Opinion
No. 1999-CA-001717-MR.
October 27, 2000.
Appeal from Jefferson Circuit Court, Honorable Edwin A. Schroering, Judge, Action NO. 97-CI-005873.
John R. Shelton, Manley N. Feinberg, Louisville, Brief for Appellant.
William D. Grubbs, Jann B. Logsdon, David T. Schaefer, Kristin M. Lomond, Louisville, Brief for Appellee.
Before BARBER, BUCKINGHAM and MILLER, Judges.
OPINION AFFIRMING
Erma Rae Wood appeals from an order of the Jefferson Circuit Court granting the motion of the appellees, Wyeth-Ayerst Laboratories Company Division of American Home Products Corporation, American Home Products Corporation, and A.H. Robins Company, for a judgment on the pleadings. We affirm.
In 1973, the U.S. Food and Drug Administration (FDA) approved the use and sale of fenfluramine for a single, short-term use drug as an appetite suppressant. The drug was manufactured, tested, and packaged by A.H. Robins and sold by Wyeth-Ayerst under the trade name Pondimin. In the mid 1990's, the demand for fenfluramine escalated significantly when its use, in conjunction with phentermine, became popular as an unapproved diet drug commonly referred to as "Fen-Phen." The FDA has never approved the use of this drug combination.
Wood contends that the appellees encouraged and promoted the sale and use of the combination and that thousands of prescriptions for fenfluramine were written in Kentucky. Wood further contends that as early as 1995 medical studies established increased health risks as a result of the use of Fen-Phen. The studies cited by Wood concluded that the use of Fen-Phen increases the risk of primary pulmonary hypertension and heart valve damage. Wood alleges that despite the overwhelming indicators of health concerns associated with the use of fenfluramine and phentermine, the appellees did not accede to the FDA's request for a recall and moratorium on the sale of fenfluramine until September 15, 1997.
In October 1997, Pamela E. Buren filed a complaint in the Jefferson Circuit Court against various manufacturers, marketers, or distributors of fenfluramine, phentermine, and an associated drug, dexfenfluramine. The appellees, Wyeth-Ayerst, American Home Products, and A.H. Robins, were among the defendants named in the complaint. Buren proposed to represent all other Kentucky residents who had taken the drug in a class action against the defendants.
Buren later amended her complaint, joining appellant Erma Rae Wood as a plaintiff. The trial court subsequently dismissed Buren as a plaintiff because she no longer wanted to act as the class representative. Wood then proceeded with the intent to act in that capacity.
In March 1999, Wood filed a second amended complaint modifying Buren's original complaint to specifically list the claims now at issue. The complaint sought, among other relief, (1) court-supervised notice and medical monitoring to enable people who have ingested Fen-Phen to be monitored for the existence of potentially dangerous side effects caused by the drugs, including, but not limited to, valvular heart disease, primary pulmonary hypertension, and for altered serotonin levels and associated cognitive and/or neurophysiological manifestations of impairment or injury; (2) a fund to pay for such monitoring and medical research concerning the effects of the drugs beyond the monitoring relief; (3) reimbursement of the costs of the drugs and/or previously incurred examinations costs; and (4) punitive damages. The complaint sought damages under theories of negligence/medical monitoring, strict liability, concert of action, and enterprise liability.
The complaint stated that Wood and those similarly situated to her had suffered a "significantly increased risk of serious injury and disease" and, as a consequence, would "probably . . . be required to pay sums to ascertain the existence, nature and extent of their injuries in the future." However, the complaint did not allege that Wood had incurred an actual physical injury or other manifestation of a present medical detriment as a result of her ingestion of Fen-Phen.
Wood subsequently filed a motion for class certification pursuant to CR 23, moving the court to declare that the action be maintained as a class action and to designate her as the class representative. Wyeth-Ayerst and American Home Products thereafter filed a motion for dismissal pursuant to CR 12.02 on the grounds that Wood failed to state a claim upon which relief could be granted. On June 17, 1999, the trial court entered an order granting the appellees' motion for dismissal. This appeal followed.
