Wolfgruber v. Upjohn Co., 417 N.E.2d 1002 (NY 1980). · Go Syfert
Search
Wolfgruber v. Upjohn Co., 417 N.E.2d 1002 (NY 1980). Cases Citing This Book View Copy Cite
180 citation events (48 in the last 25 years) across 15 distinct courts.
Strongest positive: Davis v. South Nassau Communities Hospital (ny, 2015-12-16)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) Davis v. South Nassau Communities Hospital (2×)
NY · 2015 · confidence medium
It is already the function of a physician to advise the patient of the risks and possible side effects of prescribed medication (see Wolfgruber v Upjohn Co., 52 NY2d 768, 770 [1980], affg 72 AD2d 59, 61 [4th Dept 1979] [“Since nonmedical consumers are legally precluded from ‘self-prescribing’ prescription drugs, the physician's function is to evaluate a patient's needs, assess the risks and 894, 193 Cal Rptr 733 [Ct App 4th Dist 1983] [observing, in the context of concluding that “liability may be imposed against two physicians for negligently failing to warn their patient of the fores…
discussed Cited "see" Abrams v. Bute
N.Y. App. Div. · 2016 · signal: see · confidence high
The manufacture and sale of prescription drugs is nevertheless “fully justified, notwithstanding the unavoidable high degree of risk which they involve,” since they may be used to treat medical conditions that pose an even greater danger to the consumer’s well-being (Restatement [Second] of Torts § 402A, Comment k; see Wolfgruber v Upjohn Co., 72 AD2d 59, 61 [1979], affd for reasons stated below 52 NY2d 768 [1980]).
examined Cited "see" Tompkins v. R.J. Reynolds Tobacco Co. (3×)
N.D.N.Y. · 2000 · signal: see · confidence high
See Fane v. Zimmer, Inc., 927 F.2d 124, 130 (2d Cir.1991) (citing Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 62 , 423 N.Y.S.2d 95 (4th Dep’t 1979), aff'd, 52 N.Y.2d 768 , 436 N.Y.S.2d 614 , 417 N.E.2d 1002 (1980)).
discussed Cited "see" McDonnell v. Chelsea Manufacturers, Inc.
N.Y. App. Div. · 1999 · signal: see · confidence high
This duty may be fulfilled by giving detailed, adequate warnings to the prescribing physician, who acts as an “informed intermediary” between the manufacturer and a patient (Martin v Hacker, 83 NY2d 1, 9 , supra; see, Wolfgruber v Upjohn Co., 72 AD2d 59, 61 , affd 52 NY2d 768 ).
discussed Cited "see" Alessandrini v. Weyerhauser Co.
N.Y. App. Div. · 1994 · signal: see · confidence high
Although the adequacy of a warning generally is a question of fact, "in a proper case the court can decide as a matter of law that there is no duty to warn or that the duty has been discharged as a matter of law” (Lancaster Silo & Block Co. v Northern Propane Gas Co., 75 AD2d 55, 65 ; see, Wolfgruber v Upjohn Co., 72 AD2d 59, 62 , affd 52 NY2d 768 ; Biss v Tenneco, Inc., 64 AD2d 204 , lv denied 46 NY2d 711 ).
examined Cited "see" Sciurca v. Chrysler Motor Corp. (3×)
E.D.N.Y · 1989 · signal: see · confidence high
See Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 61-62 , 423 N.Y.S.2d 95, 97 (4th Dep’t 1979), aff'd, 52 N.Y.2d 768 , 417 N.E.2d 1002 , 436 N.Y.S. 2d 614 (1980).
examined Cited "see" Jones by Jones v. Lederle Laboratories (3×)
E.D.N.Y · 1988 · signal: see · confidence high
See Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 61-62 , 423 N.Y.S.2d 95, 97 (4th Dep’t 1979), aff'd, 52 N.Y.2d 768 , 417 N.E.2d 1002 , 436 N.Y.S.2d 614 (1980).
examined Cited "see, e.g." McDowell v. Eli Lilly & Co. (3×)
S.D.N.Y. · 2014 · signal: see also · confidence low
Martin, 607 N.Y.S.2d 598 , 628 N.E.2d at 1311 ; see also Wolfgruber v. Upjohn Co., 72 A.D.2d 59 , 423 N.Y.S.2d 95, 96 (1979) aff'd, 52 N.Y.2d 768 , 436 N.Y.S.2d 614 , 417 N.E.2d 1002 (N.Y.1980); Ames v. Apothecon, Inc., 431 F.Supp.2d 566, 573 (D.Md.2006) (physicians “are presumed to have considerable medical training as well as the ability to access the medical literature if they re quire additional information”).
examined Cited "see, e.g." Maiorana v. National Gypsum Co. (3×)
S.D.N.Y. · 1993 · signal: see, e.g. · confidence low
See, e.g., Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 62-63 , 423 N.Y.S.2d 95, 97-98 (1979) (prescribing physician should warn patient of product’s dangers), aff'd, 52 N.Y.2d 768 , 436 N.Y.S.2d 614 , 417 N.E.2d 1002 (1980); Rivers v. AT & T Technologies, Inc., 147 Misc.2d 366, 372 , 554 N.Y.S.2d 401, 405 (1990) (bulk chemical manufacturer relieved of liability where ultimate user was “too remote in the chain of distribution” and manufacturer “provided extensive warnings to its immediate distributees”); Goodbar v. Whitehead Bros., 591 F.Supp. 552 (W.D.Va.1984) (silica sand suppliers had …
examined Cited "see, e.g." In Re Joint Eastern & Southern Dist. Asbestos Lit. (3×)
S.D.N.Y. · 1993 · signal: see, e.g. · confidence low
See, e.g., Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 62-63 , 423 N.Y.S.2d 95, 97-98 (1979) (prescribing physician should warn patient of product's dangers), aff'd, 52 N.Y.2d 768 , 436 N.Y.S.2d 614 , 417 N.E.2d 1002 (1980); Rivers v. AT & T Technologies, Inc., 147 Misc.2d 366, 372 , 554 N.Y.S.2d 401, 405 (1990) (bulk chemical manufacturer relieved of liability where ultimate user was "too remote in the chain of distribution" and manufacturer "provided extensive warnings to its immediate distributees"); Goodbar v. Whitehead Bros., 591 F.Supp. 552 (W.D.Va.1984) (silica sand suppliers had no possibi…
examined Cited "see, e.g." In Re BROOKLYN NAVY YARD ASBESTOS LITIGATION (Joint Eastern and Southern District Asbestos Litigation) (3×)
2d Cir. · 1992 · signal: see, e.g. · confidence low
See, e.g., Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 62-63 , 423 N.Y.S.2d 95, 97-98 (1979) (applying responsible intermediary theory to relieve drug manufacturer of liability where the prescribing physician should have warned the user of the product’s dangers), aff'd, 52 N.Y.2d 768, 436 N.Y.S.2d 614 , 417 N.E.2d 1002 (1980); Rivers v. AT & T Technologies, Inc., 147 Misc.2d 366, 372 , 554 N.Y.S.2d 401, 405 (Sup.Ct.1990) (relieving bulk chemical manufacturer of liability to ultimate user where user was “too remote in the chain of distribution” and manufacturer “provided extensive warnings …
Retrieving the full opinion text from the archive…
Paul Wolfgruber
v.
Upjohn Company
New York Court of Appeals.
Dec 18, 1980.
417 N.E.2d 1002
APPEARANCES OF COUNSEL, David A. Shults for appellant., Andrea Lynch for respondent.
Meyer.
Cited by 91 opinions  |  Published

