283 F.3d 254 (5th Cir. 2002), 00-31440, Stahl v Novartis Pharmaceuticals Corp.

Docket Nº:00-31440
Citation:283 F.3d 254
Party Name:JOSEPH B. STAHL, Plaintiff-Appellant v. NOVARTIS PHARMACEUTICALS CORP., Defendant-Appellee
Case Date:February 13, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 254

283 F.3d 254 (5th Cir. 2002)

JOSEPH B. STAHL, Plaintiff-Appellant

v.

NOVARTIS PHARMACEUTICALS CORP., Defendant-Appellee

No. 00-31440

United States Court of Appeals, Fifth Circuit

February 13, 2002

Revised March 15, 2002

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Appeal from the United States District Court for the Eastern District of Louisiana

Before KING, Chief Judge, and DUHE and BENAVIDES, Circuit Judges.

KING, Chief Judge:

Plaintiff-Appellant Joseph B. Stahl appeals the district court's summary judgment in favor of Defendant-Appellee Novartis Pharmaceuticals Corporation on his claims under the Louisiana Products Liability Act. Stahl also appeals the district court's prior order dismissing his intentional tort claim. For the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Lamisil is a prescription drug manufactured by Defendant-Appellee Novartis Pharmaceuticals Corporation ("Novartis"). The drug is approved by the FDA for treatment of fungal infections in the toenails and fingernails. The package insert included with Lamisil during the time period relevant to this litigation contained warnings of a number of possible adverse reactions. The "WARNINGS" section of the insert stated: "Rare cases of symptomatic hepatobiliary dysfunction including cholestatic hepatitis have been reported. Treatment with Lamisil . . . Tablets should be discontinued if hepatobiliary dysfunction develops." The "PRECAUTIONS" section of the insert indicated that "[h]epatic function (hepatic enzyme) tests are recommended in patients administered Lamisil for more than six weeks or in those who develop unexplained nausea, anorexia, or fatigue." The "ADVERSE REACTIONS" section of the insert stated Page 260

that "[r]are adverse events, based on worldwide experience with Lamisil . . . use include symptomatic hepatobiliary dysfunction, including cholestatic hepatitis . . . ."

On April 3, 1998 Plaintiff-Appellant Joseph B. Stahl ("Stahl") was treated by Dr. Martin Claiborne, a dermatologist, for chronic fungal infection of the toenails. Dr. Claiborne prescribed Lamisil to treat Stahl's condition. Dr. Claiborne explained that he planned to treat Stahl's infection with Lamisil for twelve weeks, but prescribed only a six-week supply of the drug. Dr. Claiborne instructed Stahl to return to the doctor's office after the first six weeks of treatment for a liver (hepatic) function test, due to the risk of liver problems associated with use of Lamisil.

On April 27, 1998, twenty-four days after he began taking Lamisil, Stahl developed cholestatic hepatitis. He did not experience any nausea, anorexia, or fatigue prior to this time. His treating physicians have diagnosed his cholestatic hepatitis as drug-induced.

Stahl commenced the instant action against Novartis in district court on April 5, 1999. Stahl's initial complaint alleged negligent and intentional tort claims under the general tort liability provisions of Louisiana's Civil Code. See La. Civ. Code Ann. art. 2315 (West 1997 & Supp. 2002). In a July 14, 1999 order, the district court dismissed these claims on the ground that the Louisiana Products Liability Act ("LPLA") provides the exclusive remedy for products liability actions against manufacturers under Louisiana law. See La. Rev. Stat. Ann. § 9:2800.52 et seq. (West 1997). In that order, the district court gave Stahl leave to file an amended complaint. Stahl accordingly amended his complaint to allege two claims under the LPLA: that Lamisil is "unreasonably dangerous in composition," see id. § 9:2800.54 (B)(1), and that Lamisil is "unreasonably dangerous because an adequate warning has not been provided," see id. § 9:2800.54(B)(3).

After extensive discovery, Novartis filed a motion for summary judgment. On November 29, 2000 the district court granted this motion with respect to both of Stahl's LPLA claims, finding: (1) that Stahl had adduced no evidence apart from his own unsubstantiated allegations to support his "unreasonably dangerous in composition" claim, and (2) that the warnings contained in the Lamisil package insert were adequate as a matter of law.

