# Incollingo v. EWING

> Supreme Court of Pennsylvania · January 25, 1971 · 444 Pa. 263

URL: https://www.frixlaw.com/law-library/cases/9702590

## Case

- **Full name:** Incollingo v. Ewing Et Al., Appellants
- **Court:** Supreme Court of Pennsylvania
- **Decided:** January 25, 1971
- **Citations:** 444 Pa. 263; 282 A.2d 206; 1971 Pa. LEXIS 785
- **Precedential status:** Published
- **Opinion:** Concurring in part by Bell
- **Judges:** Robebts, Bell, Jones, Cohen, Eagen, O'Brien, Roberts, Pomeroy, Coi-Ien
- **Cited by:** 270 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9702590

## How later opinions describe it (automated extraction)

- observing that Pennsylvania does not impose strict liability on prescription drugs “merely because of dangerous propensities of the product”
- describing the issue of prescription drug manufacturer liability as centering on "whether the warning that was given to the prescribing doctors was proper and adequate"
- holding pharmaceutical manufacturers to a high degree of responsibility
- stating strict liability was not applicable to a case involving a prescription drag manufacturer’s alleged failure to properly warn physicians of the dangers involved with taking the drug
- finding strict liability rule of § 402A did not apply to prescription antibiotic drug

## Opinion text

Opinion Concurring in Part and Dissenting in Part by
Mr. Chief Justice Bell:
I agree with the Majority that the verdict against Dr. Levin and Dr. Cucinotta must be affirmed. However, I would grant judgment non obstante veredicto for Parke, Davis & Company. The Majority correctly frame the issue of Parke, Davis’s liability in terms of the adequacy of the warning given to prescribing doctors. However, it is inconceivable to me how, in the face of the explicit labeling and clear warning on each package of Chloromycetin—“Warning—-Blood dyscrasias may be associated with intermittent or prolonged use. It is essential that adequate blood studies be made.”—the Majority can conclude that judgment n.o.v. should not have been entered in the Company’s favor. It is an elementary and cardinal principle of the law of negligence that, in the absence of a statute, the test of liability is the exercise of reasonable care. That means the care which a reasonable and prudent person would and should exercise under the same or similar circumstances. See Karavas v. Poulos, 381 Pa. 358, 364 , 113 A. 2d 300 ; Camp v. Allegheny County, 263 Pa. 276, 282 , 106 A. 314 ; Tua v. Brentwood Motor Coach Company, 371 Pa. 570, 575 , 92 A. 2d 209 .
While drug companies should certainly be required to exercise care “commensurate with the harm which would be likely to result” if such care were not exercised, Henderson v. Nat. Drug Co., 343 Pa. 601, 610 , 23 A. 2d 743 , they are not insurers, and should not be, as the Majority seem to require, responsible for any and every injury which results from the use of their products. To hold this Company liable would require *298 a very farfetched and unjustifiable extension of the prior decisions of this Court and would in reality make them insurers. I believe that, as a matter of law, this defendant’s conduct and warning were undoubtedly reasonable and adequate under the facts and circumstances presented by this record, and, accordingly, I would enter judgment n.o.v. in its favor.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9702590. Public record. Not legal advice.