” This appeal, from an order denying defendant Willing’s motion for summary judgment or for dismissal of the complaint with prejudice, concerns itself with a pharmacist’s liability, as a retailer, for injuries allegedly occasioned because of the use of a prescription drug, sold by the pharmacist.
It is alleged that in 1953, while Dorothy Bichler was pregnant with the plaintiff, Joyce Bichler, she ingested diethylstilbestrol (DES) a drug manufactured by defendant, Eli Lilly & Co., prescribed by defendant Fleischer, a physician, and dispensed by the appellant, a pharmacist. Some time later Joyce Bichler allegedly suffered severe and permanent personal injuries because of this drug. Thereafter several personal injury actions were commenced, including this action against the pharmacist, in which the theories of recovery asserted are negligence, breach of warranty and strict products liability.
BICHLER v. WILLING, Leagle, decision/197738958AD2d331_1332, July 14, 1977.
The record does not reveal any actual negligence on the appellant’s part. Indeed it appears he filled the prescription precisely as he was directed. There being no allegation that he did any compounding, added to or took from the product as it had been prepared by the manufacturer, or that he did anything to change the prescription furnished him or that he adopted and represented the product as his own, appellant, as a matter of law, cannot be said to have been negligent in any of these respects. Nor can plaintiffs recover in negligence on the hypothesis that appellant dispensed the drug without first inspecting or testing it for the purpose of discovering its latent dangers. And, in view of the absence of any showing of a difference between the DES chosen by the druggist and other available brands, his choice of the particular name brand of DES cannot be classified as negligence. Accordingly the negligence cause of action must be dismissed. ” …
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