### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 1, 2000 Sess

ion BETTY L. JOHNSON, ET AL 

### . v. CHARLES S. SETTLE, M.D., ET AL 

### . Appeal from the Circuit Court for Davidson County No. 96C-2598 Thomas Brothers, Judge

No. M1999-01237-COA-R3-CV - Filed June 1, 2001

This is an appea l o f a jury verdict based on personal injuries plaintiff received as a result of the wrong acetic acid solu

tion being appli

ed duri ng a colposcopy. Metro Medical Supply , Inc., the supplier of the acid, appeals the trial court’s decisions on post trial motions and the amount of the remittitur. Among other grounds, Metro Medical asserts that it is not liab le because an y acts or omissions on its part

were too remote

and that there were intervening superceding causes that were the legal and proximate cause of plaintiff’s injuries. We agree, and for the reasons below, we find that Metro Medical wa

s not legally

liable to plaintiffs and any negligence on its part was superc eded by unforeseeable

intervening ca

uses. Accordingly, the

judgment against Metro Medical Supply, Inc. is reversed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and Remanded

P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILLI

AM B. C AIN , J., joined.

David L. Steed, Jay N. Chamness, Thomas A. Wiseman III, Henry Hine, Keith Jordan, Nashville, Tennessee, for the appellants, Charles S. Settle, M.D., Miller Medical Group, P.C ., Debra Sander s, Baptist Healthcare Group and Metro Medical Supply, I nc.
Daniel L. Clayton, Nashville, Tennessee, Steven R. Walker, Memphis, T ennessee, for th

e appellees, Betty L. Johnson and William T. Johnson.1 Metro Medical Supply raised other issues which need not be discussed in view of our decision.
2 OPINION

This case arises

from personal inju

ries Mrs. Johnson r eceived whi le undergoin g a medical procedureknown as a colposcopy on February 7, 1996. The colposcopy was performed a t Mill er Medical Group by Dr. Charles Settle. Assisting Dr. Settle was an employee of

Baptist Healthcare Group, Debra Sanders, who prepared the tray for use by the doctor in performing the

procedure. The procedureinvolved swabbing the cervix and vaginal vault with a 4% ace ti c acid compound. M

s. Sanders had prepared the tray using, by mistake, glacial acetic acid, a 99% acid concentrate. The acid had been supplied by Metro Medical Supply, I nc.
Mrs. Johnson suffered serious burns and other physical and psychol

ogical injuries

as a result of the application of the glacial acetic acid. She and her husband sued Miller Medical Group, Dr. Settle, Baptist Healthcare Group, and Metr o Medical Supply

. After a jury

trial, the jury

found all defendants

liable and assigned fault as follows: Miller Medical Group, P.C./Charles Settle, M.D. - 25%; Baptist Healthcare, P.C. - 60%; and Metro Medical Supply, Inc. - 15%. The jury then awarded damages to Mrs. Johnson totaling $2,507,811.74 and damages to Mr. Johnson totaling $150,000.00 for loss of consortium.

The trial court su

ggested a re

mittitur to the damag

es awarded to Mrs. Johnson reducing that award to $1,757,811.74, and the plaintiffs accepted. Although all defendants or iginally appealed, the appeal was dismissed as to all claims by Mr. andMrs. Johnson again

st all defendants

except Metro Medical Supply, Inc., who has appealed on the basis that any

negligence b

y its employ

ees was r emote, o r was superceded by negligenc e of others, so that, as

a matter of law, n

o liability ca

n be imposed upon it. 1

I. During the trial, Metro Me dical Supply moved for a directed verdict at the close of the plaintiffs’ proof and at the close of all the proof. After trial, it moved for judgment notwithstanding the verdict. Al l those motions were denied, and the denial of the last is the order on appeal. T h e applicable

standard of review in determi ning whether a trial court should grant a judgment notwithstanding the verdict is the same standard used in determining whether a direc ted verdict should be granted. Hicks v. Sovran Bank/Chattanooga , 812 S.W.2d 296, 299 (Tenn. Ct. App.1991). The standard of review for a motion for directed verdict is well settled:

A directed verdict is appropriate only when the evidence i s su sceptible to but one conclusion. We must ‘take the strongest legitimate view of the evidence favoring the opponent of the motion when called upon to determine whethe r a trial court sho

uld have granted a directed verdict.’ In addition, all reasonable infe rences in favor of the opponent of the motion must

be allowed and

all evidence contrary to the opponent’s position must be disregar ded. As this C ou rt has stated, ‘The court may grant the motion only if, after assessing the evidence ac

cording to the fo

regoing stand

ards, it3

determines that reasonable minds could not diff

er as to the conclusions to be drawn from the evidence.’
Alexander v. Armentrout , 24 S.W.3d 267, 271 (Tenn. 2000) (citations omitted).

