Segal McCambridge Attorneys Win Pharmaceutical Products Liability Case in Indiana Supreme Court


September 8, 2009

The Indiana Supreme Court has issued its opinion in the case of Kovach v. Caligor Midwest, et al, finding that the manufacturers of a cup used to measure and dispense pain medication were not responsible for the death by overdose of a nine-year-old boy.

Matthew Kovach had undergone a surgical procedure to remedy an enlargement of nasal tissue, and afterwards was prescribed 15 milliliters (mL) of acetaminophen with codeine to help him deal with post-operative pain. The nurse administered the medicine, a light red liquid, using a translucent cup with dosage markings delineating both 15 and 30 mL. The boy later went into respiratory arrest and died of asphyxia. An autopsy showed codeine levels in his bloodstream to be more than twice the recommended therapeutic level.

Matthew's parents sued, among others, the manufacturers and a distributor of the cup. They produced a pharmacist and associate professor of pharmacology, Dr. James O'Donnell, who examined the cup and said in an affidavit that it was not suitable for "precision measurement." He said that the manufacturers should have provided a warning to that effect and that Matthew's overdose "[r]esulted from using the [c]up as a volume measuring device for [p]recision [m]easurement."

The trial court granted summary judgment in favor of the defendants, but the Kovachs appealed, and the decision was reversed in part.

The Indiana Supreme Court heard the case on Thursday, April 09, 2009. In an unanimous opinion issued today, it found that the defects in the cup alleged by the appellants were not the cause of the overdose. The court concluded that, if the codeine was the cause of death, "it was due to an erroneous double dosage of 30 mL of codeine when Matthew was supposed to receive 15 mL. The accident therefore cannot be attributed to any alleged defects in the cup itself."

The court pointed out that, even if one was to take the statements of Dr. O'Donnell as to the cup's defects at face value, "the cup's imprecision would at most result in an overdose of only 30% and could not account for the 100% excess level of codeine discovered in the autopsy."

Segal McCambridge attorneys Jason L. Kennedy, Keith J. Hays, Nancy S. Woodworth and Jill M. Felkins represented Medegen Medical Products, LLC, and its affiliated entitles. To read the decision, click here.