The
KDDK Advantage - September/October 2009
Indiana Supreme Court
Rejects
"Read-and-Heed" Presumption
On September 8, 2009,
the Indiana Supreme Court ruled in favor of a group of
plastic medicine cup manufacturers in a wrongful death
case, giving product manufacturers some guidance on just
how much warning a manufacturer must give a consumer.
The Kovach case involved
a child who tragically died of an overdose of acetaminophen
with codeine while recuperating from surgery. The medicine
was administered in a plastic, translucent cup with a
capacity of 30 milliliters. Just 15 milliliters was prescribed.
The facts were undisputed that the administering nurse
was familiar with the cup. However, the autopsy showed
more than twice the prescribed level of medication in
the minor's bloodstream. The nurse testified that she
had filled the cup approximately half-way, although the
minor's father testified that he witnessed the nurse administer
a full cup.
The Supreme Court upheld
the trial court judgment applying a "cause-in-fact"
analysis, finding that a warning would not have mattered
even if read and followed. While the Court noted that
a "cause-in-fact" is generally up to a jury,
it becomes a question of law when reasonable minds cannot
differ. The Court held that a summary judgment for the
cup manufacturers was appropriate, because the child was
administered more than twice the prescribed dose of the
medication, whereas the plaintiffs' expert testified that
the cup had just a 20 to 30% margin for error. As stated
by the Court, "the 'read-and-heed' presumption does
not completely dispose of the causation issue in a failure-to-warn
case. The most the presumption does is establish that
a warning would have been read and obeyed. It does not
establish that the defect in fact caused the plaintiff's
injury."
While Kovach presented
a unique set of facts, the Supreme Court's decision was
unanimous and may signal a change in the scrutiny the
Court will give to the issue of causation in product warning
and instruction cases.
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