Opinion
No. 559311
August 12, 2003
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#155, #162)
Facts
The plaintiff, Ricky Nobles, Jr., filed an amended complaint on October 23, 2002, for the injuries he allegedly sustained while using the prescribed nasal spray rhinocort. Nobles brought this action against Astrazeneca LP (Astrazeneca) and Long Hill Road CVS, Inc. (CVS).
On February 10, 2003, CVS filed a motion for summary judgment which was denied by this court on April 7, 2003, for CVS's failure to appear. CVS subsequently appeared for argument on May 27, 2003 claiming that the date set for argument on its motion was May 27, 2003, and not April 7, 2003. The court will now rule on CVS's motion for summary judgment. CVS relies on its supporting memorandums, reply brief, and supporting exhibits that were filed in connection to this matter.
Astrazeneca filed a motion for summary judgment on March 3, 2003. On April 25, 2003, Astrazeneca filed a superseding motion for summary judgment asserting that Nobles' action is barred by the learned intermediary doctrine. In support of its motion, Astrazeneca submitted memorandum of law together with exhibits as well as, a reply brief and exhibits.
Nobles filed objections to Astrazeneca's motion and CVS's motion on May 22, 2003, and May 23, 2003, respectively. Both objections were accompanied with a memorandum of law in support of the objection and supporting exhibits.
Discussion
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Citation omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002).
In the present case, both Astrazeneca and CVS argue that Nobles' claims are barred by the learned intermediary doctrine. "The learned intermediary doctrine provides that adequate warnings to prescribing physicians obviate the need for manufacturers of prescription products to warn ultimate consumers directly. The doctrine is based on the principle that prescribing physicians act as learned intermediaries between a manufacturer and consumer and, therefore, stand in the best position to evaluate a patient's needs and assess [the] risks and benefits of a particular course of treatment." (Internal quotation marks omitted.) Vitanza v. Upjohn Co., 257 Conn. 365, 376, 778 A.2d 829 (2001). The drug manufacturer has the initial duty to warn prescribing physicians of the dangers associated with its product. Id., 382. Courts have recognized several exceptions to the learned intermediary doctrine which include incidences where the drug is advertised directly to the consumer or where the drug is over promoted. Id., 393.
Astrazeneca argues that the treating physician was adequately warned of the dangers associated with rhinocort by the package insert and, therefore, the learned intermediary doctrine applies relieving Astrazeneca from liability. Nobles argues that the warnings on the package insert were inadequate because of the format, small print and, lack of instruction on the proper use of the nasal spray. Nobles further argues that Astrazeneca advertised directly to the consumer and over promoted the drug to treating physicians therefore, the learned intermediary doctrine does not apply.
The court reviewed the numerous exhibits provided by each party which included the package insert and its numerous revisions during the time Nobles was using rhinocort. Upon close review of the insert the court finds that there are disputed issues of fact as to whether proper warning to the drug and its proper usage where provided to the treating physician. There are also disputed issues of fact as to whether Astrazeneca over promoted the drug or directly advertised to the consumer. Accordingly, Astrazeneca's motion for summary judgment is denied.
Now the court turns to the issue of whether the learned intermediary doctrine insulates CVS from liability. In its moving papers, CVS argues that it does not owe a duty to warn its customers of all the possible side effects of a prescribed medication because the prescribing physician is in a better position to do so, therefore, the learned intermediary doctrine shields CVS from liability. Nobles objects and argues that General Statutes § 20-620 (d) imposes an affirmative duty upon the pharmacist to discuss and counsel the patient on the prescribed medication.
"The existence of a duty is a question of law." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171, 544 A.2d 1185 (1988). The court finds that the pharmacy does not owe a duty to warn a patient of the side effects associated with a drug prescribed by a treating physician. See Shaw v. Caldor, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 940135645 (February 23, 1995, Lewis, J.) ( 13 Conn.L.Rptr. 524); Carafeno v. Gordon, Superior Court, judicial district of New Haven, Docket No. CV 0343687 (May 6, 1993, Thompson, J.) ( 9 Conn.L.Rptr. 88) (pharmacy does not owe a duty to warn of the side effects of a medication absent special circumstances). The treating physician is in a better position to warn such patient. Furthermore, General Statutes § 20-620 (d) does not apply because it is undisputed that Nobles does not receive medicaid. Accordingly, CVS's motion for summary judgment is granted.
"The discussion and counseling offered in accordance with subsection (c) of this section shall include information deemed significant by the pharmacist based upon the findings of the review conducted in accordance with subsection (b) of this section, including (1) the name and description of the drug; (2) dosage form, dosage, route of administration and duration of drug therapy; (3) special directions and precautions for preparation, administration and use by the patient; (4) common severe side or adverse effects or interactions and therapeutic contraindications or precautions which the pharmacist deems relevant; (5) techniques for self-monitoring drug therapy; (6) proper storage; (7) prescription refill information; and (8) action to be taken in the event of a missed dose or adverse reaction." General Statutes § 20-620 (d); pharmacists duties towards medicaid recipients.
D. Michael Hurley, JTR