The plaintiffs argue that we should apply the “ material evidence” standard to the jury’s verdict that Metro Medical Supply was responsible for 15% of the fault

for Mrs. Johnson’s in

juries. “Findings of fact by

a jury in civ

il actions shall be s

et aside only

if there is no mate

rial evidence to support the verdict.” Tenn. R. App. P. 13(d). In Alexander v. Armentrout , our Supreme Court has recently discussed the interplay between the standard of review for directed verdict and the material evidencerule. In that case, the Court determined that the Court of Appeals had correctly stated the applicable

standardof review for a motion for directed verdict, as set out above, but had misapplied the standard when evaluating the evidence. 24 S.W.2d at 271. The erro r on the p art of the intermediate

court was engaging in a de novo review of the evidence “in t hat it appear s to have disregarded

the j ury’s findings and to have reevaluated the evidence in its entirety.” Id .; see also Williams v. Brown , 860 S.W.2d 854, 857 (Tenn. 1993) (on review of the grant of a d

irected verdic

t, it is notthe of fice o f an ap pella te cou rt to w eigh t he evi dence .) In Armentrout , the Supreme Court then proceeded to examine thesufficiency of the evidence

in the record to su

pport the jury ’s specific factual findings, reflected in a special verdict form, and found, under the “no material evidence rule,” that there was evide

nce to support those

fin dings. 24 S.W.2d at 271, 272. Those findings of fact determinedthe legal issues involved, and the Court affirmed the t rial court’s denial of directed verdict. Id . at 274.

II.

On the jury verdict form the jury answered affirmatively the following questions with respect to M etr o Me dic al S upp ly:

1. Was Metro Medica

l Supply, I

nc. negligent

? 2. If your answer is “Yes,” wa s that neglige nce a legal cau se of injur y or damage to the plaintiff which would not otherwise have occurred?

Pla intiffs proceeded ag

ainst Metro Medica

l Supply on the

theory that

it was neglige

nt fo r supplying the incorrect strength of

acetic acid

in response to an o

rder by Ms. S anders and/or B aptist Healthcare

Group. Specifica

lly, plaintif

fs alleged that

Metro Medic al neglig ently failed to take appropriate

precautions to insure the correct stre ngth of acetic acid was supplied; negligently failed to check the label of the bottle which contained the acetic acid, to determine whether it was the correct solution and concentration; and negligently filled the or der in question.

These allegations, and the jury’s det ermination that Metro Med ical Supply w as negligent,

rest on the assumption that a

4% acetic

aci d compound had been ordered. On appeal, Metro Medical Supply argues facts which attempt to put into question whether the 4% solution was actually ordered from Metro Medical Supply. The jury has determined a ny factual issues regarding the filling of the4

order and has implicitly

determined tha t a 4% solution was ordered. Our task, per Armentrout , is simply to dete

rmine if any

material evidenc

e supports these f

indings.

The sealed and labeled bottle which was delivered contained glac

ial acetic acid, a 99% acid
co ncentrate. Glacial acetic acid is highly concentrated and be ars a pungent odor that is 20 to 25 times stronger than a

4% acetic acid s

olution. Glacial a

ceticacid is used in the practice of medicine to treat corns and viralwarts, but undisputedly is inappropriate for a colposcopy

. On the other hand,
a 4% acetic acid

solution is equivale

nt to household

vinegar and is routinely used in the procedure.

Metro Medical Su

pply is an incorporated medical supplier who sells pharmaceutical supplies only to health care providers. It does not sell directly to consumers and does not sell compounded productsor solutions. During the relevant time frame, orders for pharmaceutical supplies to be used at Miller Medical had to be placed through the purchasing department of Baptist Healthca re Group. The two entities regularly did business with each other and had develope d routine practices.

