“However, even if we assume such 6 labeling should have taken place, defendant-Dr. Bussabarger testified that he relied on his 7 own knowledge of anesthetics and, in fact, did not read the labeling which was on the 8 container. Thus, if defendant-drug company was negligent in not labeling its container so 9 as to warn of dangers, this negligence was not a proximate cause of plaintiff’s 10 disability.”
How later courts described this case
- “However, even if we assume such 6 labeling should have taken place, defendant-Dr. Bussabarger testified that he relied on his 7 own knowledge of anesthetics and, in fact, did not read the labeling which was on the 8 container. Thus, if defendant-drug company was negligent in not labeling its container so 9 as to warn of dangers, this negligence was not a proximate cause of plaintiff’s 10 disability.”
- “[I]f defendant-drug company was negligent in not labeling its container so as to warn of dangers, this negligence was not a proximate cause of plaintiffs disability” because plaintiffs doctor “did not read the labeling which was on the container.”
- where the prescribing physician stated that he did not read the allegedly inadequate warning
Written by the judges who cited it.
The opinion
Hill, J.
(special concurrence in Judge Rosellini’s dissent) — While not concurring in all that Judge Rosellini says in his dissent, I do concur in his conclusions that this was not a proper case for the application of res ipsa loqui-tur, and that the probable cause of the plaintiff’s pitiable condition was left to conjecture and speculation with no more than a possibility that Dr. Bussabarger’s negligence, if any, may have been the cause thereof. I, too, would affirm the judgment entered on the verdict of the jury in this case.
July 9, 1968. Petition for rehearing denied.