Lead Opinion

[*770] OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Richard J. Cardamons at the Appellate Division (72 AD2d 59).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler. Judge Meyer dissents and votes to reverse in an opinion in which Judge Fuchsberg concurs.

Dissent

Meyer, J.

(dissenting). I would reverse and reinstate the order of Special Term which denied summary judgment to plaintiff based in part on. the fact that “plaintiff has not yet deposed the defendant.”

Plaintiff, a physician,. seeks to recover from defendant, drug manufacturer, for failure adequately to warn concerning the effects of the drug Cleocin. The Appellate Division reversing, granted summary judgment to defendant and held the warning contained in the package insert and in the Physician’s Desk Reference adequate as a matter of law.

Plaintiff’s infection developed in 1974 following administration of Cleocin to himself. Whether his doing so in the face of the warning printed in the insert and the desk reference and in view of his medical knowledge constituted contributory negligence or assumption of the risk presents a jury question' and furnishes no basis for summary judgment. Nor should plaintiff have been nonsuited on the adequacy of warning issue. Doing so deprived him of. his right to explore via pretrial discovery the facts known to defendant in 1974 as a basis for determining adequacy of the warning.

How fruitful such.discovery can be is, quite fortuitously, available in the record of a nearly identical case, Werner v Upjohn Co. (628 F2d 848). Comparison of defendant’s 1974 warning in the record of the present case with that in its 1974 “Dear Doctor” letter for the same drug set forth in the opinion in Werner shows the latter to be more detailed. Moreover, the history of the drug recounted in that opinion shows that disclosure may well provide plaintiff with evidence sufficient to take to the jury the question of[*771] adequacy of the warning relied upon by defendant in this case.

Plaintiff should not have been no-caused without an opportunity to obtain defendant’s records relating to its knowledge about and experience with the drug (CPLR 3212, subd [f]).

Order affirmed, etc.