On November 14, 1995 , Ms. Sanders (an e mployee of B aptist

Healthcare

Group, but located at Miller Medical as sisting the doctor) forwar ded an order whic

h included, among

other items, “acetic ac id, 4%, 50 0 milliliters, at three each” to Baptist Healthcare Group. Keith Brady , a purchasing agent at that en tity, forwa

rded the order to

Me tro M edical Supply. Mr. Brady did not specifically

remember whethe

r he faxed the orde

r or telephoned it

in, as it was common for him t

o use either method. Had he telephoned it in, he testified, he would have read the order exactly. Mr. Brady did not know the difference between g lacial acetic acid and a 4% solution of acetic acid.

Paula Mitchell at Metro Medical Supply, Inc. receive d the order and placed it into the company’scomputer system. She also had no specific recollection as to whethe r the order in question was received by fax or telephone, and the paperwork which might have disclosed that fact had been rou tin ely d isc arde d pr ior to t he d ate of M rs. Joh nso n’s inj ury.
The order placed in Metro Medical Supply’s sy stem was for acetic acid. Ms. Mitchell was
awarethere was a diff

erence betwee

n a 4% solution of ac

etic acid and g

lacial acetic a

cid, knew both
were used by medical practitioners, but was unaware of their specific uses. She had seen orders for bo th co me i nto Met ro M edi cal Sup ply, but tes tif ied suc h or ders wou ld h ave b een h and led dif fere ntl y. Metro Medical Supply, Inc., was not licensed to compound pharmace uticals and, therefore, co uld notprovide the 4% solution. If a customer ordered the 4% solution, Ms. Mitchell would either direct the cu stomer to a related company which had a pharmacy license, Metro Medical Pharmacy , o r would herself fax the order directly to the Pharmacy. She did neither in this case because she entered the order as “acetic acid.”

Mr. Brady came to Metro Medical Supply , Inc. and picked up the order. He inspected the items and checked

the packing slip which said the order included “acetic acid 500 ML.” He then delivered the product to Miller Medical Group.
Thus, the proof shows that Ms. Sanders ordered 4% acetic acid solution, but received glacial2 In addition to its uses in medicine for removing corns and treating viral wart s, it is also used to etch metals and can be utilized in photogra phy.
5 acetic acid. The error occurred s ome where in Mr. Bra dy’s transm

ission of the order

or Ms. Mitchell’s conversion of the order as she entered it in Metro Medical’s computer system. There is material evidence to support the jury’s finding that Metro Medical Supply , Inc. filled the

orde r incorrectly

and, therefore

, was neglige

nt.
The events occurring after Metro Medical Supply g ave the glacial aceti

c acid to Keith Brady
are relevant to

the issues of causation and involve acts and omissions by persons unassoci

ated with Metr o Medica l Supply. Metr o Medical Supply

provided three b

ottles of glacia

l acetic acid in conformity

with the packing slip they also provided. The acid was contained in a cylindrica

l glass bottle and contained a large manufacturer’s label on the front and back. The top of the label indicatedin large letter

s that the bottle con

tained “Acetic A

cid, Glacia

l” and included a detailed “actual analysis” of its co ntents, in cluding notice that it was 99.9% acid. The label included warnings of “DANGER!” and “Combustible, Causes Severe Burns.”

Mr. Brady inspected and picked up the order, signed the packing slip, and delivered the items to M ill er M edi cal . He did not , be for e del ive ry, compare the packing slip with the purchase order. He did not know the difference between glacial acetic acid and a 4% a cetic acid sol ution. The routine business practic

e would involve “ma

tching up” the pa

cking sli p and the p urchase order, including comparing them to see if anything was back order ed. Although he did not remember when he did it, Mr. Brady

matched the documents up for filing and compared the two. He did not notice tha tone document said 4% acetic acid and the other said simply acetic ac id. Unde r the norma

l practicein effect at that

time, if the person at Miller Medical who had ordered a product received the wrong product, that personwould notif y Mr. Brady who would straig hten things out with Metro Medical Sup ply. He received no such notification from anyone at Miller Medical about the order in question until the acid was used on Mrs. Johnson.

Mr. Brady delivered the three bottles of glacial ace

tic acid to Miller Me

dical, along with the packing slip. Although Ms. Sanders could not specifically remember whether she was the person who placed the bottles of

acetic acid in thesupply cabinet, she testified that typically she would put away items she hadordered. The acetic acid was stored with other products in the cabinet. Expert testimonywas offered that glacial acetic acid, being highly concentrated, 2 is me an t to be stored separately from other supplies. Other expert testimony established that supply shelves and cabinets needto be constantly monitored for expiration dates, rotating

stock, and ensuri

ng that the items in stock were appropriate. The three bottles of glacial acetic acid at issue her e were received November 16, 1995 and remained unopened in the cabi net until one w as opened to prepare the tray for the procedure on Mrs. Johnson.

