ANTHONY LEE PAZO AND JOAN PAZO, APPELLANTS,
v.
THE UPJOHN COMPANY, APPELLEE
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Parents sued a pharmaceutical company for breach of warranty and negligence claiming a drug taken by the mother during pregnancy caused birth defects in their child. The trial court struck claims for mental pain and suffering by the parents under the 'impact rule' and dismissed all individual claims by the parents, leaving only derivative claims. The appellate court affirmed the dismissal of mental anguish claims but reversed the dismissal of individual claims.
Under Florida's 'impact rule,' parents cannot recover for mental pain and anguish absent physical impact to themselves. The strike of mental anguish claims was proper and affirmed. However, the trial court erred in striking all individual claims by the parents, and this determination was reversed and remanded.
[1] Recovery for mental pain and anguish is barred in the absence of physical impact.
[2] A parent cannot recover for mental pain and suffering resulting from injuries sustained by their minor child absent a physical impact upon the parent.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“that a person may not recover for mental pain and anguish in absence of impact”
Articulation of the 'impact rule' that Florida courts have consistently applied, which bars recovery for mental distress without physical contact.
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Join FLexlaw to unlock all legal intelligenceJoan Pazo, under prescription of an obstetrician, ingested a drug manufactured by Upjohn Company during her pregnancy. The ingestion allegedly caused …
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HOBSON, Judge.
Appellants brought suit against appellee for breach of warranty and negligence claiming, among other things, that a drug manufactured by appellee and taken by appellant Joan Pazo under prescription of an obstetrician caused physical anomalies to their minor child as a result of the ingestion of the drug by the mother during pregnancy.
The trial court granted appellee’s motion to strike certain portions of appellants’ complaint insofar as they allege mental pain and suffering of appellants as a result of the injuries sustained by their minor child, finding that there was no “impact” between the drug and either of the appellants. In a supplementary order, all claims of appellants in their individual capacities were stricken by the lower court, and final judgment on said claims was entered for the appellee, leaving only the derivative claim of any of the plaintiffs or any individual claim of the minor child.
In two recent decisions the Florida Supreme Court has again refused to recede from the “impact rule,” that is, that a person may not recover for mental pain and anguish in absence of impact. Gilliam v. Stewart, Fla.1974, 291 So. 2d 593; Herlong Aviation, Inc. v. Johnson, Fla.1974, 291 So. 2d 603.
The trial court was correct in finding that there had been no “impact” to appellants as a result of injuries sustained by the minor child, and his order striking those portions of the complaint relating to pain and suffering is hereby affirmed.
The supplementary order striking all claims of appellants in their individual capacities is reversed and the cause remanded for further proceedings.
Affirmed in part, reversed in part, and remanded.
McNULTY, C. J., concurs.
BOARDMAN, J., concurs specially with opinion.
BOARDMAN, Judge
(concurring specially) .
I agree with that portion of Judge Hob-son’s opinion which reverses the ruling of the trial court striking all claims of the appellants in their individual capacities.
I likewise concur with that part of the opinion in which the trial court denied the claim of the husband for pain and suffering under the impact rule.
I am of the opinion that the appellant (mother) may recover for mental pain and anguish sustained by her because of the ingestion of the drug, and any trauma experienced in the delivery of the deformed child which would not have occurred in a normal delivery. See Way v. Tampa Coca Cola Bottling Co., Fla.App.2d, 1972, 260 So. 2d 288. A review of the record indicates that the complaint alleges that the mother “ . . . suffered physical changes induced by the drug.”
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Cited By
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Eagle-Picher Indus., Inc. v. COX, 481 So. 2d 517 (Fla. 3d DCA 1985)…3) (denying recovery to mothers who ingested DES during pregnancy on ground that both impact and physical manifestation of emotional harm absent, and thus assuming, without explanation, that ingestion of drug was not impact); Pazo v. The Upjohn Co., 310 So. 2d 30 (Fla.2d DCA 1975) (holding, without discussion, that parents of child born with deformities resulting from mother’s ingestion of defendant’s drug during pregnancy suffered no impact and therefore not entitled to recover for their mental distress), c…
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Lloyd v. N. Broward Hosp. Dist., 570 So. 2d 984 (Fla. 3d DCA 1990)
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Moores v. Charles S. Lucas, M.D., 405 So. 2d 1022 (Fla. 5th DCA 1981)…onal pain and suffering resulting from the birth of Justin were properly stricken on the basis of the impact doctrine. Gilliam v. Stewart, 291 So. 2d 593 (Fla. 1974); Herlong Aviation, Inc. v. Johnson, 291 So. 2d 603 (Fla. 1974); Pazo v. Upjohn Co., 310 So. 2d 30 (Fla. 2d DCA 1975). The claim for costs was properly stricken, since there was no statute or contract allowing for the recovery of costs. See 12 Fla.Jur.2d Costs § 3 (1979), and cases cited therein. On the other hand, we agree with the plaintiffs t…
Authorities Cited
- Gilliam v. Stewart, 291 So. 2d 593 (Fla. 1974)
- WAY v. Tampa Coca Cola Bottling Co., 260 So. 2d 288 (Fla. 2d DCA 1972)
- Herlong Aviation, Inc. v. Johnson, 291 So. 2d 603 (Fla. 1974)