Baughn v. Eli Lilly and Co.

• Decision Date: 17 February 2005
• Docket Number: No. CIV.A.03-2626-KHV.,CIV.A.03-2626-KHV.
• Citation: 356 F.Supp.2d 1177
• Parties: Barbara BAUGHN, Plaintiff, v. ELI LILLY AND COMPANY, Defendant.
• Court: U.S. District Court — District of Kansas

356 F.Supp.2d 1177

Barbara BAUGHN, Plaintiff, v. ELI LILLY AND COMPANY, Defendant.

No. CIV.A.03-2626-KHV.

United States District Court, D. Kansas.

February 17, 2005.

Patricia M. Stanford, Jacksonville, FL, Peter S. Obetz, Bartimus, Frickleton, Robertson, & Obetz, P.C., Stephen M. Gorny, Bartimus, Frickleton, Robertson, & Obetz, P.C., Leawood, KS, for Plaintiff.

David W. Brooks, Mark C. Hegarty, John F. Kuckelman, Shook, Hardy & Bacon L.L.P., Kansas City, MO, for Defendant.

ORDER

VRATIL, District Judge.

Barbara Baughn filed this product liability action against Eli Lilly and Company ("Lilly"). Plaintiff alleges that she suffered injuries because her mother took diethylstilbestrol ("DES"), a prescription drug, during her pregnancy with Barbara in 1964 and 1965. This matter is before the Court on Defendant Eli Lilly And Company's Second Motion For Summary Judgment (Doc. # 42) filed October 1, 2004; Plaintiff's Motion To Strike Affidavit Of John F. Kuckelman And Supporting Memorandum Of Law (Doc. # 44) filed October 11, 2004; Plaintiff's Motion To Strike Second Affidavit Of John F. Kuckelman And Supporting Memorandum Of Law (Doc. # 61) filed December 10, 2004; and Plaintiff's Motion To Limit Or Exclude Defendant's Expert Testimony And Memorandum Of Law In Support Thereof (Doc. # 41) filed October 1, 2004. For reasons stated below, the Court overrules all of the motions.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

Factual Background

The following facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiffs.

Barbara Baughn was born on August 19, 1965 in Chanute, Kansas, and has lived in Kansas her entire life. Plaintiff's mother, who was pregnant with Barbara in 1964 and 1965, testified that plaintiff was born one week before her due date. From the second month of pregnancy until plaintiff was born, plaintiff's mother took DES prescribed by Dr. Reuben Burkman. Plaintiff's mother purchased DES at Baker & Burkman Pharmacy in Chanute, Kansas. Dr. Burkman owned Baker & Burkman Pharmacy and the pharmacy was attached to his clinic. Plaintiff's mother took DES four times a day in small round red tablets.

In 1964 and 1965, Lilly made and sold DES in a 25 milligram dosage in round red enteric coated tablets.¹ Lilly's product information recommended a dosage of 25 to 100 milligrams per day for prevention of "accidents of pregnancy."

In 1965, Dr. Burkman prescribed DES on a fairly common basis to prevent miscarriage. Joan Augustine, a nurse, began working for Dr. Burkman in the spring of 1965. Augustine testified that on occasion, she went into the pharmacy to "fix up" a prescription when the pharmacist was gone. Augustine does not recall when she began helping with prescriptions, but she probably did so for some prescriptions in 1965. Augustine cannot recall preparing a prescription for plaintiff's mother — or any other DES prescription — in 1965.

Augustine testified that the pharmacy stocked Lilly DES in little red enteric-coated tablets in 1965, that she recalls only DES from Lilly on the pharmacy shelf, that she believes that the pharmacy carried only DES from Lilly, and that the pharmacy carried a lot of Lilly products. Augustine testified that she cannot recall specifically what dosage the Lilly red DES tablet came in, but that she believed it was one milligram.

Dr. Burkman always had a Physicians' Desk Reference ("PDR") in each examining room. In the PDRs for 1964 and 1965, Lilly's DES advertisements do not mention any risk related to DES during pregnancy, either to the mother or the fetus.²

Plaintiff claims that as a result of her exposure to DES in utero, she suffered pregnancy complications, pregnancy losses and infertility for which she sought medical treatment in Kansas. Barbara did not learn of her claim against defendant until late 2001. On May 8, 2003, Barbara Baughn filed suit against Lilly in the United States District Court for the District of Columbia. On November 7, 2003, pursuant to 28 U.S.C. § 1404(a), the court transferred its case to this Court.

Plaintiff asserts four theories of recovery in this product liability action: negligence, strict liability, breach of warranty and negligent misrepresentation. The parties and the Court agree that Kansas substantive law applies in this case.

In its motion for summary judgment, Lilly argues that (1) plaintiff cannot prove that it manufactured the DES to which she was allegedly exposed and (2) absent proof that Dr. Burkman prescribed only DES manufactured by Lilly, plaintiff cannot rely on the presumption that he would have heeded a different warning by Lilly.

Analysis

I. Lilly As Manufacturer Of The DES Which Plaintiff's Mother Ingested

Defendant argues that plaintiff cannot prove that it manufactured the DES to which she was allegedly exposed. The Court disagrees. Augustine testified that Dr. Burkman commonly prescribed DES in 1965, that the pharmacy stocked Lilly DES in 1965, and that the pharmacy carried a lot of Lilly products. See Augustine Depo. at 41-42, 50-56. Lilly argues that plaintiff cannot establish that in 1965, the pharmacy carried Lilly DES in a 25 milligram tablet. Augustine testified that she cannot recall specifically what dosage the Lilly red DES tablet came in, but that she believes it was one milligram. See Augustine Depo. at 52. Augustine did not exclude the possibility that Lilly's DES was available at the pharmacy in other dosages. Despite Augustine's uncertainty about the precise dosages of DES which the pharmacy dispensed, she recalls only Lilly DES on the pharmacy shelf and she believes that the pharmacy only carried DES from Lilly. Augustine Depo. at 50-56. Combined with plaintiff's mother's testimony that she took a red DES tablet in a 25 milligram dosage which she obtained from the Baker & Burkman Pharmacy, a reasonable jury could conclude that Lilly manufactured the DES which plaintiff's mother ingested in 1965. The Court therefore overrules this portion of defendant's motion for summary judgment.

II. Proximate Cause

In a closely related argument, Lilly argues that absent proof that Dr. Burkman prescribed only Lilly's DES, plaintiff cannot rely on the presumption that Dr. Burkman would have heeded a different warning by Lilly. In order to survive summary judgment, plaintiff must provide evidence that a failure to warn proximately caused her injuries. See Wooderson v. Ortho Pharm. Corp., 235 Kan. 387, 409, 681 P.2d 1038, 1057 (1984); see also Eck v. Parke, Davis & Co., 256 F.3d 1013, 1018 (10th Cir.2001). Kansas law allows a rebuttable presumption of causation once plaintiff establishes that a warning is inadequate. If plaintiff proves that Lilly failed to provide a proper warning, Kansas law presumes that a doctor using that product would have heeded a proper warning. See Wooderson, 235 Kan. at 407, 681 P.2d at 1057. Essentially, the law presumes that but for the inadequate warning, the patient would not have been harmed, since the doctor would have given the patient an adequate warning if the doctor had ever received it, and that the inadequate warning is therefore the cause of the patient's injury. See id. at 409, 681 P.2d at 1057. Defendant may rebut this presumption by establishing that although the prescribing physician would have read and heeded the warning or additional information, the warning would not have changed the course of treatment. See Eck, 256 F.3d at 1019. If Lilly provides credible evidence to rebut the presumption, the...