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Kennedy v. Streibel12/31/2003
Rendered on the 31st day of December, 2003.
. This appeal arises from claims for damages brought against Dr. Mark Striebel and Merck & Co., Inc. (Merck), for the death of Glynda Kennedy (Glynda). At the time of her death, Glynda was the wife of Appellant, Jon Kennedy (Jon). Glynda died in the early morning hours of September 7, 2000, and the coroner attributed her death to an adverse reaction to VIOXX(TM). VIOXX(TM) is the trade name for rofecoxib, a nonsteriodal anti-inflammatory drug manufactured by Merck.
. The complaint alleged that Dr. Striebel had committed medical malpractice by failing to warn Glynda of risks associated with VIOXX(TM). Subsequently, Jon filed an amended complaint, adding Merck as a defendant, and making product liability claims against Merck, including claims for a manufacturing defect, a design defect, and failure to warn.
. Prior to trial, Jon filed a motion for summary judgment, asking the court to find that he had established a breach of duty as to Dr. Striebel, and proximate cause as to both Dr. Striebel and Marck. The breach of duty claim was based on the undisputed fact that Dr. Striebel gave Glynda free samples of VIOXX(TM), but did not give her a Merck product circular that contained various warnings about the drug. After considering the facts and law, the trial court concluded that Dr. Striebel had breached a duty of care to Glynda, and was negligent per se.
. However, the court denied the proximate cause portion of the summary judgment motion, due to the presence of genuine issues of fact. In particular, the court relied on an affidavit from Merck's expert, who stated that there was insufficient evidence to conclude that Glynda's death was due to an adverse reaction to VIOXX(TM).
. Subsequently, the court granted Merck's cross-motion for summary judgment. The court first found that Merck had satisfied its duty to warn Glynda of adverse drug reactions by informing Dr. Striebel of risks associated with the drug. The court also found no issues of fact concerning a design defect. Finally, the court noted that Jon had elected not to pursue the manufacturing defect claim. Following a Civ. R. 54(B) certification, we affirmed the summary judgment in Merck's favor. See Kennedy v. Merck & Co., Inc., Montgomery App. No. 19591, 2003-Ohio-3774.
. In the meantime, the remaining claims were tried to a jury, which unanimously found that Dr. Striebel's failure to provide the manufacturer's information sheets with the VIOXX(TM) samples was not a proximate cause of Glynda's death. As a result, judgment was granted in Dr. Striebel's favor. Jon now appeals, raising as a single assignment of error, that " he trial court erred in denying summary judgment in Jon Kennedy's favor establishing that the heeding presumption applied to his claim as a matter of law."
. After considering the record and applicable law, we find the assignment of error without merit. Accordingly, the trial court judgment will be affirmed.
I.
. Before addressing the assignment of error, we will briefly outline the background facts of this case. At the time of her death, Glynda Kennedy was 52 years old and had been married to Jon for more than twenty years. Glynda worked at RTA as a bus driver for most of her married life, and suffered from back pain when she drove the buses. During the 1980's, Glynda used over-the-counter medication. She first saw Dr. Striebel in 1991, for complaints of back pain. Multiple approaches were used to treat the pain, including medication, chiropractic treatment, physical therapy, and a TENS unit. However, nothing worked. A specialist thought Glynda had fibrom
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