Bouchard v. American Home Products Corp.

• Decision Date: 30 July 2002
• Docket Number: No. 3:98CV7541.,3:98CV7541.
• Citation: 213 F.Supp.2d 802
• Parties: Sylvia BOUCHARD, Plaintiff, v. AMERICAN HOME PRODUCTS CORP., Defendant.
• Court: U.S. District Court — Northern District of Ohio

Page 802

213 F.Supp.2d 802

Sylvia BOUCHARD, Plaintiff, v. AMERICAN HOME PRODUCTS CORP., Defendant.

No. 3:98CV7541.

United States District Court, N.D. Ohio, Western Division.

July 30, 2002.

COPYRIGHT MATERIAL OMITTED

William Patrick Murray, William H. Bartle, Charles M. Nurray, Margaret M. Murray, Charles M. Murray, Murray & Murray, Sandusky, OH, for Plaintiffs.

Jack B. Harrison, Frost and Jacobs, Cincinnati, OH, William H. Baughman, Weston, Hurd, Fallon, Paisley and Howley, Cleveland, OH, Katherine Armstrong, Skadden, Arps, Slate, Meagher & Flom, New York, NY, for Defendant.

MEMORANDUM OPINION

KATZ, District Judge.

This matter is before the Court on Defendants' motions for partial summary judgment (Doc. Nos. 168 & 202), Defendants' motions in limine to exclude evidence related to Pondimin and primary pulmonary hypertension (Doc. Nos. 166 & 203), Defendants' motion in limine to exclude evidence related to the FDA (Doc. Nos. 167 & 201), Defendants' renewed motions to exclude the expert testimony of Grover Hutchins, M.D. (Doc. Nos. 177 & 178), and Plaintiffs' motion to prohibit ex parte contact with certain witnesses (182). This Court has jurisdiction pursuant to 28 U.S.C. § 1332.

BACKGROUND

Plaintiff Sylvia Bouchard alleges that from December 1996 to July 1997 she consumed the diet drug dexfenfluramine hydrochloride.¹ Also known as Redux, dexfenfluramine hydrochloride was a prescription drug marketed by Defendant American Home Products ("AHP"). AHP's name has since been changed to "Wyeth." Interneuron Pharmaceuticals, which had acquired the right to develop Redux in 1992, is also a Defendant in this action; its name has been changed to Indevus Pharmaceuticals, Inc.²

Bouchard filed a complaint in this Court on September 15, 1998. She claimed that her ingestion of Redux had resulted in a number of physical impairments, including cardiac valvular abnormalities, brain damage, and primary pulmonary hypertension. The matter was stayed in this forum and transferred to the Honorable Louis J. Bechtle, Judge of the United States District Court for the Eastern District of Pennsylvania, who was administering multidistrict litigation proceeding No. MDL 1203. In December 1998, Bouchard's aortic and mitral heart valves exhibited significant regurgitation and had to be replaced with mechanical valves. Her case was remanded to this Court on June 22, 2001.

Wyeth has filed motions to exclude the following evidence at trial:

1. Evidence intended to show that Wyeth misled the FDA with respect to labeling information and other disclosures;

2. Evidence related to the drug Pondimin and the condition of primary pulmonary hypertension ("PPH"); and

3. Expert testimony offered by Grover Hutchins, M.D.

Wyeth has also filed a motion for summary judgment. It argues that it is entitled to summary judgment on a number of Bouchard's injury claims because Bouchard is unable to show that she suffers from those injuries or that the use of Redux caused them.

Finally, on June 25, 2002, Bouchard filed a motion requesting an order prohibiting Wyeth from contacting her treating physicians ex parte. She claims that such contact is prohibited by the physician-patient privilege codified in O.R.C. § 2317.02.

All of the motions have been fully briefed and are ripe for decision. Further facts and allegations specific to each motion will be developed as necessary.