Kentucky Rules of Civil Procedure.
The motion was captioned "Motion for Judgment on the Pleadings," which is a ground for relief under CR 12.03. However, the motion explicitly cited CR 12.02 and plaintiffs' failure to state a claim upon which relief can be granted as the specific grounds for dismissal. We construe the appellees' May 10, 1999, motion as a motion for dismissal under CR 12.02; however, the standards for granting dismissal are substantially the same under CR 12.03, and the result of the appeal would not change had we construed the motion as a CR 12.03 motion.
Wood contends the trial court erred in granting the appellees' motion for dismissal. A motion for dismissal for failure to state a claim should not be granted "unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim." Pari-Mutuel Clerks' Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, Ky., 551 S.W.2d 801, 803 (1977). "A motion to dismiss for failure to state a claim does not test the merits of the action but is confined solely to the sufficiency of the pleading." White v. Brock, Ky., 487 S.W.2d 908, 909 (1972).
Wood contends the trial court erred in applying Kentucky law; however, in her complaint, she did not allege she had suffered present physical harm as a result of her ingestion of Fen-Phen. Based upon this, we agree with the trial court that this case is controlled by Capital Holding Corporation v. Bailey, Ky., 873 S.W.2d 187 (1994).
In Capital Holding, plaintiff Larry Bailey was hired by Capital Holding to remove pipes and ducts from the basement of an office building. Unbeknownst to Bailey, but known to Capital Holding, the basement contained asbestos insulation. For approximately three months, Bailey worked in the basement and was thereby exposed to the asbestos. According to Bailey, he went home each day covered with asbestos dust, thereby contaminating his home and bringing his wife into direct contact with the asbestos dust.
Upon learning he had been exposed to asbestos, Bailey underwent a physical examination, x-rays, and testing. His medical expert determined that he had no present abnormality or manifestation of disease, but that he had a slightly increased risk of developing asbestosis and a significantly increased risk of developing mesothelioma (a painful and deadly form of cancer of the membranes surrounding the lungs). As here, Bailey filed a claim for negligence.
The Kentucky Supreme Court held in Capital Holding that the "mere ingestion of a toxic substance does not constitute sufficient physical harm upon which to base a claim for damages[,]" and that "until such time as the plaintiff can prove some harmful result from the exposure . . . his cause of action has yet to accrue." Id. at 195. Further, the Kentucky Supreme Court held in Louisville Trust Co. v. Johns-Manville Products Corp., Ky., 580 S.W.2d 497 (1979), that "[a] cause of action does not exist until the conduct causes injury that produces loss or damage." Id. at 500, quoting Saylor v. Hall, Ky., 497 S.W.2d 218, 225 (1973). See also Deutsch v. Shein, Ky., 597 S.W.2d 141 (1980); and Davis v. Graviss, Ky., 672 S.W.2d 928 (1984). We cannot distinguish the exposure to asbestos in Capital Holding from the exposure to Fen-Phen in this case. In both instances, the plaintiff was exposed to an agent that had the potential to result in serious future medical consequences, but which had not produced actual physical harm at the time of the suit. Accordingly, Wood's action has yet to accrue.
For purposes of our review only, we accept Wood's allegations that Fen-Phen, like asbestos, can result in serious future medical consequences.
Wood attempts to distinguish her case from Capital Holding by asserting that her complaint includes a claim for the establishment of a medical monitoring fund. In further support of her position, Wood asserts that medical monitoring claims have been recognized by a majority of jurisdictions that have decided the issue. However, we are bound by supreme court precedent, Supreme Court Rule (SCR) 1.030(8)(a), and we construe Capital Holding to require that a plaintiff allege a present manifest injury in order to maintain an action such as this. Although Wood states in her second amended complaint that "Kentucky common law provides for the establishment of a medical monitoring cause of action[,]" we are unaware of any such authority supporting this proposition. The supreme court has yet to create an exception to Capital Holding to provide for claims for medical monitoring, and even if we were to agree with Wood that there should be such an exception, we cannot originate it.
For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR.