Lashley v. Pfizer, Inc.

• Decision Date: 01 October 2012
• Docket Number: Civil Action No. 1:09cv749HSO–JMR.
• Citation: 877 F.Supp.2d 466
• Court: U.S. District Court — Southern District of Mississippi
• Parties: Walter & Ginger LASHLEY, Plaintiffs v. PFIZER, INC., Wyeth, Inc., Schwarz Pharma, Inc., Watson Pharma, & Watson Laboratories, Inc., Defendants.

877 F.Supp.2d 466

Walter & Ginger LASHLEY, Plaintiffs

v.PFIZER, INC., Wyeth, Inc., Schwarz Pharma, Inc., Watson Pharma, & Watson Laboratories, Inc., Defendants.

Civil Action No. 1:09cv749HSO–JMR.

United States District Court,

S.D. Mississippi,

Southern Division.

June 27, 2012.

Order Denying Reconsideration Oct. 1, 2012.

G. Joseph Diaz, Jr., The Diaz Law Firm, PLLC, Madison, MS, Daniel J. McGlynn, Terrence Joseph Donahue, McGlynn, Glisson & Mouton, Baton Rouge, LA, William B. Curtis, Curtis Law Group, Dallas, TX, for Plaintiffs.

Walter T. Johnson, Leigh Davis Vernon, Watkins & Eager, Jackson, MS, Rex A. Littrell, Ulmer & Berne, LLP, Columbus, OH, Thomas G. McIntosh, Ulmer & Berne, LLP, Cincinnati, OH, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT FILED BY PFIZER, INC., WYETH, LLC, AND SCHWARZ PHARMA, INC., AND GRANTING MOTION TO DISMISS FILED BY WATSON PHARMA, INC., AND WATSON LABORATORIES

HALIL SULEYMAN OZERDEN, District Judge.

BEFORE THE COURT is a Motion for Summary Judgment [75] filed September 19, 2011, on behalf of Pfizer, Inc., Wyeth, LLC, and Schwarz Pharma, Inc. [“Pfizer Defendants”]. Plaintiffs Walter and Ginger Lashley filed a Response to the Pfizer Defendants' Motion for Summary Judgment [97] on November 23, 2011. The Pfizer Defendants filed a Rebuttal in support of the Motion for Summary Judgment [99] on December 5, 2011. In addition, the parties have filed a number of Notices of Supplemental Authority [106, 113, 78, 80, 81, 102, 108, 112], in support of their respective positions.

Also pending before the Court is a Motion to Dismiss [73] filed September 16, 2011, and a Motion for Summary Judgment [71] filed September 19, 2011, on behalf of Watson Laboratories, Inc., and Watson Pharma, Inc. [“Watson Defendants”]. On November 22, 2011, Plaintiffs filed Responses to the Motion to Dismiss [93] and Motion for Summary Judgment [92]. On December 5, 2011, Watson Defendants filed a Rebuttal in support of the Motion to Dismiss [101] and a Rebuttal in support of the Motion for Summary Judgment [95].

After due consideration of the record, the submissions on file, and the relevant legal authorities, the Court finds that because Plaintiffs are unable to maintain their claims as a matter of law against the Pfizer Defendants, they are entitled to summary judgment. The Court further finds that because Plaintiffs' claims against the Watson Defendants are preempted, the Watson Defendants' Motion to Dismiss should be granted.

I. FACTS AND PROCEDURAL HISTORY

This products liability case arises out of injuries allegedly sustained by Plaintiff Walter Lashley after being prescribed and taking the drug Reglan®, metoclopramide, and/or metoclopramide HCI. Compl. [1], ¶ 10; Am. Compl. [6], ¶ 10; Sec. Am. Compl. [36], ¶ 11. At various times during the period between 1989–2002, Defendants Pfizer Inc., Wyeth LLC, and Schwarz Pharma, Inc., manufactured and distributed the name-brand Reglan®, a drug approved by the United States Food and Drug Administration [“FDA”], and prescribed for certain gastroesophageal conditions.¹ Aff. of Warren L. Sunshine, [75–1], at p. 1, att. as Ex. “1” to Defs.' Mot. for Summ. J. Defendants Watson Pharma, Inc., and Watson Laboratories, Inc., along with other companies, manufactured, sold, and distributed metoclopramide, the generic equivalent of Reglan®, beginning in the mid 1980's. Aff. of Warren L. Sunshine, [75–1], at p. 2, att. as Ex. “1” to Defs.' Mot. for Summ. J.