Stahl appeals this summary judgment in favor of Novartis, arguing that the district court's conclusions were erroneous and that the district court improperly considered expert opinion in its summary judgment determination. Stahl further contends on appeal that the district court improperly dismissed the intentional tort claim raised in his original complaint because there is an "intentional acts" exception to the exclusive remedy provision of the LPLA.1 We will first address the viability of Stahl's intentional tort claim and then discuss the district court's summary judgment on his two claims under the LPLA. Initially, some background information on the LPLA is useful.

II. THE LOUISIANA PRODUCTS LIABILITY ACT

To maintain a successful products liability action under the LPLA, a Page 261

plaintiff must establish four elements: (1) that the defendant is a manufacturer of the product; (2) that the claimant's damage was proximately caused by a characteristic of the product; (3) that this characteristic made the product "unreasonably dangerous"; and (4) that the claimant's damage arose from a reasonably anticipated use of the product by the claimant or someone else. See La. Rev. Stat. Ann. § 9:2800.54(A) (West 1997). A product is "unreasonably dangerous" under the LPLA if the product meets at least one of the following criteria:

(1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55;

(2) The product is unreasonably dangerous in design as provided in R.S. 9:2800.56;

(3) The product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in R.S. 9:2800.57; or

(4) The product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product as provided in R.S. 9:2800.58.

Id. § 9:2800.54(B). These statutory mechanisms for establishing that a product is unreasonably dangerous "are predicated on principles of strict liability, negligence, or warranty." Jefferson v. Lead Indus. Assoc., 930 F.Supp. 241, 245 (E.D. La. 1996). However, for causes of action arising after the effective date of the LPLA, negligence, strict liability, and breach of express warranty are not available as theories of recovery against a manufacturer, independent from the LPLA. See id.

To maintain a "construction or composition" defect claim under the LPLA, a plaintiff must establish that, at the time the product left the manufacturer's control, "the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer." La. Rev. Stat. Ann. § 9:2800.55 (West 1997). To maintain a failure-to-warn claim, a plaintiff must demonstrate that "the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product." Id. § 9:2800.57 (West 1997). Proving a design defect or a "construction or composition" defect is not a prerequisite to establishing a failure-to-warn claim. Even if a product is not defectively designed or constructed, a manufacturer "may still have a duty to warn consumers about any characteristic of the product that unreasonably may cause damage." Grenier v. Med. Eng'g Corp., 243 F.3d 200, 205 (5th Cir. 2001).

III. STAHL'S INTENTIONAL TORT CLAIM

The district court dismissed the claims in Stahl's original complaint, including his intentional tort claim, because these claims were not based on theories of liability recognized in the LPLA. We review the district court's dismissal of a claim de novo. Proctor & Gamble Co. v. Amway Co., 242 F.3d 539, 564 (5th Cir. 2001).

Because Stahl's cause of action accrued after September 1, 1988, the LPLA governs his claims. See Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 527 (5th Cir. 1995). As the district court correctly noted, the LPLA contains an exclusive remedy provision, stating that "[a] claimant may not recover from a manufacturer for damage caused by a product on the basis of any theory of liability that is not set forth in" the LPLA. La. Rev. Stat. Ann. § 9:2800.52 (West 1997). This provision limits a plaintiff's theories of recovery Page 262

against a manufacturer of an allegedly defective product to those established by the LPLA. See, e.g., Jefferson, 930 F.Supp. at 244.

Stahl contends that the district court's dismissal of his intentional tort claim was nonetheless improper because there must be an "intentional acts" exception to the exclusive remedy provision of Page 263

the LPLA. In support of this contention, Stahl cites a number of cases recognizing the existence of an intentional acts exception to the exclusive remedy provision of

the Louisiana Workers' Compensation Act (the "LWCA"). See, e.g., White v. Monsanto Co., 585 So.2d 1205, 1208 (La. 1991); Bazley v. Tortorich, 397 So.2d 475, 480 (La. 1981). Stahl reads this provision to suggest that "intentional tort is an exception to every exclusive remedy." We disagree.

Stahl is correct that the exclusive remedy provision of the LWCA contains an express exception for intentional acts. See La. Rev. Stat. Ann. § 23:1032(B) (West 1998) ("Nothing in this Chapter shall affect the . . . liability, civil or criminal, resulting from an intentional act."). However, the fact that the LWCA contains such a provision does not imply that the LPLA's exclusive remedy provision is subject to a similar exception. There is no language in the LPLA indicating that its exclusive remedy provision...

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