Ms. Sanders was a med

ical assistant,

licensed as a nurse technician, who had many years of experience. She had assisted in one or two colposcopie

s per day fo

r about ten y

ears prior to

this one. She prepared themater ials used by D r. Settle for the p

rocedure, inclu

ding opening a

sealed bottle6

of the acetic acid and pouring it into a sm

all Dixie cup marke

d with the lettering

“acetic.” She a

lso prepared three other solutions in a Dixie cup and 2 medicine cups and placed them on the tray for Dr. Settle. When asked if she read the bottle before opening it

and pouring the solution into the cup, she responded, “No. I pulled just the bottle and saw acetic acid, which was my fault. I should have read it. I didn’t. And – and I

poured it in.” When asked to clarify, she verified that she should have read the label and seen that it did not say 4%. Later , she also testified: Q: Have you

ever denied tha

t – denied to anybody

that that was y

our responsibility [look ing a t the b ottle befo re po uring it int o the c up]? A: No.

An expert in nursing practices testified that when pharmaceuticals are delivered to a clinical office, they should be verified by trained

personnel who would be familiar with the types of supplies ordered and their uses. She further testified that cabinets in a treatment room should be checked to, among other things, make sure no inappropriate products are there. Finally , she testified that the standardof care for nur si ng practice was not met when Ms. Sanders prepared the colposcopy tray because the glacial acetic acid bottle was clearly labe led as suchand because the powerful odor of the glacial acid when the bottle was opened should have put the nurse technician on notice that it was the wrong product. That expert further testified that it is the respon

sibility of the

person helping w

ith the procedure to know the proper solution to be used.

When questioned about th e bottles in

which 4% acetic acid solution had been received in the past, Ms. Sanders testified that the bottles varied in shape and color. However, they had always had
a pharmacy label

from Metro Medica

l Pharmacy,

and had alway

s been labeled a

s a 4% solution. A “replica” of the type of

bottle that the 4% solution commonly came in was introduced into evidence. It was lightweight plastic, and its footprint was square. The glacial acetic acid was in a cylindrical glass bottle.

III.

To recover for personal injuries under a negligence theory, a pla intiff must prove “(1) a duty of care owed by the

defendant

to the plaintiff, (2) conduct by the defendant breaching tha t duty, (3)
an injury or loss to the plaintiff, (4) causation in fact, and (5) proximate or legal cause.” McCall v. Wilder, 913 S.W.2d 150, 153 (T enn. 1995) (cita

tions omitted). The de terminative issue s in this appeal involve the last two of those.

Causation in fact

refers to the cause and effect relationship that must be established betweenthe defendant’s

conduct and the pl

aintiff’s loss

b efore liability for that particular loss will be imposed. On the other hand, legal cause connotes a policy decision by the j udici ary to d eny lia bili ty for o therw ise ac tion able c onduc t. It require s the courts to establish the boundary of legal liability, using mixed considerations of

logic, common sen

se, justice, polic

y, and prec

edent.7

Waste Management, Inc

. v. South Central Bell Telephone Co. , 15 S.W.3d 425, 430 (Tenn. Ct. App. 1997) (citations omitted). Our Supreme Court has explainedthe distinction between cause in fact and proximate or legal cause:

The distinction between cause in fact and proximate, or legal, cause is not merely an exercise in semantics. The terms are not interchang eab le. Although both c ause in fact andproximate, or legal, cause are elements of negligence that the plaintiff must prove, they

are very d

ifferent conce

pts. Cause in fact

refers to the cause and effect relationship

between the defendant’s tortious co nduct an d the plaintiff’s injury or loss. Thus, cau se in fact d eals with the “but for” consequences of an act. The defendant’s conduct is a caus e of the event if the event would not have occurred but for that conduct. In contrast, proximate cau se, or legal ca use, concerns a determination of whether legal liability should be imposed wh ere cause in fact has been establi shed. Pro ximate or legal cause is a policy decision made by the legislature or

the courts to deny

liability for otherwise actionable conduct based on considerations of logic, common s ense, policy

, precedent and

“our more or less inadequately

expressed ideas of what justice demands or of what is administratively possible and convenient.”

