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Henderson v. National Drug Co.

Supreme Court of Pennsylvania

December 4, 1941, Argued ; January 6, 1942

Nos. 302, 309


 [*602]   [**745]  OPINION BY MR. JUSTICE MAXEY:

This is an appeal by the above defendants from an order granting a new trial after the jury in an action of trespass had returned verdicts in their favor. They claim that the evidence against them was so inconclusive that binding instructions should have been given and that the setting aside of the jury's verdicts was an abuse of discretion.

The plaintiff was treated professionally on October 5th, 1937, by the additional defendant. He described the treatment as follows: "He (the doctor) took an alcohol bottle and washed my back, then something with iodine on it, and rubbed my back and then took a bottle about  [*603]  two inches deep, stuck a needle and pushed it in my back. He inserted the needle through the cork." He added: "I went home . . . I felt pain in the shoulder and arm. Then I couldn't move my arm or shoulder and I went down to the doctor and asked him what [***3]  he had done to me. . . . Two days later I started to swell up; my shoulders went in an abscess". A little later Dr. Grahn "lanced the abscess". Treatments were continued for several days. A month later a more serious condition developed. He testified: "Back of my heart it raised up about the size of a quarter. I couldn't walk; I was bent over and the lump back of my heart was bigger than my head." He was taken to a hospital and was operated on. Three days later he was taken home and there confined to his bed for seven weeks, with "tubes draining from the back". He "had pains nearly a year before they started to leave" him. He had never before had any trouble with his back and "as a result of the abscess" he was incapacitated from work from October 5, 1937, to January 17, 1938, and also lost 16 days after January 17th. Plaintiff charges that Dr. Grahn, on or about October 5th and 7th, 1937, injected into the former's body "two injections of liver extract" which had been "made and sold and delivered to Dr. Grahn by the original defendant, The National Drug Company, either directly or through retailers or distributors" and that "this extract was impure, unsterile and unfit for [***4]  use" and caused the bodily injuries stated. It is pleaded that the Drug Company "failed to use care to see that the drug was safe and fit for the intended use".

In bringing the additional defendant on the record, the Drug Company charged him with being "careless and negligent in the following particulars: (a) In the use of an unsterile or infected needle; (b) In the use of too great a quantity or dose of said liver extract; (c) In negligently and carelessly using and administering said liver extract to the said plaintiff."

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343 Pa. 601 *; 23 A.2d 743 **; 1942 Pa. LEXIS 317 ***

Henderson v. National Drug Company et al., Appellants

Prior History:  [***1]  Appeals, Nos. 302 and 309, Jan. T., 1941, from judgment of C.P. No. 7 (tried in C.P. No. 5), Phila. Co., Dec. T., 1938, No. 3340, in case of Donald Henderson v. The National Drug Company and Dr. Henry V. Grahn. Judgment in Appeal No. 302 reversed; judgment in Appeal No. 309 affirmed.

Trespass. Before SMITH, P.J.

Verdict for both defendants. Motion by plaintiff for new trial as to both defendants granted. Each defendant appealed.

Disposition: The judgment of the court below in granting a new trial in the case of Donald Henderson v. The National Drug Company is reversed.

The judgment of the court below in granting a new trial 1 in the case of Donald Henderson v. Dr. Henry V. Grahn is affirmed.



injection, abscess, drug company, liver, concentrate, bottle, patient's, irritant, food, cases, warranty, extract, sterile, needle, administered, preparation, medicines, conjecture, unsterile, unfit

Torts, Elements, Duty, General Overview, Negligence, Proof, Evidence, Expert Testimony, Civil Procedure, Trials, Jury Trials, Province of Court & Jury, Evidence, Inferences & Presumptions, Burdens of Proof, Allocation, Business & Corporate Compliance, Contracts Law, Breach, Breach of Warranty, Types of Contracts, Express Warranties, Sales of Goods, Remedies, Products Liability, Theories of Liability, Governments, Agriculture & Food, Distribution, Processing & Storage, Contracts Law, Election of Remedies, Environmental Law, Hazardous Wastes & Toxic Substances, Toxic Torts, Causation, Proximate Cause