Whitley v. Cubberly

Annotate this Case

210 S.E.2d 289 (1974)

24 N.C. App. 204

Howard T. WHITLEY, Administrator of the Estate of Kimberly Lynn Whitley, Deceased, v. Dr. C. L. CUBBERLY, Jr., and Parke, Davis & Company, a Michigan Corporation.

No. 737SC710.

Court of Appeals of North Carolina.

December 18, 1974.

*291 Moore, Moore & Weaver by Thomas M. Moore and George A. Weaver, Wilson, for plaintiff appellant.

Battle, Winslow, Scott & Wiley by J. B. Scott, Rocky Mount, for defendant appellee Parke, Davis & Co.

PARKER, Judge.

The sole assignment of error challenges entry of the order granting Parke, Davis's motion for summary judgment. "Irrespective of who has the burden of proof at trial upon issues raised by the pleadings, upon a motion for summary judgment the burden is upon the party moving therefor to establish that there is no genuine issue of fact remaining for determination and that he is entitled to judgment as a matter of law." Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 51, 191 S.E.2d 683, 688 (1972). Thus, in the present case defendant Parke, Davis, as the party moving for summary judgment, had the burden of showing the absence of a genuine issue as to any material fact and that it was entitled to judgment as a matter of law. Plaintiff, as the party opposing the motion, did not have the burden of coming forward with evidentiary material in support of his claim until defendant Parke, Davis, as movant, produced evidence of the necessary certitude which negatives plaintiff's claim against it in its entirety. Tolbert v. Tea Co., 22 N.C.App. 491, 206 S.E.2d 816 (1974). "This is true because the burden to show that there is no genuine issue of material fact rests on the party moving for summary judgment, whether he or his opponent would at trial have the burden of proof on the issue concerned; and rests on him whether he is by it required to show the existence of non-existence of facts." 6 Moore's Federal Practice ¶ 56.15 [3], pp. 2342-43.

Furthermore, in passing upon a motion for summary judgment, all affidavits, depositions, answers to interrogatories and other material filed in support or opposition to the motion must be viewed in the light most favorable to the party opposing the motion, and such party is entitled to the benefit of all inferences in his favor which may be reasonably drawn from such material. United States v. Diebold, Inc., 369 U.S. 654, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962); Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972).

Applying the foregoing principles to the record before us, we find that Parke, Davis did come forward with uncontradicted evidentiary material to show that it was not negligent in certain of the respects alleged in the complaint. Specifically, the uncontradicted affidavit of Parke, Davis's Vice-President in charge of quality control and government regulations sets forth facts which negative the allegations in plaintiff's complaint that Parke, Davis was negligent in failing to test Chloromycetin (chloramphenicol) adequately, failing to label it adequately, improperly obtaining and retaining governmental permission to market it, or failing otherwise to comply with the provisions of the Federal Food, Drug and Cosmetic Act. However, we find the material presented in support of the motion inadequate to negative plaintiff's allegations that Parke, Davis was negligent in other respects. For example, viewing this material in the light most favorable to plaintiff and giving plaintiff the benefit of all reasonable inferences in his favor, and keeping in mind that the burden of carrying the motion rests upon Parke, Davis, we find the material insufficient to establish that there *292 is no genuine issue of fact in connection with plaintiff's allegations that Parke, Davis was negligent in improperly marketing and over-promoting Chloromycetin, in failing to heed warnings given to it about the dangerous properties of Chloromycetin, and in failing to make adequate warnings about the dangerous properties of the drug to the medical professon. That Parke, Davis may have fully complied with all applicable Federal laws in its marketing and labeling of Chloromycetin would not in itself free it of liability for harm caused by use of the drug if it were shown that such use and resulting harm was caused by the Company's negligent acts in overpromoting the drug, the dangerous properties of which it was aware or in the exercise of due care should have been aware. For example, even though all warnings required by Federal authorities may have been given, such warnings would be insufficient to exonerate Parke, Davis from all liability if over-promotion through a vigorous sales campaign should induce the medical profession in general, and in this case Dr. Cubberly in particular, to fail adequately to heed the warnings given. In the present case, Dr. Cubberly's deposition discloses that, despite his statement that he was familiar with the manufacturer's warnings, he was not "completely aware" that there should be periodic blood studies during treatment with the drug nor was he aware of the manufacturer's warning that "to facilitiate appropriate studies and observation during therapy, it is desirable that patients be hospitalized." Whether the doctor's lack of awareness was due to negligent over-promotion of the drug by Parke, Davis is not answered by the present record. All that is significant for present purposes is that the record does not so clearly establish that no genuine issue of fact exists in this regard that Parke, Davis is entitled to summary judgment as a matter of law. Only in exceptional negligence cases is summary judgment appropriate. "This is so because the rule of the prudent man (or other applicable standard of care) must be applied, and ordinarily the jury should apply it under appropriate instructions from the court." Page v. Sloan, supra, at 706, 190 S.E.2d at 194. We find that the movant here has failed to carry its burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Although, of course, each case must be decided on its own facts, we find support for our decision in the opinions in Stevens v. Parke, Davis & Co., 9 Cal. 3d 51, 107 Cal. Rptr. 45, 507 P.2d 653, (1973); Love v. Wolf, 226 Cal. App. 2d 378, 38 Cal. Rptr. 183 (1964); Lake v. Konstantinu, 189 So. 2d 171 (Fla.Dist.Ct.App. 1966); and Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971).

It may well be that upon a trial of the issues before a jury, when the burden will be upon the plaintiff to establish his case, plaintiff may be unable to come forward with evidence sufficient to establish that any negligence on the part of Parke, Davis was the proximate cause of the illness and death of his intestate. We hold only that on the present record it was error to enter summary judgment against him. The judgment of the trial court granting Parke, Davis's motion is

Reversed.

CAMPBELL, J., concurs.

BROCK, C. J., dissents.

BROCK, Chief Judge (dissenting).

I agree that movant has failed to establish that there is no genuine issue as to a material fact in connection with plaintiff's allegations that Parke, Davis was negligent in failing to heed warnings given to it about the dangerous properties of Chloromycetin, and in failing to give adequate warnings to the medical profession of the dangerous properties of the drug. Therefore, I would ordinarily concur in the result reached by the majority in reversing the summary judgment in favor of Parke, Davis.

*293 However, the majority opinion gives sanction to pleading a cause of action for "improperly marketing and overpromoting" Chloromycetin and requires movant to establish that no genuine issue as to a material fact exists with respect to such nebulous allegations. In so doing, the majority opinion seems to hold that allegations that Parke, Davis "improperly marketed and overpromoted" constitutes allegations of fact upon which relief can be granted. It seems to me that an allegation that defendant "improperly marketed and overpromoted" does not rise even to the dignity of notice pleading. Unless such "improper marketing and overpromoting" are alleged to be accomplished by some conduct amounting to fraud or deceit, or the result of some recognizable negligence, it does not allege a claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved as required by G.S. § 1A-1, Rule 8.