warnings and then use the product in a manner that the instructions expressly warn against. Hutchins v. Silicone Specialties, Inc., 1993 OK 70, , 881 P.2d 64, 67; see also Restatement (Second) of Torts §402A, cmt. j (1965). "Only where the seller has reason to anticipate that danger may result from a particular use, may he be required to give adequate warning of the danger, and a product sold without such warning is in a defective condition." Duane v. Oklahoma Gas & Elec. Co., 1992 OK 97, , 833 P.2d 284, 286. "If a plaintiff is using the product for some purpose for which it was not intended and is consequently injured, he should not recover." Kirkland, , 521 P.2d at 1366.
"The plaintiff must establish that the failure to warn was a proximate, producing cause of the injuries received." Duane, , 833 P.2d at 286. "Where the danger or potentiality of danger is known or should be known to the user, the duty to warn does not attach." Id., , 833 P.2d at 287; see also, Atkins v. Arlands Dept. Store of Norman, Inc., 1974 OK 62, 522 P.2d 1020 (holding although it may be foreseeable that a child may throw a lawn dart at another person, the product was not designed with such misuse in mind, thus alleged design defect was not the proximate cause of the injury and manufacturer not liable).
That Ballard knew of the danger posed by abusing the propylhexedrine in Benzedrex® i
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