MEMORANDUM OPINION AND ORDER
GESELL, District Judge.
Plaintiff seeks to hold Xttrium Laboratories, Inc. responsible for the death of Parthenia R. Edwards, who died of a liver ailment after prolonged treatment with the drug isoniazid supplied by Xttrium. At a pretrial conference it developed there are no material facts in dispute. Defendant submitted a written statement of facts and moved for summary judgment. Plaintiff admitted the facts, indicating it had no further facts to submit except as to damages, upon defendant Xttrium conceding for purposes of the motion that the drug isoniazid which it and others supplied to the Veterans Administration caused the death of Edwards.
Thus a pure question of law is presented on undisputed facts.
Xttrium Laboratories, Inc., a small drug manufacturer, in 1964 produced a standard generic drug called isoniazid which it supplied under two contracts with the Veterans Administration. The V.A. contracts specified the manner of both the production and labeling of the drug. Isoniazid is a wellknown prescription drug used worldwide for many years in the treatment of tuberculosis. Its relative safety and effectiveness had, of course, been documented under the Federal Food, Drug, and Cosmetic Act, see 21 U.S.C. § 355, by another company which sponsored the drug. The only time Xttrium ever produced the drug was to meet the requirements of these V.A. contracts, and all of the tablets produced met specifications, were of good quality, and contained no defects.
Decedent was administered isoniazid over a period of 18 months by a V.A. hospital.
As a result she developed liver ailments, hepatitis and cirrhosis, which eventually caused her death.
Plaintiff apparently asserts two failures on the part of Xttrium. He claims that "said drug had not been properly tested for the dangerous and harmful side effects it would produce . . ." since "recent medicinal evidence has revealed that the use of such drug results in the development of liver failure . . . ." He also alleges, "That furthermore, they breached the implied warranty of merchantability, safety and fitness of such drug for medicinal use."
This second allegation (since there is no claim the drug was adulterated or inherently too dangerous to market) appears to be a claim that defendant did not sufficiently warn doctors of the dangers of isonaizid, and will be treated as such. Whether these alleged failings of defendant are pursued on tort or warranty theories, the analysis is the same. See Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir. 1975).
Isoniazid has been used for many years and in 1964-65 its potential harmful effects were known. "Research work on Isoniazid had been conducted on thousands of patients by hundreds of medical investigators prior to 1965 . . . ."
Specifically, it was admittedly well known that liver damage was among the adverse effects on humans.
It is not unusual for drug hypersensitivity to develop in persons who have been receiving long courses of treatment. Fever is a common symptom, as well as . . . hepatitis, and others. "Tuberculosis," Current Therapy, p. 91 (1963).