Kemp v. Pfizer, Inc.

• Decision Date: 22 October 1993
• Docket Number: Civ.A. No. 92-71386.
• Citation: 835 F. Supp. 1015
• Parties: Diane KEMP, Personal Representative of the Estate of Terrance Clay Kemp, Deceased, and Diane Kemp, Individually, Plaintiffs, v. PFIZER, INC. and Shiley, Inc., Defendants.
• Court: U.S. District Court — Western District of Michigan

835 F. Supp. 1015

Diane KEMP, Personal Representative of the Estate of Terrance Clay Kemp, Deceased, and Diane Kemp, Individually, Plaintiffs, v. PFIZER, INC. and Shiley, Inc., Defendants.

Civ.A. No. 92-71386.

United States District Court, E.D. Michigan, S.D.

October 22, 1993.

COPYRIGHT MATERIAL OMITTED

David D. Patton, James A. Reynolds, Jr., Bloomfield Hills, MI, for plaintiffs.

Steven Glickstein, David Klingsberg, Robin A. Tauber, Kaye, Scholer, Fierman, Hays & Handler, New York City, Kevin S. Hendrick, Richard C. Sanders, Kay R. Butler, Hill Lewis, Detroit, MI, for defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT

GADOLA, District Judge.

On February 7, 1992, plaintiff Diane Kemp filed a complaint on behalf of herself and the estate of her husband, Terrance Clay Kemp, against defendants Shiley, Inc. and Pfizer, Inc. in Washtenaw County Circuit Court. Pursuant to 28 U.S.C. § 1446, defendants removed the action to this court. Plaintiff subsequently filed an amended complaint on February 16, 1993.

Before the court are the following four motions presented by defendants: (Motion 1) summary judgment based on preemption of Counts I-IV, VI, VII, IX, X, XI, XIII, XV, XVII, and XVIII; (Motion 2) summary judgment as a matter of law on Counts XII and XIV; (Motion 3) summary judgment on Counts VIII, IX, X, and XVI; and (Motion 4) summary judgment on plaintiff's claim for punitive, exemplary, and hedonic damages.

I. Background Facts

On June 22, 1982, Terrance Clay Kemp underwent surgery in Ann Arbor, Michigan for the implantation of a prosthetic heart valve known as the Bjork-Shiley Convexo-Concave Valve (the "C/C valve"). Defendant Shiley is the manufacturer of the valve and is a wholly owned subsidiary of defendant Pfizer. On July 29, 1986, Mr. Kemp died of cardiac arrest, allegedly the result of complications caused by a fracture of the C/C valve. At the time of death, an autopsy was not performed and the possible causes of death were listed as myocardial infarction, valve malfunction, or aortic dissection. Plaintiff Diane Kemp is Mr. Kemp's surviving wife and is the duly appointed representative of his estate.

In 1992, the parties engaged in negotiations in an effort to settle plaintiff's claim. During negotiations, defendants refused to admit that the C/C valve was defective and that it fractured. As a result, plaintiff alleges she was forced to exhume her husband's body for an autopsy to determine the cause of death. Mr. Kemp's body was exhumed and an autopsy was performed on August 11, 1992. The autopsy determined that the cause of death was a fracture of the C/C valve.

The C/C valve received pre-market approval by the Food and Drug Administration ("FDA") on April 27, 1979. The valve was approved as a Class III medical device.¹ Before approval, defendant Shiley was required to submit proposed labeling information, extensive safety testing data, and descriptions of manufacturing methods and materials. 21 U.S.C. § 360e(c)(1). Following pre-market approval, Shiley was required to maintain records and make reports to the FDA concerning the valve. Id. § 360i(a). Throughout the period when the C/C valve was marketed, the FDA still had the power to withdraw its approval and remove the device from the market. Id. § 360e(e)(1)(3). In this case, however, Shiley voluntarily withdrew all of its remaining C/C valves from the market and halted production on November 24, 1986. Defendant Shiley then requested withdrawal of its pre-market approval in early 1990.

Plaintiff's complaint alleges the following eighteen counts: (I) negligence; (II) res ipsa loquitur; (III) failure to warn; (IV) continuing duty to warn; (V) breach of express warranty; (VI) breach of implied warranty of merchantability; (VII) breach of warranty of fitness for a particular purpose; (VIII) consumer product warranties under the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312; (IX) strict liability; (X) violation of the Michigan Consumer Protection Act: (XI) negligence per se; (XII) intentional infliction of emotional distress; (XIII) fraud on the FDA and Mr. Kemp; (XIV) fraud on Mrs. Kemp regarding the exhumation of her husband's body; (XV) fraudulent concealment; (XVI) mail fraud;² (XVII) exemplary damages; and (XVIII) punitive damages. Defendants argue that plaintiff's state law claims concerning Mr. Kemp are preempted by federal law. In addition, defendants seek partial summary judgment on the claims related to the exhumation, on punitive and exemplary damages, and on the federal warranty claim.

II. Standard of Review

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted "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 judgment as a matter of law." "A fact is `material' and precludes grant of summary judgment if proof of that fact would have the effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect the application of appropriate principles of law to the rights and obligations of the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984) (citation omitted) (quoting Black's Law Dictionary 881 (6th ed. 1979)). The court must view the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the nonmovant's favor. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 993, 8 L.Ed.2d 176 (1962); Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984).

The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir.1986). The initial burden on the movant is not as formidable as some decisions have indicated. The moving party need not produce evidence showing the absence of a genuine issue of material fact. Rather, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party discharges that burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine triable issue. Fed.R.Civ.P. 56(e); Gregg, 801 F.2d at 861.

To create a genuine issue of material fact, however, the nonmovant must do more than present some evidence on a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986),

There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the nonmovant's evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

(Citations omitted). See Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The standard for summary judgment mirrors the standard for a directed verdict under Fed.R.Civ.P. 50(a). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Consequently, a nonmovant must do more than raise some doubt as to the existence of a fact; the nonmovant must produce evidence that would be sufficient to require submission to the jury of the dispute over the fact. Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990), aff'd, 929 F.2d 701 (6th Cir.1991). The evidence itself need not be the sort admissible at trial. Ashbrook v. Block, 917 F.2d 918, 921 (6th Cir.1990). However, the evidence must be more than the nonmovant's own pleadings and affidavits. Id.

III. Motion 1: Federal Preemption of Counts I-IV, VI, IX, X, XI, XIII, XV, XVII, and XVIII

In their first motion for partial summary judgment, defendants claim that Counts I-IV, VI, VII, IX, X, XI, XIII, XV, XVII, and XVIII of plaintiff's complaint are preempted by federal law.

A. Applicability to State Claims

Article VI of the Constitution declares that federal law "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. As a result, state or local laws that conflict with federal law and regulations are preempted. Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443 (1978).

Federal laws can invalidate local laws in several different ways. First, Congress can preempt state law "by so stating in express terms." Hillsborough County v. Automated Medical Lab., Inc., 471 U.S. 707, 712-13, 105 S.Ct. 2371, 2374, 85 L.Ed.2d 714 (1985). Secondly, where Congress has not spoken expressly, "the scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Field preemption can also occur where the "federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Hillsborough, 471 U.S. at 713, 105 S.Ct. at 2374. "Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law." Id. A state law conflicts with federal law when compliance with both is a "physical impossibility" or when state law is an "obstacle" to the objectives of Congress. Id. State or local laws regulating safety matters are favored unless it was the "clear and manifest purpose of ...