Ehlis v. Shire Richwood, Inc.

Decision Date13 November 2002
Docket NumberCivil No. A2-00-134.
Citation233 F.Supp.2d 1189
PartiesRyan P. EHLIS, et al., Plaintiffs, v. SHIRE RICHWOOD, INC. and Shire Pharmaceuticals Group, plc, Defendants.
CourtU.S. District Court — District of North Dakota

Richard A. Clapp, Erin M. Diaz, Pearson, Christensen, Clapp, Fiedler, Fisher & Jensen, Grand Forks, ND, Barry P. Hogan, Nilles Hansen & Davies, Ltd. Moorhead, MN, Andy Vickery, Arnold Anderson Vickery Law Office, Paul Waldner, Waldner & Associates, Houston, TX, for Plaintiffs.

Randall Shane Hanson, Patrick J. Maddock, Camrud, Maddock, Olson & Larson, Ltd, Grand Forks, ND, Joseph P. Thomas, Shannon J. Cook, Ulmer & Berne, Cincinnati, OH, for Defendants.

MEMORANDUM AND ORDER

KLEIN, United States Magistrate Judge.

Plaintiffs filed this product liability, personal injury and wrongful death case against defendants, alleging that Ryan Ehlis's ("Ehlis") ingestion of Adderall®, a prescription pharmaceutical, was responsible for Ehlis's actions in taking the life of his five week old daughter Tyra. A hearing on the parties' cross motions for summary judgment was held on August 13, 2002. At the time of the hearing, the court took the matter under advisement. Approximately two weeks later a telephone conference was held for the purpose of scheduling. At that time the court advised the parties of its inclination to grant defendants' motion for summary judgment, dismissing the action entirely, obviating the need for trial. That inclination was solidified by further review and research, culminating in this order granting defendants' Motion for Summary Judgment.

Brief Factual Background

Ehlis was a student at the University of North Dakota. Because he was experiencing some difficulty with a class, Ehlis sought the assistance of Dr. Thomas Peterson, a licensed psychiatrist. Ehlis informed Dr. Peterson during an office visit that as a child he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and had taken Ritalin. After an approximately 45 minute office visit, Dr. Peterson confirmed the diagnosis and prescribed Adderall®. Adderall® is the brand name of a Food and Drug Administration ("FDA") approved pharmaceutical containing amphetamine salts, manufactured and marketed for the treatment of ADHD in children and narcolepsy in adults.

Ehlis took his first dose of Adderall® shortly after receiving the prescription. Apparently he took the second dose about four hours later. Ehlis testified that he took the dosage prescribed by Dr. Peterson on two subsequent days, but reduced the dosage because of the "strong" effect the medication had on him. Ehlis further stated that he took no medication on the weekend, and felt normal. Ehlis then testified that he resumed taking the medication as prescribed, until Friday morning of the following week, when he ingested the remaining pills of the 30 day prescription. His significant other and mother of his children, Angie Moreno ("Moreno"), testified somewhat to the contrary as to the amount of medication Ehlis was taking at any given time. Further, she told police that Ehlis was not acting himself the very first day he took Adderall®. She also testified that Ehlis would wake up frightened and she would give him his Adderall® to calm him down. At no time did either Ehlis or Moreno contact Dr. Peterson to discuss with him the symptoms Ehlis was experiencing from the medication.

Ehlis testified that he began experiencing delusions and hallucinations. He also claims he had several "out-of-body" experiences while taking the medication, including talking to his dead grandfather and talking with God. Ehlis claims that he shot his daughter, and then turned the gun on himself, on direct orders from God. Ehlis was charged with the murder of his daughter, but the charges were dismissed upon confirmation that Ehlis suffered from an "Amphetamine-Induced Psychotic Disorder" and did not have the requisite criminal responsibility.

Plaintiffs commenced this lawsuit against the manufacturers of Adderall®, alleging defendants knew that the drug Adderall® sometimes induces psychosis and failed to properly and adequately warn of the risks associated with its ingestion. In addition, plaintiffs assert that defendants engaged in illegal marketing and advertising of the drug, and promoted the drug containing hidden warnings.

