Hutto v. McNeil-PPC, Inc.
79 So. 3d 1199
La. Ct. App.2011Background
- Brianna Hutto died from acetaminophen toxicity after doses of Infants’ Tylenol® administered by her parents following hospital dosing instructions.
- Infants’ Tylenol® is more concentrated than Children’s Tylenol®; a dosing mix-up occurred between products, causing confusion for caregivers.
- OPSH (OGH) emergency department failed to provide a dosing sheet and instructions consistent with the product labeling, contributing to overdoses.
- Litigation consolidated: malpractice claim against OGH/Dr. Godeaux and products liability claim against McNeil under the LPLA; PCF defended causation/damages.
- Jury verdict initially found no defect but later found defect in labeling with fault apportioned 70% to OGH, 23% to McNeil, 2% to Christina, 5% to Theresa; damages awarded to the parents and Brianna’s estate.
- Mary Carter agreement issue, preemption and punitive-like defenses raised; trial court denied JNOV; this court affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mary Carter agreement validity | Huttos contend the secret agreement realigned fault prejudicially. | McNeil argues secret realignment taints trial necessitating new trial. | No reversible Mary Carter agreement; not prejudicial; no new trial required. |
| FDA preemption of Huttos’ warnings claims | State claims not preempted; warnings could have prevented overdose. | FDCA/CFDA preempts state failure-to-warn claims if FDA would not have approved changes. | Not preempted; Wyeth framework applies; failure to show FDA would not have approved changes. |
| LPLA failure-to-warn liability | Infants’ Tylenol® labeling lacked critical warnings; Huttos would have avoided overdose. | Plaintiffs did not prove reasonably anticipated use; dosing sheet failed to eliminate confusion. | Reasonable factual support for failure-to-warn; not clearly wrong. |
| Judgment inconsistent verdict and jury instruction | Inconsistencies were properly reconciled by continued deliberation rather than jotting down a revised verdict. | Trial court should have entered judgment on consistent answers without retrial. | Court did not err; allowed continued deliberations and reconciliation. |
| Damages awards | Wrongful death and survival damages appropriate given loss and suffering; no abuse of discretion. | Jury awards should be reduced as excessive. | No abuse; damages affirmed. |
Key Cases Cited
- Wyeth v. Levine, 555 U.S. 555 (Supreme Court 2009) (FDCA preemption framework for state failure-to-warn claims; CBE considerations)
- PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (Supreme Court 2011) (generic drug warnings preemption framework)
- Thibodeaux v. Ferrellgas Inc., 717 So.2d 668 (La. App. 3 Cir. 1998) (Mary Carter agreements; public policy void where secret and realign litigation)
- Jack v. Alberto-Culver USA, Inc., 949 So.2d 1256 (La. 2007) (LPLA burden elements; reasonableness of warning and causation standards)
- Payne v. Gardner, 56 So.3d 229 (La. 2011) (reasonably anticipated use; design and warning considerations)
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (manifest error standard for appellate review of fact-finding)
- Watson v. State Farm Fire & Casualty Insurance Co., 469 So.2d 967 (La. 1985) (factors influencing fault allocation)
- Hill v. Shelter Mut. Ins. Co., 935 So.2d 691 (La. 2006) (standards for mental anguish damages in wrongful death)
- Tingle v. American Home Assurance Co., 40 So.3d 1095 (La. App. 3 Cir. 2010) (limits on wrongful death damages for children; panel authority)
- Domingue v. State ex rel Dep’t of Pub. Safety, 490 So.2d 772 (La. App. 3 Cir. 1986) (foreseeability of intervening causes in proximate causation)
- Rando v. Anco Insulations, Inc., 16 So.3d 1065 (La. 2009) (causation; multiple causes and substantial factor test)