 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Allberry v. Parkmor Drug9/16/2005
Case Summary
Appellant-Plaintiff Albert Allberry ("Allberry") appeals the trial court's grant of summary judgment in favor of Appellee-Defendant, Parkmor Drug, Inc. d/b/a Park Pharmacy ("Parkmor"). We affirm.
Issue
Allberry raises two issues on appeal, which we consolidate and restate as whether Parkmor owed a duty to Allberry to either warn him of the potential side effects associated with a particular prescription drug or, in the alternative, provide Allberry with the manufacturer's product information.
Facts and Procedural History
On or before June 1, 2002, Allberry purchased the prescription drug Caverject- which is generally used to treat impotence-from Parkmor. At the time, Parkmor did not give Allberry "any product information" from the drug's manufacturer or any "drug information, leaflets, pamphlets." Appellant's App. at 19. In addition, Parkmor did not warn Allberry about the adverse side effects associated with the use of Caverject. In particular, Parkmor did not advise Allberry to seek medical attention if, after using the drug, he had an erection for more than four hours.
On June 1, 2002, after injecting Caverject into his penis, Allberry experienced a "severely painful erection which lasted for almost 72 hours." Id. On June 2, 2002, Allberry had to undergo surgery to reduce the erection. After his surgery and upon inquiry to Parkmor, Allberry's wife received the "patient information leaflet," which contains the following, pertinent information: "The erection should last about one hour. If an erection lasts more than 4 hours, seek immediate medical attention. If you notice other effects not listed above, contact your doctor or pharmacist." Id. at 23. As a result of the incident, Allberry developed "priapism and later became impotent." Id. at 20.
On July 28, 2004, Allberry filed an amended complaint against Parkmor, alleging, in part, that the pharmacy had failed to provide him with any warnings regarding the adverse side effects of the prescription drug Caverject. On August 19, 2003, Parkmor filed its second motion to dismiss, which the trial court treated as a motion for summary judgment. On February 9, 2004, the trial court granted summary judgment to Parkmor with respect to Allberry's failure to warn claim. Subsequently, Allberry agreed to dismiss his remaining claim against Parkmor-i.e., that Parkmor had improperly filled his prescription-and the trial court's February 9th order became a final appealable order. Allberry now appeals.
Discussion and Decision
I. Summary Judgment Standard of Review
On review of a trial court's decision to grant or deny summary judgment, we apply the same standard as the trial court: we must decide whether there is a genuine issue of material fact that precludes summary judgment and whether the moving party is entitled to judgment as a matter of law. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind. 1999). Once the moving party has sustained its initial burden of proving the absence of a genuine issue of material fact and the appropriateness of judgment as a matter of law, the party opposing summary judgment must respond by designating specific facts establishing a genuine issue for trial. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992). We may consider only those portions of the pleadings, depositions, and any other matters specifically designated to the trial court by the parties for purposes of the motion for summary judgment. Ind. Trial Rule 56(C), (H). Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmoving party. Co
Page 1 2 3 Indiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|