447 F.3d 861 (6th Cir. 2006), 04-4175, Meridia Products Liability Litigation v. Abbott Laboratories

Docket Nº:04-4175.
Citation:447 F.3d 861
Party Name:MERIDIA PRODUCTS LIABILITY LITIGATION, Steering Committee, et al., Plaintiffs-Appellants, v. ABBOTT LABORATORIES, et al., Defendants-Appellees.
Case Date:May 11, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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447 F.3d 861 (6th Cir. 2006)

MERIDIA PRODUCTS LIABILITY LITIGATION, Steering Committee, et al., Plaintiffs-Appellants,

v.

ABBOTT LABORATORIES, et al., Defendants-Appellees.

No. 04-4175.

United States Court of Appeals, Sixth Circuit.

May 11, 2006

Argued: March 14, 2006

Appeal from the United States District Court for the Northern District of Ohio at Akron, No. 02-08000—James Gwin, District Judge.

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[Copyrighted Material Omitted]

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ARGUED:

Paul M. De Marco, Waite, Schneider, Bayless & Chesley, Cincinnati, Ohio, for Appellants.

David M. Bernick, Kirkland & Ellis, Chicago, Illinois, for Appellees.

ON BRIEF:

Paul M. De Marco, Stanley M. Chesley, Louise M. Roselle, Jean M. Geoppinger, Waite, Schneider, Bayless & Chesley, Cincinnati, Ohio, for Appellants.

David M. Bernick, Christopher M.R. Turner, Kirkland & Ellis, Chicago, Illinois, Christopher Landau, Kirkland & Ellis, Washington, D.C., for Appellees.

Before: COLE, GILMAN, and FRIEDMAN, Circuit Judges.[*]

OPINION

R. GUY COLE, JR., Circuit Judge.

In this multi-district product liability case, Plaintiffs-Appellants--certain current and past consumers of the diet-drug Meridia, whose actions were transferred to, or originated in, the Northern District of Ohio--appeal the district court's grant of summary judgment in favor of Defendants-Appellees, the pharmaceutical company that marketed and distributed Meridia and its affiliates. Plaintiffs argue on appeal that the district court (1) failed to conduct a meaningful choice-of-law analysis, (2) erred in partly excluding the testimony of one of Plaintiffs' experts, and (3) erred in granting summary judgment to Defendants as to Plaintiffs' various common law and statutory claims. For the reasons that follow, we AFFIRM the district court's grant of summary judgment.

I.

This litigation was occasioned by the diet-drug Meridia. First developed in 1980 as an anti-depressant by Boots Pharmaceuticals, Meridia works by slowing the body's dissipation of serotonin and norepinephrine, brain chemicals that affect satiety and impulse control. Meridia originally failed to gain Food and Drug Administration ("FDA") approval. In 1990, the rights to Meridia were purchased by Knoll Pharmaceuticals, which began to test the drug's potential to effectuate weight loss. In 1997, the FDA approved the marketing and sale of Meridia as a prescription diet-drug, which Knoll began to market in 1998. In 2001, Abbott Laboratories ("Abbott Labs") acquired Knoll. Abbott Labs now markets Meridia to doctors, pharmacies, and directly to consumers.

On March 19, 2002, a consumer watchdog group petitioned the FDA to remove Meridia from the market, alleging the drug to be ineffective and unsafe. In the wake of that petition, plaintiffs across the United States brought suit against Abbott Labs. Although peripheral to the present

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appeal, these plaintiffs also sued the doctors who prescribed Meridia and the pharmacies that sold it. The plaintiffs claimed to have incurred various injuries--e.g., heart attack, stroke, tachycardia, palpitations, chest pain, high blood pressure, and death--and claimed that Meridia is ineffective. The plaintiffs also claimed that they were at increased risk of developing a future injury. Some of the claims were filed originally in federal court, and Abbott Labs, which is an Illinois company, removed many of the state court claims on the ground of diversity.

In August of 2002, with the approval of the litigants, the Judicial Panel on Multi-District Litigation ("MDL Panel") transferred the pending federal cases to the United States District Court for the Northern District of Ohio, pursuant to 28 U.S.C. § 1407. In all, nearly 100 Meridia actions from 18 states1 were consolidated and assigned to the Honorable James S. Gwin. Following pretrial proceedings and discovery, Plaintiffs filed a Master Class Action Complaint ("MCA Complaint") and a Motion for Class Certification. The MCA Complaint alleged nine grounds for relief: (1) strict liability, (2) negligence, (3) negligence per se, (4) violation of statutory consumer protection, (5) unjust enrichment, (6) medical monitoring, (7) breach of express warranty, (8) breach of implied warrant, and (9) "corporate responsibility." Plaintiffs requested compensatory damages, punitive damages, attorneys' fees, and "such other or further . . . relief as may be appropriate under the circumstances."

