Motus v. Pfizer Inc., CV00-298 AHM.

Citation196 F.Supp.2d 984
Decision Date20 December 2001
Docket NumberNo. CV00-298 AHM.,CV00-298 AHM.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
PartiesFlora MOTUS, Plaintiff, v. PFIZER INC., Defendant.

George W. Murgatroyd, III, Karen Ann Barth, Baum Hedlund Aristei Guilford & Schiavo, Los Angeles, CA, for Plaintiff.

Pierce O'Donnell, Ann M. Mortimer, Randy R. Merritt, Daniel C. Tepstein, O'Donnell & Shaeffer, Los Angeles, CA, Malcolm E. Wheeler, Amy L. Padden, James E. Hooper, Michael L. O'Donnell, Wheeler Trigg & Kennedy, Denver, CO, for Defendant.

ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANT

MATZ, District Judge.

I. INTRODUCTION

Six days after Dr. Gerald Trostler prescribed Zoloft to Victor Motus, Mr. Motus took his life. His widow, Flora Motus, sued Zoloft's manufacturer, Pfizer Inc., for failing to adequately warn that Zoloft can cause those who ingest it to commit suicide. She alleges five claims: (1) "wrongful death/negligence"; (2) strict liability; (3) "survival action"; (4) fraud; and (5) breach of warranty. Each of Ms. Motus's claims is premised on the allegation that Pfizer's "package insert and marketing materials do not warn . . . that [Zoloft] can cause some people to think and act in violent or suicidal ways." First Amended Complaint ("FAC") ¶ 20. She alleges that Pfizer's failure to warn of this risk caused her husband to commit suicide. FAC ¶ 28(d) (wrongful death/negligence claim); ¶ 38 (strict liability); ¶ 50-52 (fraud); ¶ 59 (breach of warranty).

Pfizer now moves for summary judgment on the ground that Ms. Motus cannot prove that its alleged failure to warn or inadequate warning caused her injury. Pfizer argues that Ms. Motus has no evidence that Dr. Trostler would have acted differently had adequate warnings been provided. The Court agrees with Pfizer, and accordingly grants it summary judgment on all claims.

II. FACTUAL BACKGROUND
A. Dr. Trostler Prescribes Zoloft to Victor Motus

Mr. Motus first saw Dr. Trostler on July 16, 1998 because he was having trouble controlling his diabetes and cholesterol. Trostler Depo. at 14, 48. Mr. Motus did not mention any symptoms of anxiety or depression during his first visit, nor during his next three visits to Dr. Trostler on July 27, August 25, and October 13. Id. at 50-51. Mr. Motus visited Dr. Trostler for the last time on November 6, 1998. Plaintiff's Statement of Genuine Issues ("SGI") ¶ 1. During that visit, Mr. Motus appeared "unhappy," "depressed," and "frustrated," and he "had a lot on his mind that he wanted to share" with Dr. Trostler. Trostler Depo. at 76-77. Mr. Motus told Dr. Trostler that his savings of $150,000 were gone, that he was losing $5,000 to $10,000 per week on a bad investment, that he could not sleep, that he was the president of a school district, that he had a political problem and that he had some numbness in his hands. Id. at 53, 81. Mr. Motus also told Dr. Trostler that he was contemplating bankruptcy. Id. at 79.

As a result of these revelations, Dr. Trostler concluded that Mr. Motus was moderately depressed. Id. at 54. Dr. Trostler did not think that Mr. Motus was suicidal or sufficiently depressed to warrant sending Mr. Motus to a mental health professional. Id. at 54. Dr. Trostler prescribed Mr. Motus 25 milligrams of Zoloft for seven days, followed by 50 milligrams of Zoloft for fourteen days. Id. at 53-54.

To fill this prescription, Dr. Trostler gave Mr. Motus a sample packet of Zoloft, which he had received from a Pfizer representative. Id. at 19, 54. The sample packet did not have any warning printed on it. Id. at 24. Dr. Trostler opined that the box containing the sample packets probably did contain a package insert (i.e., an insert that contains information about the drug, including warnings), or that each sample packet originally came with the package insert attached, but he could not recall removing the package insert from the packets or whether one package insert came in the box of samples. Id. at 96.

Dr. Trostler did not provide Mr. Motus with a package insert or any other written information concerning Zoloft, and he could not recall whether he had any promotional materials for Zoloft in his office at the time he prescribed Zoloft for Mr. Motus. Id. at 113. Dr. Trostler did not warn Mr. Motus that taking Zoloft could cause him to have suicidal thoughts or experience akathisia.1 Id. at 29. He did not discuss with Mr. Motus any contraindications of taking Zoloft, and was not aware of any contraindications that would have suggested Mr. Motus was not a good candidate for Zoloft. Id. at 98. During Dr. Trostler's deposition, Plaintiff's lawyer asked: "If you had been told that Zoloft can cause an increased risk in suicide during the first few weeks of drug treatment, is that the kind of information you would pass on to your patients?" Dr. Trostler responded, "Yes." Id. at 27-28.

