Kelley v. Eli Lilly and Co.

• Decision Date: 27 April 2007
• Docket Number: Civil Action No. 05-CV-1882 (RCL).
• Citation: 517 F.Supp.2d 99
• Parties: Melissa KELLEY, Plaintiff, v. ELI LILLY AND COMPANY, Defendant.
• Court: U.S. District Court — District of Columbia

517 F.Supp.2d 99

Melissa KELLEY, Plaintiff, v. ELI LILLY AND COMPANY, Defendant.

Civil Action No. 05-CV-1882 (RCL).

United States District Court, District of Columbia.

April 27, 2007.

COPYRIGHT MATERIAL OMITTED

Aaron M. Levine, Brandon J. Levine, Renee Lynne Robinson-Meyer, Steven Jay Lewis, Aaron M. Levine & Associates, P.A., Washington, DC, for Plaintiff.

Lawrence Hedrick Martin, James J. Dillon, Foley Hoag LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, District Judge.

This matter comes before the Court on the defendant's Motion [12] for Summary Judgment. Upon consideration of the defendant's motion, the plaintiff's opposition [14] thereto, the defendant's reply [21] brief, the applicable law, and the entire record herein, the Court concludes that the defendant's motion will be GRANTED. The Court's reasoning is set forth below.

BACKGROUND

While living in Massachusetts, pregnant with the plaintiff, the plaintiff's mother was allegedly prescribed Diethylstilbestrol ("DES") by Dr. Safon in 1970 and 1971. (Def.Mot.3.) The plaintiff's mother was allegedly prescribed DES even through she was not experiencing any unusual symptoms during her pregnancy. (Id.) The plaintiff was subsequently born at the Boston Hospital for Women, in Boston, Massachusetts, on August 24, 1971. (Id.) The physician who allegedly prescribed DES to the plaintiff's mother, Dr. Safon, is now deceased. (Id.) According to both parties, there are no medical records demonstrating that Dr. Safon prescribed to the plaintiff's mother the defendant's DES, as opposed to a generic prescription or a specific prescription for another drug company's brand of DES. (Id.) In fact, both parties agree that there are no medical records or prescription records demonstrating that Dr. Safon prescribed the plaintiff's mother DES at all. (Id.)

The drug DES itself was never proprietary to any company. (Id. at 4.) During the time period that the plaintiff's mother allegedly ingested DES, there were only 6-8 national companies that produced DES and a number of companies who acted as local rebottlers, selling DES regionally. (Pl. Reply Br. 6.) Federal Regulations at the time of the plaintiff's mother's pregnancy required all manufacturers of prescription medications, such as DES, to provide instructions and warnings for physicians on prescription medications that could only be obtained through the order of a licensed medical practitioner. (Id.) The defendant, in producing its product literature never expressly rejected its use in pregnant women, having made reference to the use of DES in pregnant women no less than five times without warning or the risks or advising against its use during pregnancy. (Id. 6-7.)

Furthermore, the plaintiff has a letter, which if all inferences are given to the plaintiff, states that DES labeling was industry wide, with the defendant taking the lead with the Food and Drug Administration. (Id. at 7.) With the testimony of Dr. Richard Falk, the plaintiff contends that the defendant should have known and warned of the dangers of DES by 1953. (Id.) Through the testimony of Dr. Julius Piver, the plaintiff contends that had warnings regarding the dangers of taking DES during pregnancy, it would have been a departure from the standard of care for an obstetrician to prescribe DES to a pregnant woman. (Id.)

The defendant contends and the plaintiff admits that the plaintiff has provided no evidence that Dr. Safon ever read or consulted the defendant's product warnings and literature in determining whether or not to prescribe a medication to the plaintiff s mother. (Id.) However, the plaintiff has a statement from the Pharmacist, Steven Baker, who worked at the Drug Fair Pharmacy where the plaintiff's mother allegedly filled her DES prescriptions during the relevant time period. The plaintiff states Mr. Baker would testify that if a woman came into the pharmacy during the relevant time period with a prescription for "DES," "Stilbestrol," or "Diethylstilbestrol," the defendant's brand would have been dispensed.

The defendant now comes before the Court asking for its motion for summary judgment to be granted on all counts. The defendant argues that they are entitled to summary judgment as a matter of law because the plaintiff cannot come forward with any evidence that her mother's treating and prescribing physicians read or relied on any warnings or statements made by the defendant in deciding to prescribe the defendant's product to the plaintiff's mother.

