Giles v. Wyeth, Inc., 04-cv-4245-JPG.

• Decision Date: 20 June 2007
• Docket Number: No. 04-cv-4245-JPG.,04-cv-4245-JPG.
• Citation: 500 F.Supp.2d 1063
• Parties: Jacquelyn GILES, Individually and as Special Administrator of the Estate of Jeff Giles, Deceased, Plaintiff, v. WYETH INC, a Delaware Corporation and its wholly-owned subsidiary, Wyeth Pharmaceuticals, formerly known as American Home Products Corporation, Defendants.
• Court: U.S. District Court — Southern District of Illinois

Page 1063

500 F.Supp.2d 1063

Jacquelyn GILES, Individually and as Special Administrator of the Estate of Jeff Giles, Deceased, Plaintiff, v. WYETH INC, a Delaware Corporation and its wholly-owned subsidiary, Wyeth Pharmaceuticals, formerly known as American Home Products Corporation, Defendants.

No. 04-cv-4245-JPG.

United States District Court, S.D. Illinois.

June 20, 2007.

Stephen W. Stone, Howerton, Dorris & Stone, Marion, IL, Mark A. Kochan, Kochan & Kochan, Herrin, IL, Paul F. Waldner, Vickery & Waldner, LLP, Houston, TX, Rebecca L. Dumas, Vickery & Waldner, LLP, Houston, TX, for Plaintiffs.

David B. Alden, Jones Day — Cleveland, Cleveland, OH, Larry E. Hepler, Hepler, Broom, MacDonald, Hebrank, True & Noce LLC, Edwardsville, IL, Mark Herrmann, Jones, Day et al. — Cleveland, Cleveland, OH, Robin L. Juni, Jones, Day et al. — Washington, Washington, DC, Terence M. Murphy, Jones Day — Dallas, Dallas, TX, W. Jason Rankin, Hepler, Broom, MacDonald, Hebrank, True & Noce LLC, Edwardsville, IL, Amber B. Shushan, Jones, Day et al. — Atlanta, Atlanta, GA, Beth A. Bauer, Hepler Broom et al. Edwardsville, Edwardsville, IL, David S. Rutkowski, Jones, Day et al. — Washington, Washington, DC, Junius C. McElveen, Jr., Jones, Day et al. — Washington, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

GILBERT, District Judge.

I. Introduction

On October 30, 2002, Jeff Giles (Jeff) drove to a rural road, stopped his car, and shot himself in the heart with his shotgun. Two days earlier, Jeff had started taking Wyeth's antidepressant drug, Effexor. Jacquelyn Giles (Giles), Jeff's widow, contends that Effexor caused her husband to commit suicide.

In her complaint, Giles alleges that Jeff was a member of a "small vulnerable sub population" in whom Effexor and other selective serotonin reuptake inhibitors (SSRIs) and selective seratonin norepinephrine reuptake inhibitors (SNRIs) increase the risk for violence and suicide. Giles brings this action against Wyeth¹, the manufacturer of Effexor, alleging that it has known about this small vulnerable subpopulation for years, but "has failed to conduct any prospective tests to determine the frequency of this phenomenon or to develop means of identifying, screening, and protecting those patients who are in this risk group." (Sec. Amend. Compl. at 3). Giles argues that Wyeth should have warned doctors, pharmacists, and patients about this risk.

Giles alleges Wyeth has "utilized material misrepresentations to promote and market Effexor, inter alia via the practice of `ghost writing' scientific articles for publication under the names of prominent academic `authors' and by making false and misleading statements regarding the efficacy and superiority of Effexor, viz. a viz. its competitors." (Sec. Amend. Comp. at 3). She has set forth three, alternative theories of liability under Illinois law. First, she claims Wyeth is strictly liable for marketing defects and misrepresentations. Second, she states a claim for negligence predicated on Wyeth's "failure to warn, failure to test, failure to implement appropriate patient screening mechanisms, negligent misrepresentations, and over-promotion of Effexor." (Sec. Amend. Compl. at 5). Finally, Giles claims Wyeth is liable for breach of express and implied warranties.

Wyeth has filed a motion for partial summary judgment on Giles's failure to warn and breach of express warranty claims (Doc. 86). Giles has responded to Wyeth's motion (Doc. 103) and Wyeth has replied to her response (Doc. 107).

II. Background

In 1995, Jeff was injured when a rock fell on his head while he was working in a coal mine. Though the injury caused him substantial pain, he continued to work after the injury. By 2002, however, the pain was too much, so, Jeff had surgery that September. The surgery was successful and Jeff's prognosis good.

