Albright v. Upjohn Co.
| Decision Date | 24 April 1986 |
| Docket Number | No. 85-5256,85-5256 |
| Citation | 788 F.2d 1217 |
| Parties | , 5 Fed.R.Serv.3d 786 Robin L. ALBRIGHT, Plaintiff-Appellee, v. The UPJOHN COMPANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Winfrey P. Blackburn, Jr., W. Kennedy Simpson, Stites and Harbison, Louisville, Ky., Peter A. Copeland, argued, The Upjohn Co. Kalamazoo, Mich., for defendant-appellant.
Carl A. Pallo, Joseph J. Golden, argued, Louisville, Ky., for plaintiff-appellee.
Before KRUPANSKY and GUY, Circuit Judges; and PECK, Senior Circuit Judge.
This case involves an appeal from an order of the district court denying defendant-appellant's motion for sanctions under Fed.R.Civ.P. 11. For the reasons set forth below, we reverse and remand to the district court for the imposition of sanctions.
On September 21, 1983, attorneys for plaintiff-appellee Robin L. Albright filed this products liability action in the United States District Court for the Western District of Kentucky against nine pharmaceutical manufacturers and unknown defendants. On the same day, seven other actions were filed by the same attorneys on behalf of different plaintiffs against the same nine manufacturers. These defendants were involved in the manufacture, sale and distribution of tetracycline-based drugs, which allegedly had caused the permanent staining and discoloration of each plaintiff's teeth. Litigation proceeded pursuant to Local Rule 19 governing complex litigation because the case involved more than five defendants.
In her complaint, Albright alleged that while an infant and during her teeth-forming years she ingested drugs which had a tetracycline base, and that said drugs were manufactured, publicized, distributed and sold by the named defendants and possible unknown defendants who may have been in the same business. She alleged that each of the defendants was strictly liable to her for all adverse consequences and injuries resulting from the use of said drugs. Albright further stated that she did not know the brand name or manufacturer of the particular drugs she ingested which caused discoloration of her teeth, "but one or more of the Defendants herein did manufacture, publicize, distribute and sell said drugs so used and ingested by Plaintiff." She alleged that the manufacturers of tetracycline-based drugs engaged in "conscious parallelism" in that their actions "had the effect of substantially aiding or encouraging each other's failure to adequately warn." Albright alleged that the defendants were jointly and severally liable to her, and because she did not know which of the defendants manufactured, sold and distributed the drugs which she ingested, she claimed that the burden was upon each defendant to exculpate itself by proving that its drug did not cause her injuries. Finally, Albright stated that she first discovered that her injuries and damages were caused by tetracycline-based drugs on September 22, 1982, when an article concerning another lawsuit filed against tetracycline manufacturers appeared in a local newspaper.
Following the first pretrial conference, Upjohn and other defendants served Albright with interrogatories and a request for production of documents. Albright responded that Attached to Albright's answers to interrogatories were all medical records in her possession. The records of Dr. Kidd showed that he had prescribed for Albright between 1962 and 1967 the tetracycline-based drugs Tetrex, Declomycin and Mysteclin-F. 1 Also attached were the medical records of Dr. Carroll Witten, which revealed that he had prescribed Terramycin 2 for Albright in 1974, when she was almost fourteen years old. In her answers to interrogatories, Albright indicated that she had also been treated by a Dr. Wolf who performed a tonsillectomy in 1966 or 1967, but that she did not know the location of Dr. Wolf's records. Dr. Wolf is deceased and the surgery had been performed at St. Joseph's Hospital, which had closed. Albright further responded that she had been treated by Dr. E.J. Fruehwald sometime between 1961 and 1963 for tonsilitis and that she also was unable to locate those records. Albright's answers to interrogatories included a signed authorization permitting the defendants to obtain her medical records from all of her physicians.
On June 8, 1984, Upjohn and four other defendants moved for summary judgment on the grounds that they had not been identified as manufacturers, distributors or sellers of any tetracycline drugs taken by Albright. On July 9, 1984, the court entered an order giving Albright sixty days within which to file an amended complaint. Albright never responded to the defendants' motion for summary judgment. Instead, on August 28, 1984, Albright filed an amended complaint in which only three tetracycline-based drug manufacturers were named as defendants. The three remaining defendants were the manufacturers of the tetracycline-based drugs prescribed to Albright by Dr. Kidd; these manufacturers had not joined in the motion for summary judgment. On September 13, 1984, the court granted Upjohn and its codefendants' motion for summary judgment and dismissed all claims against them with prejudice. On September 24, 1984, Upjohn moved the court to alter the September 13th judgment to include an award of expenses, including attorney fees, pursuant to Federal Rule of Civil Procedure 11. The district court denied Upjohn's motion to amend, and Upjohn now appeals from the denial of that motion. 3
Federal Rule of Civil Procedure 11, as amended effective August 1, 1983, provides in part:
Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated.... The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
Appellant Upjohn argues that counsel for Albright violated Rule 11 by failing to conduct a reasonable prefiling investigation of the facts. Upjohn points out that counsel for Albright received the relevant medical records from Dr. Kidd in November 1982, and at that time became aware that Albright had ingested Tetrex, Declomycin and Mysteclin-F. Upjohn suggests that Albright's attorneys had ample time to investigate her claim because eleven months elapsed from the time Albright's cause of action accrued and the date the complaint was filed, and medical records were obtained from Dr. Kidd ten months before filing; Upjohn asserts that the intervening time period was sufficient to locate any other medical records or to confirm their nonexistence. Upjohn states that the information needed to identify the proper defendants in this case was not confusing or complex, and that the three attorneys who signed the complaint were experienced litigators who had prosecuted other tetracycline products liability actions. Thus, Upjohn urges, an adequate prefiling investigation could have been conducted without much difficulty. Upjohn submits that Albright's attorneys intentionally shifted both the burden of proof as well as the cost of product identification to the defendants. Upjohn claims that the failure of Albright's counsel to conduct reasonable prefiling inquiry has caused Upjohn unnecessary litigation expenses and resulted in a delay of discovery for the remaining parties.
Albright 4 contends that the facts of this case demonstrate that reasonable inquiry was made by her attorneys before the filing of the complaint. The circumstances relied upon by Albright in support of her contention that her attorneys met the standard of Rule 11 include the facts that eight tetracycline product liability suits were filed on the same day; that the medical records were old and often illegible; that the records of the deceased Dr. Wolf were lost; that efforts to determine the existence or nonexistence of Dr. Fruehwald's records were ongoing; that the records sought were from numerous doctors and were approximately 20-25 years old; and that Upjohn was known to be a leading defendant in such actions. 5
Upjohn responds that merely because seven other similar cases were filed on the same day does not excuse Albright's attorneys from meeting the demands of Rule 11. Finally, Upjohn asserts that just because it had been a defendant in other tetracycline suits did not relieve Albright's attorneys of their obligation to investigate whether Upjohn was a proper defendant in the instant action.
Rule 11 was amended in 1983 "to reduce the reluctance of courts to impose sanctions.... by emphasizing the responsibilities of the attorney and reenforcing those obligations by the imposition of sanctions." Advisory Committee Note, ...
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