DISCUSSION

1. Choice of Law

Before this Court can address the defendant's motion for summary judgment on its merits, the Court must first determine the applicable law in this case. The basis for jurisdiction in this case is diversity of citizenship, pursuant to 28 U.S.C. § 1332(a)(1), and thus state law provides the substantive rules of law for this case. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In deciding which substantive rules of law to apply, Federal courts must apply the choice of law rules of the jurisdiction in which it sits. Eli Lilly & Co. v. Home Ins. Co., 764 F.2d 876, 882 (D.C.Cir.1985), cert. denied 479 U.S. 1060, 107 S.Ct. 940, 93 L.Ed.2d 990, 991 (citing Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). In past DES cases, this Court has applied the choice of law principles based on the interest analysis theory and/or the lex loci delicti theory, as in where the injury occurred. Tidier v. Eli Lilly Co., 95 F.R.D. 332, 334-335 (D.D.C.1982). Under both of these choice of law principles, the proper choice of law in this case would be Massachusetts state law.

Under the interest analysis theory, also known as the governmental interest analysis, there is an evaluation of the governmental policies underlying the applicable laws and a determination of which jurisdiction's policy would be more advanced by the application of its law to the facts of the case under review. District of Columbia v. Coleman, 667 A.2d 811, 816 (D.C., 1995) (citing Hercules & Co. v. Shama Restaurant, 566 A.2d 31, 40-41 (D.C.1989)). In making this evaluation, the District of Columbia has relied in part on the four factors enumerated in the Restatement (Second) of Conflict of Laws § 145: a) the place where the injury occurred; b) the place where the conduct causing the injury occurred; c) the domicile, residence, nationality, place of incorporation and place of business of the parties; and d) the place where the relationship is centered. Id. (citing Estrada v. Potomac Elec. Power Co., 488 A.2d 1359, 1361 n. 2 (D.C.1985)). Part of the test for determining which jurisdiction's policy would be best advanced is determining which jurisdiction has the most significant relationship to the dispute. Id. (citing Hercules, 566 A.2d at 41 n. 18) (explaining parenthetically that the governmental interests test and the most significant relationship test have sometimes been treated as separate approaches to choice of law questions, but the courts have applied a constructive blending of the two approaches).

In the present case, the plaintiff's exposure to DES took place in Massachusetts. (Def.Mot.6-7.) Massachusetts was also: where the plaintiff's mother lived during the time of her pregnancy; where she was allegedly prescribed DES; where the mother allegedly filled her DES prescriptions; and ultimately the place where the plaintiff was born. (Id.) In light of these facts as applicable under both the interest analysis theory and lex loci delicti theory, the proper choice of law would be Massachusetts state law.

2. Summary Judgment

The defendant moves this Court for summary judgment on the argument that the plaintiff has not demonstrated the connection between the allegedly tortious act committed by the defendant and the claim of her injury. Summary judgment is appropriate if 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. Mass. R. Civ. P. Rule 56(c).¹ The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact. Todd & Weld, LLP v. Arcidi, 2004 WL 616296, *3, 2004 Mass.Super. LEXIS 68, * 7 (citing Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989)). In Massachusetts, a party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he or she demonstrates by reference to material described in Rule 56(c), and is unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case. Auburn Merch. Distribs. v. Southland Corp., 1999 WL 164503, *3, 1999 Mass.Super. LEXIS 61, * 9 (Mass.Super.Ct.1999) (citing Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991)).

While the Court does look at the pleadings submitted by the parties in ruling on summary judgment, "conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment." See Cullen Enterprises, Inc. v. Massachusetts Property Ins. Underwriting Assoc., 399 Mass. 886, 890, 507 N.E.2d 717 (Mass.1987) (citing Madsen v. Erwin, 395 Mass. 715, 721, 481 N.E.2d 1160 (1985) (quoting Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972)); See McDonnell v. Flaharty, 636 F.2d 184, 187 (7th Cir.1980); Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1014-1015 (5th Cir.1967)). For a complaint to be accorded evidentiary weight in determining if there exists an issue of material fact under Rule 56(c), the complaint must be in compliance with Rule 56(e). See Godbout v. Cousens, 396 Mass. 254, 262-263, 485 N.E.2d 940 (1985).

To be...