Jeff went to his doctor, Dr. Pramote Anantachai (Dr. Pramote), on October 28, 2002, complaining that he was tired, unmotivated, and depressed. Dr. Pramote concluded that Jeff had depression and prescribed Effexor. Dr. Pramote did not record — and does not really remember — what he told Jeff about Effexor, but he tells all patients to whom he prescribes antidepressants standard things. Dr. Pramote saw no evidence that Jeff was suicidal. If he had been, Dr. Pramote would have sent Jeff to the emergency room immediately.

Since Jeff's suicide, Dr. Pramote has received several suicide-related warnings or precautions on Effexor. In August 2003 and in June 2004, he received "Dear Doctor" letters from Wyeth warning of the risk of suicide in adolescents and adults. He also reviewed the "black-box" suicide warning placed on the drug after January 2005. The parties dispute the nature of the warnings Dr. Pramote has given to patients since Jeff's suicide. It is unclear from the record whether he has continued to prescribe Effexor to first-time users since Jeff's death.

III. Standard

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir.2000). In determining the existence of a genuine dispute of material fact, the Court construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Spath, 211 F.3d at 396.

If the moving party meets its burden, the nonmoving party has the burden "to go beyond the pleadings and affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Borello v. Allison, 446 F.3d 742, 748 (7th Cir.2006) (internal quotation marks and citations omitted); Celotex, 477 U.S. at 322-26, 106 S.Ct. 2548; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir.1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, 106 S.Ct. 2505, or by "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, 89 L.Ed.2d 538 (1986). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Insolia v. Philip Morris Inc., 216 F.3d 596 (7th Cir.2000).

III. Analysis

A. Failure to Warn

Wyeth contends that it is entitled to summary judgment on Giles's failure to warn claim because Dr. Pramote's actions and deposition testimony show that he would not have changed his conduct if he had received a warning from Wyeth before prescribing Effexor to Jeff. In response, Giles argues that Wyeth's failure to provide an adequate warning entitles her to a presumption that Pramote would have heeded the warning — in essence, a presumption of causation. Alternatively, Giles maintains that Dr. Pramote's testimony demonstrates that he would have heeded a warning if he had received one. For reasons that will become clear after a thorough analysis of the law, granting Wyeth summary judgment based on its counterfactual is troublesome.

To state a failure to warn claim against a pharmaceutical manufacturer under Illinois law, a plaintiff must establish that the defendant had a duty to warn (i.e., that defendant's drug caused the injury in question), that the defendant knew or should have known that the drug could cause the plaintiff's injury, that the failure to provide the necessary information made the warning inadequate, that the drug was "`defective' and that this defect was the proximate cause of plaintiff's injuries." N. Trust Co. v. Upjohn Co., 213 Ill.App.3d 390, 157 Ill.Dec. 566, 572 N.E.2d 1030, 1037 (1991); Erickson v. Baxter Healthcare, Inc., 151 F.Supp.2d 952, 962 (N.D.Ill. 2001). In the case of prescription pharmaceuticals, the manufacturer's duty to warn is to the physician, not to the consumer of the medication; the physician, in turn, has the duty to warn his patient. Kirk v. Michael Reese Hosp. & Med. Ctr., 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 392 (1987); Hansen v. Baxter Healthcare Corp., 198 Ill.2d 420, 261 Ill.Dec. 744, 764 N.E.2d 35, 42 (2002); Erickson, 151 F.Supp.2d at 962. This is called the learned intermediary doctrine.

Some states apply a "heeding presumption" in learned intermediary cases. In these states, a court "presumes that warnings, if given, will be heeded and followed and that medical practitioners will act competently." Mahr v. G.D. Searle & Co., 72 Ill.App.3d 540, 28 Ill.Dec. 624, 390 N.E.2d 1214, 1233 (1979) (applying Texas law); Lambert v. B.P. Prods. N. Am., Inc., No. 04-347, 2006 WL 924988, *5 (S.D.Ill. Apr.6, 2006) (applying Arizona law); Willett v. Baxter Intern., Inc., 929 F.2d 1094, 1099 (5th Cir.1991).

While Mahr v. G.D. Searle & Co., cited above, was an Illinois case where the court applied Texas law, 28 Ill.Dec. 624, 390 N.E.2d at 1233, at least one judge in the Northern District of Illinois has found that the heeding presumption applies in Illinois, citing Mahr. Erickson, 151 F.Supp.2d at 970. As the Court will discuss below, the holdings of the Supreme Court of Illinois are consistent with Erickson in this regard.

Whether the heeding presumption applies or not is not the real dispute in this case. What the parties really dispute is the heeding presumption's effect on the elements of the failure to warn cause of action. The briefs essentially pose a choice between the position adopted in Mahr, that is, "What the doctor might or might not have done...