324 F.3d 518 (7th Cir. 2003), 02-3446, Ziliak v. AstraZeneca LP

Docket Nº:02-3446
Citation:324 F.3d 518
Party Name:KATHLEEN ZILIAK, Plaintiff-Appellant v. ASTRAZENECA LP and ASTRAZENECA AB, Defendants-Appellees.
Case Date:March 31, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 518

324 F.3d 518 (7th Cir. 2003)

KATHLEEN ZILIAK, Plaintiff-Appellant

v.

ASTRAZENECA LP and ASTRAZENECA AB, Defendants-Appellees.

No. 02-3446

United States Court of Appeals, Seventh Circuit

March 31, 2003

ARGUED FEBRUARY 28, 2003

Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 00 C 249. Richard L. Young, Judge.

C. Richard Martin (argued), Msrtin & Martin, Boonville, IN, for Plaintiff-Appellant.

Page 519

Bonnie L. Gallivan, L.A. Whaley (argued), Ice Miller, Indianapolis, IN, for Defendant-Appellee.

Before POSNER, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Kathleen Ziliak suffers from bronchial asthma. To treat her disease, her physician, Dr. Frank Amodio, prescribed Pulmicort Turbuhaler ("Pulmicort"), an inhaled corticosteroid manufactured by AstraZeneca LP.1 Following clinical studies conducted in 1996 and 1997, AstraZeneca determined that on rare occasions Pulmicort users developed glaucoma, cataracts, and increased intraocular pressure. As a result, AstraZeneca issued package inserts warning that "rare instances of glaucoma, increased intraocular pressure, and cataracts have been reported following the inhaled administration of corticosteriods." Although he was aware of AstraZeneca's warnings and of the risks of using Pulmicort to treat asthma, Dr. Amodio decided to prescribe Pulmicort to Ziliak because, in his view, the benefits of using the drug outweighed the risks. Ziliak began using Pulmicort in January 1998. The following month, she informed to Dr. Amodio that she was "doing great" and had stopped coughing as a result of her asthma. In July, Ziliak saw Dr. Amodio again and reported that she had run out of Pulmicort and that she had started wheezing and having difficulty breathing again. Dr. Amodio decided that Ziliak should continue taking Pulmicort, and gave her a refill for her inhaler. Ziliak did not see Dr. Amodio again.

In November 1998, after a routine eye exam, Ziliak received the unfortunate news that she had developed severe glaucoma, cataracts, and high intraocular pressure. Following this diagnosis, Ziliak brought this products liability action against AstraZeneca in state court, alleging that AstraZeneca had failed to adequately warn of the risks of developing glaucoma, cataracts, and high intraocular pressure after using Pulmicort, and that the lack of adequate warnings rendered Pulmicort a defective or unreasonably dangerous product. Because the parties are diverse (Ziliak is a citizen of Indiana; AstraZeneca AB is incorporated and has its principal place of business in Sweden; AstraZeneca LP is a limited partnership with citizenship in Sweden, Delaware, and New York) and the amount in controversy exceeds $75,000, AstraZeneca removed the action to federal court. It then moved for summary judgment, arguing, among other things, that the firm could not be held liable for Ziliak's injuries under Indiana's "learned intermediary doctrine," and that the warning accompanying Pulmicort was adequate as a matter of law.

After receiving several extensions of time to respond to AstraZeneca's motion for summary judgment, Ziliak filed a response in which she argued that genuine issues of material fact existed concerning whether the warnings were adequate. In support, she tendered an affidavit from her medical expert witness, Dr. Donald Marks. Dr. Marks asserted that he was "aware of case reports and also two small studies of the incidence of glaucoma and cataracts with inhaled steroids, indicating a small, but not what I would try to minimize and dismiss as a rare risk," but opined that the studies were neither adequate in size nor in design to reasonably estimate the risk of developing the adverse side effects. These observations led him to conclude that "the information made Page 520

available [to a prescribing physician] about the side effects of glaucoma and cataracts related to the use of inhaled corticosteroids was insufficient to warn him adequately of the risk of...

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