Motion For Reconsideration of Order Granting Amendment

Defendants seek clarification of this court's order dated June 5, 2002 granting plaintiffs' motion to amend their complaint to add a claim of strict liability under §§ 519 and 520 of the Restatement (Second) of Torts, asserting that defendants are strictly liable because they engaged in an abnormally dangerous activity. The court ruled in favor of the plaintiffs, citing to Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 618 N.W.2d 827, 834-35 (2000), which contains an extensive discussion of the applicability of comment k to § 402 of the Restatement (Second). Defendants respectfully assert the court misconstrued the plaintiffs' claims and that the court's opinion addresses unavoidably unsafe products under the Restatement (Second) of Torts § 402A, comment k, whereas the plaintiffs' motion to amend addresses abnormally dangerous activities under §§ 519 and 520 of the Restatement. The defendants further assert that several courts have held these sections inapplicable to the manufacture and sale of pharmaceutical products, Reeder v. Hammond, 125 Mich.App. 223, 336 N.W.2d 3 (1983); Gaston v. Hunter, 121 Ariz. 33, 588 P.2d 326 (1978), although North Dakota has neither specifically adopted nor rejected the provisions. See Wirth v. Mayrath Industries, Inc., 278 N.W.2d 789 (N.D.1979). Plaintiffs admit as much, stating, "Sections 519-520 of the Restatement (Second) have been adopted by many jurisdictions, and the best Erie prediction that can be made in the case at hand is that such sections are also applicable in North Dakota." However, plaintiffs fail to cite to any cases which have specifically held §§ 519 and 520 are applicable to the sale and manufacture of pharmaceutical drugs.

The court has again reviewed the parties' pleadings, their submission with respect to plaintiffs' motion to amend, and the Freemen decision in its entirety. After careful consideration, the court is prepared to rescind its prior order granting the amendment permitting plaintiffs to assert a claim pursuant to §§ 519 and 520 of the Restatement (Second) of Torts. Plaintiffs' original complaint contained a claim for strict liability under § 402A. This court's order did nothing more than affirm plaintiff's right to proceed under that section, and suggested that comment k provides an affirmative defense rather than provides absolute immunity, which has been asserted by defendants. Further, defendants are essentially correct that the court's June 5 order does not specifically address whether §§ 519 and 520 form a basis for liability in this case. It is to this issue the court now turns.

Plaintiffs' amendment seeks to assert a claim that defendants are strictly liable for engaging in an "abnormally dangerous" or "ultrahazardous" activity pursuant §§ 519 and 520 of the Restatement (Second) of Torts. Section 519 provides:

§ 519. General Principle.

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Section 520 contains the factors to be considered in determining whether an activity is abnormally dangerous. This section provides:

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) Existence of a high degree of risk harm to persons, land or chattels of others;

(b) Likelihood that the harm that results from it will be great;

(c) Inability to eliminate the risk by the exercise of reasonable care;

(d) Extent to which the activity is not a matter of common usage;

(e) Inappropriateness of the activity to the place where it is carried on; and

(f) Extent to which its value to the community is outweighed by its dangerous attributes.

As the court recognized in Progar v. The Washington Hospital, there are a multiplicity of situations in which absolute liability has been found to apply, ranging from blasting, an oil drilling situation not unlike dynamite blasting, dam breaking, the storage of explosives, and even against "one who suffered his baboon to escape." 49 Pa. D. & C.2d 485, 488-89 (1970). These types of cases all have a common thread. However, the application of absolute liability to the realm of pharmaceutical products is glaringly absent, and has specifically been refused in its application to the production of new drugs. See Gaston v. Hunter, 121 Ariz. 33, 48, 588 P.2d 326, 341 (1978) (The rules relating to "ultrahazardous" or "abnormally dangerous" activities are inapplicable to the "production of new drugs").

In Reeder v. Hammond, 125 Mich.App. 223, 336 N.W.2d 3, 6 (1983), cited by the defendants, plaintiffs appealed the trial court's denial of their motion to file a second amended complaint to add a new theory of liability (something defendants argue plaintiffs are now attempting to do in this case). In Reeder, plaintiffs believed that if they could prove that the manufacture of the pharmaceutical Biphetamine and birth control pills constitutes an ultrahazardous activity, "then defendants owe a duty to the consumer to warn of any risks associated with the use of their products." The appellate court held, given the Michigan Supreme Court's decision in Smith v. ER Squibb & Sons, Inc., 405 Mich. 79, 88, 273 N.W.2d 476, 479 (1979), the district court did not err in refusing the amendment "since the proffered theory of liability was without merit." Reeder, ...

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