In Re the Marriage (Now Dissolved) of: Sarah J. Kissner, n/k/a Sarah J. Koltveit, petitioner, Appellant, vs. Jeffrey Robert Kissner, Respondent.

This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

Christie Yennie, as Trustee for the Next of Kin

of David Yennie, Deceased,

Appellant,

vs.

Dickey Consumer Products, Inc.,

Respondent,

PDK Labs, Inc., et al.,

Defendants.

Affirmed

Dodge County

File No. C897590

Andrew P. Engebretson, 200 East Plato Boulevard, St. Paul, MN 55107; and

Arne D. Anderson, 308 Board of Trade Building, 301 West First Street, Duluth, MN 55802 (for appellant)

James P. Paciotti, Andresen, Haag, Paciotti and Butterworth, P.A., 1000 Alworth Building, Duluth, MN 55801 (for respondent)

            Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

LANSING, Judge

            Following David Yennie's death from cardiac arrest, Christie Yennie, as trustee for David Yennie's next of kin, brought this action against Dickey Consumer Products, Inc., alleging that the product Ephedrine Plus was defective and unreasonably dangerous due to inadequate instructions or warnings and that adequate instructions could have reduced or eliminated foreseeable risks of harm.  The district court granted summary judgment, finding that the evidence was insufficient to create a fact issue regarding causation.  We affirm.

            David Yennie (Yennie), age 28, collapsed while unloading hay bales at his parents' farm and died shortly thereafter.  Earlier in the day, his son had seen Yennie consume a handful of pills from a bottle of Ephedrine Plus.  His wife, Christie Yennie, had seen Yennie grab the bottle but did not know how many pills he took, although both she and his sister had at other times seen him take up to ten pills at once.  Christie estimated that Yennie took at least 200 to 300 ephedrine tablets per week.  Yennie had told his wife that he had been "doing ephedrine" for several years before they met in 1987.

Yennie had no history of asthma or bronchial conditions and had not been advised by a physician to take ephedrine.  According to his wife, the only time Yennie ever complained about shortness of breath was when he had been using ephedrine and performing hard labor.  He said he took ephedrine because he worked long hours and it helped him stay awake.  An autopsy report stated that Yennie died of sudden cardiac arrest due to probable disrhythmia and listed the cause of death as "excessive use of ephedrine combined with strenuous labor on a hot day."

            Ephedrine Plus, which was labeled as a bronchodilator and expectorant, contained the following warnings and instructions:

WARNINGS:  Do not use this product unless a diagnosis of asthma has been made by a physician. * * * In case of accidental overdose, seek professional assistance or contact a poison control center immediately! * * *

* * * *

DIRECTIONS FOR USE:  ADULTS:  One tablet every 4 hours.  Do not take more than 5 tablets in a 24 hour period, unless directed by a doctor.  Do not exceed recommended dose unless directed by a physician.

            On appeal from a summary judgment, this court reviews the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.  In re Estate of Palmen, 588 N.W.2d 493, 495 (Minn. 1999).  This court must view the evidence in the light most favorable to the nonmoving party.  Id.  But when there are no facts in the record to create a triable issue on an essential element of the nonmoving party's case, summary judgment is proper.  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

            Christie Yennie argues that because this is a strict-liability case, she is entitled to a presumption of a causal connection between Dickey's failure to provide adequate warnings on the Ephedrine Plus label and Yennie's death.  Specifically, she asserts she is entitled to a presumption that if an additional warning had been provided, Yennie would have read and heeded it.  Christie Yennie's argument is contrary to Minnesota law.  Under Minnesota law, to prevail on a failure-to-warn claim, a plaintiff must establish that the lack of an adequate warning caused plaintiff's injuries.  See J & W Enters., Inc. v. Economy Sales, Inc., 486 N.W.2d 179, 181 (Minn. App. 1992) (under "any theory of products liability, the plaintiff must show a causal link between the alleged defect and the injury")(quotation omitted); see also Marcon v. Kmart Corp., 573 N.W.2d 728, 731(Minn. App. 1998) (in a strict-liability failure-to-warn case, plaintiff must prove that the alleged "defect was the proximate cause of the injury sustained"), review denied (Minn. Apr. 14, 1998).

            In a failure-to-warn case, when a warning label is affixed to the product, "[a]bsent a reading of the warning, there is no causal link between the alleged defect and the injury."  J & W Enters., 486 N.W.2d at 181 (upholding summary judgment for manufacturer based on absence of evidence that user had read warning on fire extinguisher).  The record contains no evidence that Yennie read the label affixed to the bottle of Ephedrine Plus tablets.

            In addition to the absence of evidence that Yennie read the Ephedrine Plus warning label, his level of misuse of ephedrine was extreme.  The Ephedrine Plus label warned that the product was to be used only by persons who had been diagnosed with asthma by a physician and directed users to take one tablet every four hours, not to exceed five tablets in a 24-hour period unless directed by a doctor.  For more than ten years, Yennie, who had never been diagnosed with asthma, misused ephedrine at a level of up to ten times the recommended dosage.  Despite having experienced shortness of breath after using ephedrine, Yennie, if he did read the label, ignored the warning, "In case of accidental overdose, seek professional assistance or contact a poison control center immediately!"  Thus the record does not establish facts or support an inference that Yennie would have heeded a more detailed warning.

            In sum, there is no evidence that Yennie read the Ephedrine Plus label, and if he did, he completely disregarded its warnings and instructions.  The evidence was insufficient to provide a causal connection between the allegedly inadequate warning on Ephedrine Plus and Yennie's death.  The district court properly granted summary judgment on the ground that the causation evidence was insufficient to withstand summary judgment.

            In light of our holding that the district court properly granted summary judgment based on insufficient evidence on causation, we do not reach the issues relating to the existence of a duty to warn and the adequacy of the warning provided.

            Affirmed.