Abbott Labs filed various motions in response. First, it filed a motion to exclude all of Plaintiffs' expert witnesses. Second, it filed a motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56(c), with respect to all claims. Third, it filed a memorandum in opposition to Plaintiffs' motion for class certification. The district court denied Abbott Labs's motion to exclude Plaintiffs' experts, except that it granted in part Abbott Labs's motion with respect to Arnold Schwartz, Ph.D.--as a pharmacologist, Dr. Schwartz was not permitted to testify as to the physiological effects of high blood pressure. The court granted Abbott Labs's motion for summary judgment with respect to all issues. See In re Meridia Prods. Liab. Litig., 328 F.Supp.2d 791 (N.D. Ohio 2004).

The court declined to rule on Plaintiffs' motion for class certification. See Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 616 (6th Cir.2002) ("We have consistently held that a district court is not required to rule on a motion for class certification before ruling on the merits of the case."); Jibson v. Mich. Educ. Ass'n-NEA, 30 F.3d 723, 734 (6th Cir.1994); Marx v. Centran Corp., 747 F.2d 1536, 1552 (6th Cir.1984). Rather, "the Court granted the Pharmaceutical Defendants' motion for summary judgment, thereby dismissing all of the claims against Defendants Abbott Laboratories, Abbott Laboratories International Co., Abbott Laboratories, Inc., and Knoll Pharmaceuticals Co." This timely appeal followed.

II.

Nearly 100 actions from 18 states were transferred to one district, pursuant

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to 28 U.S.C. § 1407(a), for the purpose of conducting consolidated pretrial proceedings. Plaintiffs argue on appeal that the district court failed to conduct a meaningful choice-of-law review before granting summary judgment in favor of Abbott Labs, and that this case must therefore be remanded. We disagree.

Plaintiffs cite to Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), for the general proposition that "the transferee district court must be obliged to apply the state law that would have been applied if there had been no change of venue." Id. at 618, 84 S.Ct. 805; see also Ferens v. John Deere Co., 494 U.S. 516, 523, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990). Plaintiffs cite to a variety of extra-circuit cases, e.g., In re Air Disaster at Ramstein Air Base, Germany, 81 F.3d 570, 576 (5th Cir.1996); In re Air Crash Disaster Near Chicago, Ill., 644 F.2d 594, 610 (7th Cir.1981), as examples of Multi-District Litigation ("MDL") proceedings wherein the transferee district court analyzed each claim according to the choice-of-law rules or substantive law of the individual claimant's state.

Typically, we review a district court's choice-of-law analysis de novo. See Power-Tek Solutions Servs., LLC v. Techlink,, Inc., 403 F.3d 353, 354 (6th Cir.2005). However, where a party did not raise a choice-of-law argument in district court, it may not do so on appeal. See Mich. Chem. Corp. v. Am. Home Assurance Co., 728 F.2d 374, 377 (6th Cir.1984). In this case, not only did Plaintiffs fail to challenge the court's choice of law, Plaintiffs affirmatively argued that the court need not engage in a choice-of-law analysis to resolve Defendants' motion for summary judgment. In fact, in applying generally applicable statements of law to Plaintiffs' claims, the district court relied on a case, In re TMJ Prods. Liab. Litig., 113 F.3d 1484, 1488-89 (8th Cir.1997), which Plaintiffs brought to the court's attention.

In the course of fashioning the applicable conclusions of law, moreover, the district court consistently erred on the side of caution. For instance, acknowledging a conflict among jurisdictions, the court "presume[d] for purposes of this case that advertisements are sufficient to create express warranties." In re Meridia, 328 F.Supp.2d at 818. Similarly, rather than inquire into whether any state requires expert testimony as to causation, the court "assume[d] arguendo that no states' laws erect such a requirement." Id. at 802.

Plaintiffs did argue before the district court that the learned intermediary doctrine--which shields drug manufacturers from liability when a properly informed professional administers their product--should not apply to the New Jersey plaintiffs. To the extent that New Jersey law applies to any participant in this litigation, Plaintiffs' argument is correct. In Perez v. Wyeth Lab.,, Inc., 161 N.J. 1, 734 A.2d 1245 (1999), the Supreme Court of New Jersey held that the learned intermediary doctrine did not apply where, as here, the product was marketed directly to the consumer. Id. at 1256 ("Consumer-directed advertising of pharmaceuticals ... belies each of the premises on which the learned intermediary doctrine rests."). For the reasons articulated in Part III.A,...

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