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KRASNOPOLSKY v. WARNER-LAMBERT CO.

July 13, 1992

ARTHUR KRASNOPOLSKY and ELAINE KRASNOPOLSKY, Plaintiffs, against WARNER-LAMBERT COMPANY, Defendant.


The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge.

 The plaintiffs claim that Arthur Krasnopolsky's medically supervised ingestion of the drug Meclomen, an anti-inflammatory medication manufactured by the defendant Warner-Lambert Company, over a three-year period, caused him to suffer a kidney ailment known as "nephrotic syndrome". The plaintiffs seek damages from Warner-Lambert Company on theories of negligence, strict liability and breach of warranty.

 The defendant Warner-Lambert Company now moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment dismissing the Complaint.

 BACKGROUND

 In October 1982, plaintiff Arthur Krasnopolsky visited the Veterans Administration's Ryerson Street Medical Clinic for treatment of pain in his left ankle. The treating physician, Dr. William McLaughlin, made a diagnosis of osteoarthritis. In December 1982, Dr. McLaughlin prescribed Meclomen, a non-steroidal anti-inflammatory drug available by prescription only and manufactured by the defendant Warner-Lambert Company ("Warner"), which Mr. Krasnopolsky ingested through December 1985. In January 1986, Mr. Krasnopolsky was diagnosed by another doctor, Dr. Donatelli, as suffering from nephrotic syndrome, a renal ailment which causes a spilling of protein into the urine. At the time he prescribed Meclomen to Mr. Krasnopolsky, Dr. McLaughlin did not inform him that kidney problems were a possible side effect of Meclomen.

 The plaintiffs (collectively "the Krasnopolskys") content that Mr. Krasnopolsky developed nephrotic syndrome as a result of his taking Meclomen. Mrs. Krasnopolsky seeks recovery for loss of the consortium of her husband. The Krasnopolskys allege that Warner was negligent in the manufacture, sale, distribution, research, warnings and investigation of Meclomen. They further allege that Warner is also liable under theories of breach of warranty and strict liability. With regard to their strict liability cause of action, the Krasnopolskys claim that Meclomen was "unreasonably dangerous" during the period Mr. Krasnopolsky used it.

 JURISDICTION

 The Krasnopolskys are citizens of the State of New York. Warner Lambert is a Delaware corporation with its principal place of business in Morris Plains, New Jersey. The amount in controversy exceeds $ 50,000. Jurisdiction based upon diversity pursuant to 28 U.S.C. § 1332 is proper.

 PROCEDURAL SETTING

 Warner moves for summary judgment dismissing the Complaint. Warner contends that under New York State law it cannot be liable under any claim of inadequate warnings due to the "learned intermediary" doctrine and the lack of any "failure to warn" as a proximate cause of the alleged injuries sustained by the plaintiffs. Specifically, Warner maintains that Dr. McLaughlin, as the "learned intermediary", was provided with adequate warnings through the Meclomen package insert, medical journals and other media. Warner also asserts that the Krasnopolskys have failed to provide any evidence to substantiate any of their other claims, which arise under negligence and breach of warranty theories.

 In opposition to Warner's motion, the Krasnopolskys claim that the "learned intermediary" doctrine is not applicable in this case, as they contend that Dr. McLaughlin was not familiar enough with Mr. Krasnopolsky so as to constitute a "learned intermediary". They further contend that Dr. McLaughlin's treatment of Mr. Krasnopolsky was a "crap shoot". (Plaintiff's brief at p. 10.) The Krasnopolskys also contend that the learned intermediary doctrine does not apply because the warning Warner gave to Dr. McLaughlin was inadequate.

 In support of their claim that Warner was negligent in the testing and investigation of Meclomen, the Krasnopolskys submit copies of the relevant pages of the Physicians Desk Reference ("PDR") from 1982 and 1985, which do not list nephrotic syndrome as a side effect of Meclomen. However, these PDR entries do list "renal failure" as one of Meclomen's side effects. The Krasnopolskys further submit copies of the relevant pages from the 1987 PDR, which does list nephrotic ...


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