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Griffith v. Blatt8/15/2002
Argued and submitted January 9, 2001.
Plaintiff Patricia E. Griffith seeks review of a decision of the Court of Appeals that affirmed the trial court's summary judgment against plaintiff on her claims against defendants Rugby Laboratories, Inc. (Rugby) and Stout. Griffith v. Blatt, 158 Or App 204, 973 P2d 385 (1999). Plaintiff claimed that she was injured when she used a lotion, Lindane, that her physician had prescribed. Rugby manufactured the lotion and Stout, a pharmacist, filled the prescription. Plaintiff argued that neither her physician nor Stout had warned her that Lindane was toxic if used improperly. The Court of Appeals determined that plaintiff's claim against Rugby was not timely filed and that the "learned intermediary" doctrine protected Stout from liability. We discuss that doctrine in greater detail later in this opinion. We affirm the Court of Appeals' determination that the claim against Rugby was untimely, but conclude that the learned intermediary doctrine does not protect Stout from liability in this case. Therefore, we reverse the decision of the Court of Appeals and remand the case to the trial court for further proceedings.
Because the trial court dismissed plaintiff's action on summary judgment, ORCP 47, we view the evidence and all reasonable inferences that may be drawn from it in the light most favorable to plaintiff, the party opposing summary judgment. Jones v. General Motors Corp., 325 Or 404, 408, 939 P2d 608 (1997). The Court of Appeals applied that standard in summarizing the evidence as follows:
"On February 26, 1993, plaintiff visited Dr. Philip Blatt, seeking treatment for a skin condition. Blatt gave plaintiff a prescription for two ounces of Lindane, one percent lotion, instructing the pharmacist to fill the prescription and to type 'As directed' on the label. Plaintiff took that prescription to Stout, who filled the prescription, placing the lotion in a plain prescription bottle which bore generic 'For external use only' and 'Shake well' labels. In accordance with Blatt's instructions, Stout typed the notation 'As directed' on the prescription label and affixed that label to the bottle. The bottle bore no other instructions or warnings. There is no evidence that Stout gave plaintiff any verbal instructions or warnings concerning the lotion including, particularly, any warnings pertaining to frequency or duration of use.
"Plaintiff applied the lotion over her entire body once a day, after her daily shower for five or six days until she had used the entire bottle. After each application, plaintiff did not shower for the next 24 hours. Properly used, Lindane lotion should be applied no more than two times and should be washed off within 12 hours after any application.
"Within a week to two weeks after beginning to use the Lindane lotion, plaintiff began to suffer medical problems, including convulsions, dizziness, weight loss, hair loss, sleep disturbance, and cognitive dysfunction. On June 10, 1993, plaintiff watched a segment of the television program "Good Morning America," which featured a report about a child who had suffered convulsions after overexposure to Lindane lotion. Immediately after that program, plaintiff retrieved her empty bottle of Lindane lotion and told her husband, 'This is the same stuff.' In August 1993, plaintiff consulted with a physician, who diagnosed her symptoms to be the result of central nervous system toxicity due to overexposure to Lindane lotion." Griffith v. Blatt, 158 Or App 204, 207-09, 973 P2d 385 (1999).
On February 23, 1995, plaintiff filed claims for negligence against Stout, for medical malpractice against Dr. Blatt, and for strict liability against Reed &am
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