M.M. v. Pfizer, Inc.

• Decision Date: 01 November 2017
• Docket Number: No. 16-0927,16-0927
• Citation: 806 S.E.2d 800
• Court: West Virginia Supreme Court
• Parties: M.M., a Minor, BY AND THROUGH Her Mother and Next Friend JEANETTE M., Plaintiff Below, Petitioner v. PFIZER, INC.; Roerig, a Division of Pfizer, Inc.; and Greenstone, LLC, Defendants Below, Respondents

806 S.E.2d 800

M.M., a Minor, BY AND THROUGH Her Mother and Next Friend JEANETTE M., Plaintiff Below, Petitioner
v.
PFIZER, INC.; Roerig, a Division of Pfizer, Inc.; and Greenstone, LLC, Defendants Below, Respondents

No. 16-0927

Supreme Court of Appeals of West Virginia.

Submitted: October 17, 2017
Filed: November 1, 2017

806 S.E.2d 802

Benjamin L. Bailey, Ryan McCune Donovan, J. Zak Ritchie, Bailey & Glasser LLP, Charleston, West Virginia, Bert Ketchum, Greene Ketchum, Huntington, West Virginia, Attorneys for the Petitioner

Michael J. Farrell, Erik W. Legg, Megan Farrell Woodyard, Farrell, White & Legg PLLC, Huntington, West Virginia, Mark S. Cheffo, pro hac vice, Quinn Emanuel Urquhart & Sullivan, LLP, New York, New York, Attorneys for the Respondents

Davis, Justice:

The petitioner herein and plaintiff below, M.M.¹ ("M.M." or "the Petitioner"), a minor, by and through her mother and next friend Jeanette M., appeals from an order entered August 30, 2016, by the Mass Litigation Panel ("the Panel"). By its order, the Panel granted summary judgment to the respondents herein and defendants below, Pfizer, Inc.; Roerig, a division of Pfizer, Inc.; and Greenstone, LLC (collectively "Pfizer" or "the Respondents") upon its conclusion that there existed no genuine issue of material fact and that Pfizer was entitled to judgment as a matter of law. On appeal to this Court, M.M. assigns error to the Panel's order and contends that disputed issues of material fact preclude summary judgment, the Panel applied the wrong state's law under its choice of law analysis, and the asserted claims are not preempted by federal law. Upon our review of the parties' arguments, the pertinent authorities, and the record designated for consideration on appeal, we conclude that the Panel correctly determined that the Respondents are entitled to summary judgment. Accordingly, we affirm the August 30, 2016, order of the Mass Litigation Panel.

I.

FACTUAL AND PROCEDURAL HISTORY

M.M., an infant, by her mother, is one of nineteen minor plaintiffs who have alleged that they sustained birth defects as a result of their mothers' use of the prescription medication Zoloft. In the case sub judice, M.M. alleges that she sustained in utero injuries and resultant birth defects when her mother ingested sertraline hydrochloride while she was pregnant with M.M. Respondent Pfizer manufactures and markets sertraline hydrochloride as the antidepressant drug, Zoloft ; Respondent Roerig is a former division of Pfizer, while Respondent Greenstone is a wholly owned subsidiary of Pfizer that sells an authorized generic version of this medication. More specifically, M.M., who, through her mother, filed her complaint in the Circuit Court of Wayne County in 2012, contends that the 2009 labeling information for Zoloft did not warn prescribing physicians that the use of Zoloft in pregnancy was linked to an increased risk of birth defects and that women should use contraceptives while taking Zoloft.

Since the action's filing, the Respondents repeatedly, but unsuccessfully, have attempted to remove the subject litigation to federal court; the case has been referred to the Mass Litigation Panel; and this Court has decided several procedural issues in the ongoing litigation. See State ex rel. J.C. ex rel. Michelle C. v. Mazzone, 235 W. Va. 151, 772 S.E.2d 336 (2015) (forum non conveniens); State ex rel. J.C. v. Mazzone, 233 W. Va. 457, 759 S.E.2d 200 (2014) (assigning matter consolidated case number instead of individual case numbers). In 2015, M.M. filed an amended complaint asserting specific claims for strict liability, failure to warn, and negligence. Thereafter, the Respondents filed a motion for summary judgment, which the Panel granted by order entered August 30, 2016. In short, the Panel concluded that Michigan law governs M.M.'s claims; federal law operates to preempt the exception to Michigan's failure to warn immunity where the subject

806 S.E.2d 803

drug has received FDA approval; no genuine issues of material fact remained in the case; and the Respondents are entitled to judgment as a matter of law. From this adverse ruling, M.M. now appeals to this Court.

II.

STANDARD OF REVIEW

The case sub judice comes to this Court on appeal from the Panel's order granting summary judgment to the Respondents. We previously have held that this Court will apply a plenary review to a summary judgment ruling. See Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo."). In determining whether a moving party is entitled to summary judgment, we have held that "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Cas. & Sur. Co. v.Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). Accord W. Va. R. Civ. P. 56(c) (directing that summary judgment is proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law"). Thus, "[i]f there is no genuine issue as to any material fact summary judgment should be granted[.]" Syl. pt. 4, in part, Aetna, 148 W. Va. 160, 133 S.E.2d 770. See also Syl. pt. 5, id. ("The question to be decided on a motion for summary judgment is whether there is a genuine issue of fact and not how that issue should be determined."). Mindful of these standards, we proceed to consider the parties' arguments.

III.

DISCUSSION

On appeal to this Court, M.M. assigns error to the circuit court's ruling and contends that genuine issues of material fact preclude summary judgment; West Virginia, not Michigan, law applies to M.M.'s claims; and, even if Michigan law applies, such law is not preempted by federal law. More specifically, M.M. argues that the Panel erred by granting summary judgment to Pfizer because there remain genuine issues of material fact so as to preclude summary judgment because, counsel contends, Pfizer knew of the dangers of Zoloft use during pregnancy, generated reports suggesting contraceptive use while taking the medication, and realized the import of the possibility of birth defects by specifically including contraceptive warnings on its European packaging for the drug. Based on these facts, M.M. contends that a jury should be allowed to determine whether Pfizer was negligent or strictly liable for its failure to adequately warn of the possibility of birth defects linked to Zoloft usage by women of childbearing age.

Pfizer responds that the Panel correctly determined that, while worded as three separate and distinct claims for relief, i.e., strict liability, failure to warn, and negligence, M.M.'s claims essentially all seek to impose liability for the same alleged shortcoming of Pfizer: failure to warn. Moreover, Pfizer argues that, under either Michigan or West Virginia law, M.M. cannot prevail because Michigan statutory law expressly forecloses a failure to warn claim where the medication in question has been approved by the FDA and the exception thereto is preempted by federal law. Furthermore, even if West Virginia law governs M.M.'s claims, the infant still is not entitled to relief insofar as there is no alleged duty with which Pfizer has failed to comply (negligence claim) and failure to warn is the only theory of strict liability advanced by M.M., which is foreclosed by Michigan statutory law. Accordingly, Pfizer contends that the Panel's order granting summary judgment in its favor should be affirmed.

In...