White v. Lawrence , 975 S.W .2 d 525, 529 ( Tenn. 1998 ) (quoting Snyder v. Ltg. Lufttechnische GmbH, 955 S.W.2d 252, 256 n. 6 (Tenn. 1997) (citations omitted)).

In the case before us, the jury answered y es to whether Metro Medical’s negligence was “a legal cause of inj ury or da mage t o the p laint iff wh ich wo uld no t oth erwis e have occur red? ” In determining cause in fact, the jury’s task is to determine whether the injury would still have occurred
even if the conduct had never taken place. Waste Management , Inc ., 15 S.W.3d at 431. Applying the Armentrout

standard, we con

clude that there was ma

terial evidence

in the record to su

pport a finding that Metro Medica l Supply’s neg ligence in fillin

g the order was

a cause in fact o

f Mrs. Johnson’s injuries.
However, for liability to be imposed, a defendant’s acts or omissions that equate to a breach of du t y owed to the plaintiff must be both the cause in fact and the legal cause of a plaintiff’s injuries. Tennessee co urts have de veloped a th ree-prong tes t for determ ining p roximate or legal causation: “(1) the tortfeasor’s conduct must have been a ‘substantial factor’ in bringing about the ha rmbeing complained of; (2) there is no rule or policy that should relieve the wrongdoer fro m liability bec

ause of the manner in

which the negligence has resulted in the harm; and (3) the harm giving rise to the action could havebeen reasonably foreseen or anticipated by a person of ordinary intelligence and prudence.” McClenahan v. Cooley , 806 S.W.2d 767, 775 (Tenn. 1991) (citations omitted). Foreseeability

is an essential element of causation and, therefore, of liability for neg ligence. “An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury. But an injury which could not have been foreseen3 Where, for example, two separate and distinct causes, unrelated in operation, contribute t o an injury, but one of them merely f

urnishes t

he condition maki

ng the injur

y possible,

a longsta nding rule o f law would p lace sole responsib ility for the injury on the later, direct ca use. Fly v. Cannon , 836 S.W .2d 570 , 574 (Tenn. Ct. App. 1992); Underwood v. Watersli des of Mid-America, Inc. , 823 S.W .2d 171 , 180 (T enn. Ct. Ap p. 1991 )(A defend ant is not liable if he only f

urnish es the con

dition by which t he injur y is made pos sibl e and th ere is an intervention of a di stinct and unrelated

cause of the injury.) While the i ntact survival of t

his rule after t

he demise of joint and several liabilit y and the resulting linkage of liability with fault in the afterma th of McIntyre v. Ballenti ne , 833 S.W .2d 52 (T enn. 199 2), is questionable,

the relat ed concept of int

ervening cause is undoubtedly still viable. White v. Lawrence , 975 S.W.2d at 529; Waste M anage ment, Inc ., 15 S.W.3d at 429-30.
8 or reasonably anticipated

as the probable result of an act of negligence is not actionable and such an act is either the remote c ause, or no cause whatever, of the injury.” Linder Const. Co., Inc. , 845 S.W.2d at 181 (cit ing Ward v. Univ. of the South , 209 Tenn . 412, 354 S.W.2d 246, 250 (1962), quoting Moody v. Gulf Refining Co. , 142 Tenn. 280, 218 S.W. 817 (1919)).

An injury may have more than one c ause, andthe relationship between separate acts which
ma yhav e contributed to th e injury is pa

rt of the proximate c

ause analy

sis. 3 Certainly, there is no requirement that all acts contributing to an injury be related. “[I]t is not necessary that tortfeasors
or concurrent forces act in concert, or that there be a joint operation or a union of act or intent, in order for the neglig

ence of each to

be regarded a

s the proximate cau

se of th e in

juries, thereby rendering all tortfeasors liable.” Goodermote v. State, 856 S.W.2d 715, 722 (Tenn. Ct. App. 1993) (quoting McClena han , 806 S.W.2d at 775) (citations omitted). However, separate and distinct sequential acts by diff

erent defenda

nts which may

each meet the “b

ut for” or “substa

ntial factor” te

st of cause in fact may not all be found to be the legal cause of an injury. The chain of legal causation be twee n the first neglig

ent act and the ev

entual injury

may be brok

en by a new, independent, intervening cause. Waste Management, Inc. of Tennessee , 15 S .W.3d at 432; McClenahan , 806 S.W.2d at 775. Courts have developed the inte

