that used patches can cause hypoventilation. Nor do the warnings indicate that hypoventilation can cause death.
In 1992, three adults died after sucking or chewing on Duragesic patches, in an apparent effort to get "high." Defendants were aware of this fact at the time Duragesic was prescribed for Mr. Erony.
B. Mr. Erony's Use of Duragesic
Mr. Erony suffers from several medical ailments, including Crohn's disease, pancreatitis, a partially removed stomach, and ulcer disease. As a result of these conditions, Mr. Erony suffers from severe, chronic pain. In search of an adequate painkiller, in March 1993 Dr. Maurice Beer, Mr. Erony's internist, referred Mr. Erony to Dr. Marcus at the New York pain Clinic. Dr. Marcus prescribed Duragesic.
Because of Mr. Erony's dependency on narcotics, his dosage of Duragesic increased rapidly. From March until May 1993, Mr. Erony's dosage increased from 50 micrograms per hour to 275 micrograms per hour. To obtain his required dosage, Mr. Erony wore three Duragesic patches at a time. Mr. Erony was required to change the patches every 72 hours.
Neither Dr. Marcus nor Dr. Beer reviewed the package insert or the instruction pamphlet with Mr. Erony. Before he first used Duragesic, however, Mr. Erony reviewed both documents. In fact, at his deposition Mr. Erony testified to understanding that Duragesic should be flushed down the toilet and kept away from children. Nevertheless, Mr. Erony chose not to flush the used patches down the toilet because they were "too bulky." Instead, he disposed of the used patches by throwing them in the garbage. Mr. Erony also testified that he read the warnings concerning hypoventilation.
C. Alex Erony
Alex was born in 1979. His parents married and divorced twice, the final separation occurring in 1990. At that time, Ms. Dellacorte, Alex's mother, moved to Hawaii. Alex shuttled between Hawaii and New York, primarily receiving his schooling through a home school program. Ultimately, Alex decided that he would prefer to live in New York. Thus, in March 1993, Alex returned to New York to live with Mr. Erony.
Shortly thereafter, Mr. Erony began using Duragesic patches. Mr. Erony testified at his deposition that he informed Alex that the patches contained a narcotic similar to morphine. Mr. Erony further testified that Alex was familiar with morphine because Mr. Erony explained all his medications to Alex. Mr. Erony found it difficult to apply and remove the Duragesic patches by himself; therefore, he asked Alex to help him with this process. After removing the patches, Mr. Erony would either throw them in the trash himself or he would have Alex dispose of the used patches.
D. Alex's Death
On May 23, 1993, Mr. Erony asked Alex to help him change his Duragesic patch. At approximately 11:30 a.m., after the patches were changed, Mr. Erony gave Alex the used patches to throw away. Although Alex remained in the apartment, Mr. Erony does not know what happened during the next hour. At approximately 12:45 p.m., Alex sat in a chair in the living room and began watching a video. At 1:00 p.m., Mr. Erony heard Alex make a gasping noise. Mr. Erony approached Alex and found the Duragesic patches sticking out of Alex's mouth. Alex's face had turned blue and he was not breathing. Mr. Erony pulled the patches out of Alex's mouth and attempted CPR. According to Mr. Erony, Alex resumed breathing and his color returned. However, Alex remained unconscious.
At this point, Mr. Erony did not call the police or 911 to obtain medical attention for Alex. Instead, Mr. Erony threw the patches that he retrieved from Alex's mouth into a trash chute outside of his apartment. Mr. Erony explained in his deposition testimony that he threw the patches away because he
"just wanted to get [the patches] out of the house. Frankly, I didn't want Alex to get in trouble. I didn't think this was a life threatening situation, and I didn't want any trouble or anything. I thought he would recover, and I just wanted them out. I didn't want anything laying around of this incident."