Dr. Trostler told Mr. Motus to call him if his condition worsened or if he experienced any side effects, and he also had Mr. Motus schedule a follow-up appointment for November 26 (i.e., twenty days later). Id. at 99-100. Before Mr. Motus took his life, Dr. Trostler did not speak to Mr. Motus or any member of Mr. Motus's family and he did not know whether Mr. Motus experienced adverse reactions to Zoloft, such as confusion, akathisia, or suicidal thoughts. Id. at 39-40, 100-01. Six days later, on November 12, 1998, Mr. Motus committed suicide by shooting himself. SGI ¶ 3.

B. How Did Dr. Trostler Learn About Zoloft?

Dr. Trostler could not recall reviewing any information from Pfizer before deciding to prescribe Zoloft to Mr. Motus, although he "may have" relied on some unspecified written information from an "article or seminar." Id. at 92. He stated that his familiarity with Zoloft was "probably multisource," and included "reading articles" and attending "drug company meetings." Trostler Depo. at 15-16. By "drug company meetings," Dr. Trostler meant physician meetings such as seminars, lectures or conferences, where information was delivered by various people, including drug company representatives. Id. at 16-17. Dr. Trostler stated that the articles he read were "occasional articles that appear[ed] in journals to which I subscribe," such as the New England Journal of Medicine and the Annals of Internal Medicine. Dr. Trostler stated that he also received "hundreds of journals that come to the office unsolicited." Id. at 16.

Plaintiff argues that Dr. Trostler obtained information from sources other than the package insert, such as "PDR's" (Physician's Desk Reference), "Dear Doctor" letters and promotional activities of sales people. There is no evidence that he obtained information about Zoloft from the first two sources. As to sales representatives, Dr. Trostler stated that before the death of Mr. Motus, he "probably did have conversations about Zoloft with Pfizer representatives, but I don't specifically recall." Id. at 91. When asked whether he recalled any particular meeting where Zoloft was discussed, Dr. Trostler responded "No," id. at 17, and he could not remember the substance of any conversations he may have had with a Pfizer representative concerning Zoloft. Id. at 90-91. Dr. Trostler also could not recall whether Pfizer representatives brought him scientific articles or patient information brochures in 1998. Id. at 60. Nor could Dr. Trostler recall whether he discussed Zoloft with his colleagues. Id. at 96.

Even though Dr. Trostler stated that he could not recall any particular meeting in which he discussed Zoloft with a Pfizer representative, certain parts of his deposition indicate that he did, in fact, recall the substance of at least some meetings. For example, when asked: "In talking to Zoloft representatives . . . did they recommend different medical conditions to prescribe Zoloft to treat?," Dr. Trostler replied "Yes," and indicated that depression and panic attacks were two of those conditions. Id. at 45-46. Dr. Trostler also stated that in discussing Zoloft with Pfizer's representatives, they never told him that Zoloft could: (1) cause akathisia; (2) worsen a patient's situation; (3) cause a patient to have suicidal thoughts; (4) cause a patient to experience a feeling so acute that death is a welcome result; or (5) increase the risk that a patient would commit suicide. Id. at 20, 26. Dr. Trostler could not recall whether the drug representatives told him that once he prescribed Zoloft, he needed to closely supervise his patient. Id. at 25.

C. Why Did Dr. Trostler Decide to Prescribe Zoloft for Victor Motus?

Dr. Trostler stated that he relied solely on his "training and experience" in making his clinical evaluation that Mr. Motus was depressed. Id. at 83, 86. He admitted that he prescribed drugs without having previously reviewed the package insert, and that he first reviewed the package insert for Zoloft after Mr. Motus committed suicide. Id. at 88-89; SGI ¶¶ 8-9.2 Dr. Trostler stated that his "clinical experience" was the "ultimate determinant" for whether he would prescribe a drug, and that he would not prescribe a drug based on what a drug representative told him if he had concerns about a drug's safety or effectiveness. Id. at 90.

When asked: "In deciding to prescribe Mr. Motus Zoloft, did you rely specifically on any statements made to you by Pfizer representatives?," Dr. Trostler replied, "No." When asked: "Did you rely on any materials provided to you by Pfizer sales representatives in making your decision to prescribe Zoloft to Mr. Motus?," Dr. Trostler replied, "No." Id. at 91-92; 123-24. When asked: "Did any written material provided to you by a Pfizer representative regarding Zoloft cause you to prescribe Zoloft to Mr. Motus?," Dr. Trostler replied, "No." Id. at 113.

D. Dr. Trostler's Awareness of a Possible Relationship Between Zoloft and Suicide Before He Prescribed Zoloft to Mr. Motus

Dr. Trostler stated that he was aware, before he prescribed Zoloft to Mr. Motus, that there were some claims that SSRI drugs3 were linked to...

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