rvening cause

doctrine to apply

in such situations as part of the legal causation

analysis. Thus, the intervening cause doctrine has been called a commonlaw liability-shifting device. Waste Management, Inc. , 15 S.W.3d at 4 32. Sim ply stated, the doctrine provides “that a negligent actor will be relieved from liability when a new, independent and unforeseen

cause intervenes to produce a result that could not have been foreseen.” Id . (citations omitted).
[A]n independen t interven ing c ause breaks the chain of proximate causation and thereby precludes recovery. The

law is equally clear, however, that ‘[a]n intervening act, which is a normal response created by neglig ence, is no t a s uperseding, intervening cause so as to relieve the ori ginal wrong doer of liability, provided the intervening act could have r easonably been foreseen and the conduct [of the original wrongdoer] was a substantial factor in bringing about the harm.’ . . . Acco rdi ngly, ‘an intervening act will not exculpate the original wrongdoer unless it isshown that the intervening act could not have been reasonably a nticipated.’

White v. Lawrence , 975 S.W. 2d at 529 (q uoting McClenahan , 806 S.W.2d at 775).4 Foreseea bility is defined as “[t]h e abili ty to s ee or know in advance; e.g. the reasonable anticipati on that harm
or injury is a likely result from certain acts or omissions. In to rt law, the ‘foresee ability’ element o f proximate cause is establish ed by pro of that

actor, as person of ordinary i ntellig ence and prudence, shoul d reasonably have an

ticipated danger to others created by his negligent act. Th at which is o bject ively reasonable to expect, not merely what might conceivably occur. ” B LACK ’ S L AW D ICTI ONARY at 649 (6th ed. 1990) (citations omitted).

9 Thus, foreseeability is a necessary element of the analysis of both proximate cause and intervening cause. 4

The test of liability

under the law of i

ntervening ca

use requires a pe

rson to anticipate
or foresee what usually will happen. It does not require him

to anticipate and provide against what is unusual or unlikely to happen, or that which is remotely possible, but whether it was pr

obable accordi

ng to the usual expe

rience of perso

ns. Fly v. Cannon , 836 S.W.2d 570, 574 (Tenn. Ct. App. 1992) (citations omitted).
Therefore, the appropriate question is whethe

r the intervening

negligent ac

t could have been reasonably

anticipatedby the original negligent actor. I n the case before us, the question is whether Metro Medical Sup ply c ould reasonably have foreseen

that the medical pr

ofessionals to who

m it delivered a product, other

than the one orde

red, would

usethat product inappropriately. While there is testimony that employees of Metro Medical Supply knew the products they sold would be used in the treatment of patients, that knowledge is not sufficient to establish they should have anticipated improper use of a properly

labeled product.

There isevidence that g

lacial acetic a

cid is put to certain
uses in th e p ractice of medicine. The employees of Metro Medical Supply were not aware of the different medicaluses of the two kinds of acid solution, were not required to be so informed, and, in any event, were not informed of the potential use of the product ordere d by Miller Medical.

On the other hand, th

e staff at the doc

tor’s office wa

s so informed and w

as aw are of the different uses for the two kinds of ac

id solutions. This hei

ghtened level o

f expertise is

the basis of
a defense available to manufacturers and sellers of medical products who provide adequate warning regarding the use of their products, the learned intermediary doctrine.

Under this doctrine, manufacturers [or sel le rs] of certain medical products ‘may reasonably

rely on intermediarie

s to transmit their

warnings and ins

tructions.’ This defense is based o n the pivotal role that physicians play in the distribution of prescription products. Physicians can be learned intermediaries only when they receiveadequate warnings. Thu s manufac turers [or sellers] are not shielded from liability if they provide inadequate warning s to physicians.

In order to recover for fail ure to warn under the learned intermediary doctrine, a plaintiff must show: (1) that the defendant faile d to warn the phy

sician of a risk associated

withthe use of the product not otherwise known to the physician;and (2) that the failure to warn the phy sic ian was both a cau se in fact and pro

ximate cause of t he p lai nti ff’s inj ury.10

King v. Danek Medical, Inc. , 37 S.W.3d 429, 452 (Tenn. Ct. App. 2000) (citations omitted), see also Laws v. Johnson , 799 S.W.2d 249, 253 (Tenn. Ct. App. 1990) (holding seller may also use learned intermediary

defe nse and tha t “the physician acts as a ‘learned intermediary ’ between the manufacturer

