Reference no: EM131658006

Question: Matthew Kovach, a nine-year-old child, was admitted to Surgicare, LLC (Surgicare), to undergo a scheduled adenoidectomy. While he recovered in the ambulatory surgery center, a nurse administered Capital of Codeine, an opiate, to him. To administer the drug, the nurse used a graduated medicine cup (the Cup), manufactured and/or sold by various parties that later became defendants in the case described below. (Those defendants will be referred to here as the Cup Defendants.) The Cup is made of flexible translucent plastic which is not completely clear and denotes various volume measurement graduation markings, including milliliters (ml), drams, ounces, teaspoons, tablespoons, and cubic centimeters. These measurement markers are located on the interior surface of the Cup and have a similar translucency as the Cup. The vertical distance between the ml volume graduation markings varies: the smallest volume of ml measurement for the graduations between empty and 10 ml is 2.5 ml; while the smallest volume of ml measurement for the graduations between 10 ml and 30 ml is 15 ml. The Cup holds 30 ml or more of medicine when full. Matthew was prescribed 15 ml, or one-half of the Cup's volume, of Capital of Codeine. Although the nurse stated that she gave Matthew only 15 ml of Codeine, Matthew's father, Jim Kovach, who was in the room at the time, testified that the Cup was completely full. Matthew drank all of the medicine in the Cup. After being discharged from Surgicare and arriving home, Matthew went into respiratory arrest. He was transported to a hospital, where he was pronounced dead of asphyxia due to an opiate overdose. The autopsy revealed that Matthew's blood contained between 280 and 344 nanograms per ml of codeine, more than double the recommended therapeutic level of the drug. Jim and Jill Kovach (Matthew's mother) filed suit in an Indiana trial court against the Cup Defendants, asserting claims for

(1) breach of the implied warranty of merchantability;

(2) breach of the implied warranty of fitness for a particular purpose;

(3) negligent design; and

(4) strict liability.

Their claims centered around contentions that the design of theCup was defective, largely because its translucency and lack of clear, easily distinguishable measurement markings led to a danger of measurement errors, and because the Cup Defendants issued no warning to the effect that the Cup should not be used when a precise measurement of medication quantity was important. By way of affidavit, the Kovaches' expert witness, a pharmacy professor with many years of experience, offered an opinion consistent with the above contentions regarding the Cup's design and lack of warning. The trial court granted the Cup Defendants' motion for summary judgment on each of the claims filed against them by the Kovaches. Did the trial court rule correctly in doing so? In your answer, consider each of the four claims brought by the plaintiffs.