In 2002, a physician prescribed Mr. Lashley a 20 milligram dosage of Reglan® for heartburn. Id. at ¶ 16. Mr. Lashley “ingested the Reglan/metoclopramide as prescribed.” ²Id. at ¶ 21. Sometime in late 2006, Mr. Lashley began exhibiting abnormal movements, at ¶ 25, which later developed into tardive dyskinesia. Plaintiffs allege that this condition resulted from Mr. Lashley's long-term ingestion of Reglan/metoclopramide. Id. ¶¶ 25–26. Beginning in 1985, warning labels on metoclopramide were modified to include the potential for development of tardive dyskinesia. In 2004, the warning label on metoclopramide was further strengthened.³

On October 30, 2009, Plaintiffs filed their Complaint [1] naming the following Defendants: Pfizer Inc., Wyeth, LLC, Schwarz Pharma, Inc., and Watson Pharmaceuticals, Inc. Plaintiffs filed an Amended Complaint [6] on January 26, 2010, naming Watson Pharma, Inc., as a Defendant, and deleting Watson Laboratories, Inc., as a Defendant. On May 24, 2010, Plaintiffs filed a Second Amended Complaint [36], naming all of the previously identified Defendants, and once again including Watson Laboratories, Inc., as a Defendant. In their Second Amended Complaint, Plaintiffs assert claims for negligence, strict liability, breach of warranty of merchantability and fitness for particular purpose, misrepresentation, suppression of evidence, fraud, and gross negligence. Plaintiffs also seek punitive damages. Id. ¶¶ 94–121.

On March 22, 2011, the Court held a Status Conference in this case, during which the parties requested that the Court stay this matter pending the United States Supreme Court's decisions in two cases, PLIVA, Inc. v. Mensing, –––U.S. ––––, 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011), and Actavis v. Demahy, Inc., ––– U.S. ––––, 131 S.Ct. 817, 178 L.Ed.2d 550 (2010). On April 19, 2011, this Court granted the parties' request, and stayed the case. On June 23, 2011, subsequent to the filing of Plaintiffs' Second Amended Complaint, the United States Supreme Court decided PLIVA, Inc. v. Mensing, ––– U.S. ––––, 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011).

At issue in Mensing was whether state tort law claims based on certain drug manufacturers' alleged failure to provide adequate warning labels for generic metoclopramide were preempted by federal law. Id. at 2571. The Supreme Court held that federal drug regulations applicable to generic drug manufacturers directly conflicted with, and thus preempted, a plaintiff's state law claims for failure to provide an adequate warning label. Id. The Court determined that because the FDA requires generic drug manufacturers to use the same warning labels that it requires brand-name manufacturers to affix to their products, and because FDA regulations prohibit generic manufacturers from unilaterally changing or strengthening their product labeling without prior FDA approval, FDA regulations preempt state law failure to warn claims against generic drug manufacturers. Claims brought under state tort law were preempted because “it was not lawful under federal law for the manufacturers to do what state law required of them.” Id. at 2577. On August 19, 2011, the Court entered an Order lifting the Stay and reopening this case. Defendants then filed the present dispositive Motions.

II. DISCUSSION

A. Pfizer Defendants' Motion for Summary Judgment

As brand-name manufacturers, Pfizer Defendants move for summary judgment on Plaintiffs' failure to warn claims under Miss.Code Ann. § 11–1–63(a)(i)(2), and breach of warranty claims pursuant under Miss.Code Ann. § 11–1–63(a)(i)(4). They argue that because Mr. Lashley ingested generic metoclopramide, and Pfizer, Wyeth, and Schwarz Pharma did not manufacture or distribute this product, Plaintiffs cannot, as a matter of law, sustain these claims against them under the Mississippi Products Liability Act, Miss.Code Ann. § 11–1–63, et seq. [“MPLA”].

Because jurisdiction in this case is premised upon diversity of citizenship, state substantive law applies. Erie R. Co. v. Tompkins, 304 U.S. 64, 79–80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Krieser v. Hobbs, 166 F.3d 736, 739 (5th Cir.1999).

The core of what has become known as the ‘Erie Doctrine’ is that the substantive law to be applied by a federal court in any case before it is state law, except when the matter before the court is governed by the United States Constitution, an Act of Congress, a treaty, international law, the domestic law of another country, or in special circumstances, by federal common law.

Hanley v. Forester, 903 F.2d 1030, 1032 (5th Cir.1990) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 79–80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).

1. Applicable Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure states that the Court shall grant summary judgment on each claim or defense on which summary judgment is sought if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Meyers v. M/V Eugenio C., 842 F.2d 815, 816 (5th Cir.1988).

To rebut a properly supported motion for summary judgment, the opposing party must present significant probative evidence, since 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. Booth v. Wal–Mart Stores, Inc., 75 F.Supp.2d 541, 543 (S.D.Miss.1999). If the evidence is merely colorable, or is not significantly probative, summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmovant may not rely on mere denials of material facts, nor on unsworn allegations in the pleadings or arguments and assertions in briefs or legal memoranda. Booth, 75 F.Supp.2d at 543.

The mere existence of a disputed factual issue does not foreclose summary judgment. The dispute must be genuine, and the facts must be material. Id. With regard to “materiality,” only those disputes or facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment. Id. (citing Phillips Oil Company v. OKC Corp., 812 F.2d 265, 272 (5th Cir.1987)). Where “the summary judgment evidence establishes that one of the essential elements of the plaintiff's cause of action...