DISCUSSION

I. Bouchard's Motion to Prohibit Ex Parte Contact with Physicians

Bouchard claims that she discovered on April 3, 2002, that Wyeth intended to meet with Dr. Ratliff, a pathologist at the Cleveland Clinic. On June 24, 2002, Bouchard's counsel met with Ratliff "to answer any questions he had regarding his testimony." Bouchard's counsel discovered that Ratliff was scheduled to meet with Wyeth's counsel on June 27, 2002, to discuss a deposition scheduled for the next day.³

Bouchard claims that the ex parte communications intended by Wyeth violate Ohio's prohibition against contacting treating physicians directly. See Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395, 409, 715 N.E.2d 518 (Cook, J., concurring); O.R.C. 2317.02. She claims that this prohibition exists even though Wyeth named Ratliff as a witness.

Wyeth has opposed the motion. It argues contact with a treating physician is permitted where the patient has waived the physician-patient privilege by filing a lawsuit. Furthermore, Wyeth points out that Dr. Ratliff has his own attorney, and is fully capable of authorizing his own meetings. Wyeth further claims that Ratliff is its witness and that it therefore should be allowed to discuss matters with him prior to deposition. Finally, Wyeth contends that Ratliff is not really Bouchard's treating physician, since all that he has done is view pathology slides related to her case; furthermore, Wyeth claims that Bouchard has already authorized Ratliff to give Wyeth the information that Ratliff developed from viewing Bouchard's slides.

At least one Ohio appellate court has concluded in an unreported decision that a pathologist who reviews tissues is not a "treating physician" for the purposes of the physician-patient privilege. See Bowling v. Baden, 1990 WL 14807 (Ohio App. 12th Dist. Feb. 20, 1990). That appears to be the case here.

The only Ohio precedent that Plaintiff has offered is a concurring opinion in the Ohio Supreme Court, Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395, 409, 715 N.E.2d 518 (Cook, J., concurring). That is insufficient to prevent a meeting between Wyeth and a physician such as Ratliff. If, as the Plaintiff claims, Ratliff is a treating physician, and a meeting between Wyeth and Ratliff would expose them to tort liability, that is an issue that will likely have to be addressed through a separate suit. Bouchard's motion will be denied.

II. Wyeth's Motion for Partial Summary Judgment

A. Summary Judgment Standard

As an initial matter, the Court sets forth the relative burdens of the parties once a motion for summary judgment is made. Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Of course, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2553. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c).

B. Wyeth's Argument

Wyeth claims that it is entitled to summary judgment on Bouchard's claims that her use of Redux resulted in neurological injury, Primary Pulmonary Hypertension (PPH), an increased risk of developing PPH in the future, elevations of pulmonary pressure, and onset or exacerbation of coronary artery disease. For the reasons below, the motion will be granted.

1. Bouchard's Burden of Proof

Because Bouchard's action is based on strict liability in tort, she must prove that her "damage or injury was directly and proximately caused by the product defect." R.H. Macy & Co., Inc. v. Otis Elevator Co., 51 Ohio St.3d 108, 554 N.E.2d 1313, 1316 (1990). That is, Bouchard must demonstrate both that Redux was capable of causing the injury she alleges and that Redux did indeed cause her injury. A jury should not be allowed to speculate as to causation, and to eliminate that speculation an expert witness may be necessary. See Turpin v. Merrell Dow Pharm., Inc., 959 F.2d 1349 (6th Cir.1992). Opinions on causation must be expressed in terms of probability, see Stinson v. England, 69 Ohio St.3d 451, 633 N.E.2d 532, 537 (1994), and such an opinion must state that the expert's theory of causation is "more probable than not." See Turpin, 959 F.2d at 1350.

2. Neurological Injury

In her complaint, Bouchard requests that Wyeth be required to inform her of all "brain damage" incidents involving Redux. Wyeth argues that Bouchard is unable to show that she suffers from a neurological deficit; even assuming that Bouchard does suffer from brain damage, Wyeth contends that she is unable to put forth evidence to show that the brain damage was caused by her use of Redux. Wyeth has, therefore, requested that summary judgment be entered in its favor on any claims Bouchard may raise based on brain damage.

In her response to the motion for summary judgment, Bouchard argues that she suffers from memory loss as a result of the medical care that she required because she used Redux. Specifically, she argues that Redux caused valvular heart disease, which, in turn, required open-heart surgery. Bouchard concludes...