214 F.3d 73 (2nd Cir. 2000), 99-7539, Vitanza v The Upjohn Co.

Docket Nº:Docket No. 99-7539
Citation:214 F.3d 73
Party Name:MICHELE M. VITANZA, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF TIMOTHY F. VITANZA, Plaintiff-Appellant, v. THE UPJOHN COMPANY, Defendant-Appellee.
Case Date:May 05, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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214 F.3d 73 (2nd Cir. 2000)

MICHELE M. VITANZA, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF TIMOTHY F. VITANZA, Plaintiff-Appellant,

v.

THE UPJOHN COMPANY, Defendant-Appellee.

Docket No. 99-7539

United States Court of Appeals, Second Circuit

May 5, 2000

Argued: December 15, 1999

Appeal from judgment of the United States District Court for the District of Connecticut, Dominic J. Squatrito, J., granting defendant's motion for summary judgment on the ground that the "learned intermediary" doctrine barred plaintiff's claim. Questions concerning the "learned intermediary" doctrine certified to the Connecticut Supreme Court.

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JONATHAN M. LEVINE, Stamford, CT (Silver Golub & Teitell LLP, Richard A. Silver, Brad C. Gustafson, of Counsel), for Plaintiff-Appellant Michele Vitanza.

TIMOTHY W. DONAHUE, Wallingford, CT (Delaney, Zemetis, Donahue, Durham & Noonan, P.C., of Counsel), for Defendant-Appellee Upjohn Company.

Before: FEINBERG, JACOBS, and KATZMANN, Circuit Judges.

FEINBERG, Circuit Judge:

This is an appeal from a March 1999 judgment of the United States District Court for the District of Connecticut, Dominic J. Squatrito, J., granting defendant's motion for summary judgment on the ground that the "learned intermediary" doctrine barred plaintiff's claim. For the reasons stated below, we believe that the current status of the "learned intermediary" doctrine in Connecticut is not clear, and we conclude that we should certify the controlling question of law to the Connecticut Supreme Court.

Accordingly, it is hereby ORDERED that the Clerk of the Court transmit to the Connecticut Supreme Court a Certificate in the form attached, together with a complete set of the briefs, appendix and record filed by the parties with this court. This panel retains jurisdiction so that, after we receive a response from the Connecticut Supreme Court, we may dispose of the appeal. The parties are further ORDERED to bear equally such fees and costs, if any, as may be required by the Connecticut Supreme Court.

Certificate

Certificate to the Connecticut Supreme Court pursuant to Second Circuit Local Rule § 0.27 and Conn. Gen. Stat. § 51-199a (West 1999).

I. The question of law to be answered

On the facts of this case -- where (i) a drug manufacturer distributed promotional free samples to physicians and provided appropriate warnings to the physicians, (ii) the drug sample states only that it is to be dispensed by prescription only, (iii) the drug sample is ingested by (and causes injury to) an otherwise unwarned person in the patient's household, and (iv) the drug manufacturer is sued for damages under the Connecticut Product Liability Act, Conn. Gen. Stat. § 52-572m et seq. (CPLA) -- is the drug manufacturer insulated from liability as a matter of law by the learned intermediary doctrine?

II. Discussion

A. Statement of facts relevant to the question certified

Michele M. Vitanza (Mrs. Vitanza, or simply Vitanza) brought this suit individually and as executrix of the estate of her husband, Timothy Vitanza (Mr. Vitanza), against The Upjohn Company (Upjohn), a Delaware corporation transacting business in the state of Connecticut. Upjohn manufactured and marketed a prescription drug under the name Ansaid. That name is an acronym for A Non-Steroidal Anti-Inflammatory Drug. Ansaid is indicated for the acute or long-term treatment of signs and symptoms of rheumatoid arthritis and osteoarthritis, as well as for less serious conditions.

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Sometime in early 1992, an Upjohn sales representative provided samples of Ansaid to Mrs. Vitanza's obstetrician/gynecologist Dr. Gary Besser. The samples came in a box, which contained nine so-called blister cards with four Ansaid tablets per card. The labeling on the back of each blister card stated:

Complimentary Package

Not for Sale

4 Tablets

Ansaid 100 mg. Tablets

FLURBIPROFEN

Each tablet contains flurbiprofen 100 mg.

Information for use and dosage - see insert.

Store at controlled room temperature 15-30 C (59-86 F)

Caution: Federal law prohibits dispensing without prescription.

Each box of Ansaid samples also contained an explanatory insert eight columns long, single-spaced, setting forth information on Clinical Pharmacology, Indications and Usage, Contraindications, Warnings, Precautions, Drug Interactions, Adverse Reactions, Drug Abuse and Dependence, Overdosage, Dosage and Administration. The insert referred to the possibility of allergic reactions to Ansaid, stating that, "ANSAID should not be given to patients in whom ANSAID, aspirin, or other nonsteroidal anti-inflammatory drugs induce asthma, urticaria, or other allergic-type reactions. Fatal asthmatic reactions have been reported in...

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