or seller and the p atient.”) In addition, a supplier may not be lia

ble for a failure

to warn if the doctor has actual knowledge of the risks involved in using a product.
‘[T]he failure to w

arn cannot be the

proximate

cause of the user’s injury if the user hadactual know ledge of the hazards in question.’ Under this doctrine, physicians are the ‘consumer s’ who must be warned. Thus it is generally held that the learned intermediary

doc tri ne m ay sh iel d a m anu fact urer fro m li abi lit y w he n the physician was independently aware of the risks involved.
Harden v. Danek Medical, Inc. , 985 S.W.2d 449, 451 (Tenn. Ct. App. 1998) (citations omitted). The doctrine applies to direct use by physicians as well astheir prescribe d use by patie

nts. Although the learned intermediary doctrine may not be directly

applicable

here, because

the claim ag ainst Metro Medical Supply is not based on a failure to warn, we think it prov ides importan t principles related to whethe r Metro Medical Su

pply could ha

ve reasonably

foreseen the ne

gligent, incorrect use of a product which was clearly and appropriately labeled. The label correctly identified the product as glacial acetic acid, it clearly stated the contents were 99.9% acetic acid, and it warned that the product c

auses burns.

IV.
Causation, including proximate or legal caus e, i s gen eral ly a q ues tio n fo r th e ju ry. S imi lar ly, the question of whether an intervening act which would break the cau sal chain has bee

n shown is also generally for the jury

to determine. The exception, however, is where the uncontrover

ted facts, andinferences to be drawn from those facts, make the answer t o the question so clear

that all reasonable

persons must agree on the outcome. White v. Lawrence , 975 S.W.2d at 529-30 ; Haynes
v. Hamilton County , 883 S.W. 2d 606, 612 (Tenn. 1994 ) (citing McClenahan , 806 S.W.2d at 775).

We are of the opinion

that this case fal

ls within that exceptio

n. Metro Medical Su

pply could nothave reasonably anticipated, even if it delivered a produc t different from the one

ordered, that
no one involved in

pl acing the order or receiving the delivery would have failed to notice the difference; that the staff at a medical office, presumed to be aw are of the importa

nce of accura

cy in the use of medical pr

oducts, would fail

to take measures to ensure the correct product was received and stored; or that medical personnel would open and pour from a properly labeled bottle without checking the contents. I

n other words, it wa

s not reasonably

foreseeable

that sending a product

used in the medicinal treatment of viral warts or corns woul d be used by a physician or his staff in a
manner inconsistent with th

e intended purpos

e and in contradiction to the warning labels contained directly on the bottle. I

t w as not reas ona bly f ores eeab le t hat med ica l pe rso nne l wo uld app ly a product labeled “99.9% acetic acid,” “Danger!” and “causes severe burning” directly to a pa tient’s genital area.11

We find that only one conclusion is reasonable: that the act of Metro Medical in supplying
an adequately

labeled and distinct bottle of acetic acid was not the proximate or lega

l cause of Mrs. Johnson’s injuries. These unforeseeable intervening negligent acts of others broke the chain of causation and pr

eclude a finding

of liability a

gainst Metro Med

ical.

V.

For the reasons stated herein, wefind that the defe ndant, Metro Medic

al Supply, is no

t liable to plaintiffs becau

se any acts

or omiss ions on its part were not the proximate or legal cause of plai n tiff’s injuries and that, because reasonable minds could not differ on that conclusion, Metro Medical Supply’s motion for a judgment notwithstanding the verdict should have been grante d. Therefore, we reverse

the trial court’s denial of the motion for judgment notwithstanding the verdict and remand to the trial court for further actions, as needed, consistent with this opinion.

Our record includes a “Joint Notice of Settlement,” filed after brie fs were submitted

by all parties to the trial court

proceeding, but before oral argument, notify ing this court that the plaintiffs hadagreed to a co

mp romise and s ettlement with Miller Medical Group, P.C., Charles L. Settle, Baptist Healthcare Group, and Debra Sanders (who had been previously nonsuited). On the basis of this notice, we entered an order dismissing those defendants from

this appeal. Because this notice
was filed at

the time when all

parties were aw

are of the status

and nature of the

appeal, we assum

e that all issues betwee

n the named partie

s have been settle

d and th at fu rther proceedings are precluded.

Costs of this appeal are taxed to the plaintiffs, for which execution may i ssu e, i f nec ess ary.

_____________________________ PATRICIA COTTRELL, JUDGE