Norplant Contraceptive Products Litigation, In re, 97-40591

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 165 F.3d 374
• Docket Number: No. 97-40591,97-40591
• Parties: In re NORPLANT CONTRACEPTIVE PRODUCTS LIABILITY LITIGATION. Theresa Harrison, et al., Plaintiffs, Theresa Harrison; Andrea Elaine Haught, Plaintiffs-Appellants, v. American Home Products Corporation, doing business as Wyeth-Ayerst Laboratories, a Delaware Corporation; Wyeth Laboratories Incorporated, Defendants-Appellees. Barbara Woods, et al., Plaintiffs, Kristy Youngblood, Plaintiff-Appellant, v. American Home Products Corporation, doing business as Wyeth-Ayerst Laboratories, a Delaware Corporation; Wyeth Laboratories Incorporated, Defendants-Appellees. Crystal McDonald, et al., Plaintiffs, Beverly McDaniel, Plaintiff-Appellant, v. American Home Products Corporation, doing business as Wyeth-Ayerst Laboratories, a Delaware Corporation; Wyeth Laboratories, Incorporated, Defendants-Appellees. Wendy Boehm, et al., Plaintiffs, Jennifer L. Burton, Plaintiff-Appellant, v. American Home Products Corporation, doing business as Wyeth-Ayerst Laboratories, a Delaware Corporation; Wyeth Laboratories Incorporated, Defendants-Appellees.
• Decision Date: 29 January 1999

Page 374

165 F.3d 374 In re NORPLANT CONTRACEPTIVE PRODUCTS LIABILITY LITIGATION.
Theresa Harrison, et al., Plaintiffs,
Theresa Harrison; Andrea Elaine Haught, Plaintiffs-Appellants,
v.
American Home Products Corporation, doing business as
Wyeth-Ayerst Laboratories, a Delaware Corporation;
Wyeth Laboratories Incorporated,
Defendants-Appellees.
Barbara Woods, et al., Plaintiffs,
Kristy Youngblood, Plaintiff-Appellant,
v.
American Home Products Corporation, doing business as
Wyeth-Ayerst Laboratories, a Delaware Corporation;
Wyeth Laboratories Incorporated,
Defendants-Appellees.
Crystal McDonald, et al., Plaintiffs,
Beverly McDaniel, Plaintiff-Appellant,
v.
American Home Products Corporation, doing business as
Wyeth-Ayerst Laboratories, a Delaware Corporation;
Wyeth Laboratories, Incorporated,
Defendants-Appellees.
Wendy Boehm, et al., Plaintiffs,
Jennifer L. Burton, Plaintiff-Appellant,
v.
American Home Products Corporation, doing business as
Wyeth-Ayerst Laboratories, a Delaware Corporation;
Wyeth Laboratories Incorporated,
Defendants-Appellees. No. 97-40591. United States Court of Appeals,
Fifth Circuit. Jan. 29, 1999.
Rehearing Denied March 9, 1999.

Page 376

Gerald M. Birnberg, Matt E. Rubin, Williams, Birnberg & Andersen, Houston, TX, for Plaintiffs-Appellants.

John W. Vardaman, F. Lane Heard, III, Scott Edward Williams, Steven Michael Farina, Williams & Connolly, Washington, DC, for Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before JOLLY, DAVIS and DUHE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The appellants in this matter (collectively referred to as "Harrison") are five plaintiffs who each suffered side effects from their use of the prescription contraceptive Norplant, manufactured by Wyeth Laboratories Incorporated, a company owned by American Home Products ("AHP"). They appeal a district court ruling for summary judgment in favor of AHP. The primary question presented on appeal is whether the learned intermediary doctrine should apply to the plaintiffs' claims. Because we find no error in the district court's ruling, we affirm. AHP cross-appeals the district court's denial of its motion for partial summary judgment based on the statute of limitations bar. Because we find that AHP is entitled to summary judgment, we need not address this issue on appeal.

I

This case involves litigation over the side effects of the contraceptive Norplant. Norplant is a long-term birth control method whereby the recipient has six thin capsules of the hormone progestin inserted just below the skin of her upper arm. Harrison claims the Norplant can also have significant, unwanted side effects. ¹

In this case, all five plaintiffs received Norplant from their personal physicians and each suffered side effects. On July 22, 1994, a class action was filed against AHP, as the parent entity of Wyeth Laboratories--the manufacturer of Norplant, on behalf of "all adult women who have had Norplant inserted in their bodies and who have sustained damages." On December 8, 1994, the Judicial Panel on Multidistrict Litigation transferred all federal Norplant actions to the Eastern District of Texas for consolidated pretrial proceedings before Judge Richard Schell. Each of the plaintiffs in this matter subsequently filed individual actions in the Eastern District of Texas. On August 5, 1996, the court denied the plaintiffs' motion for class certification, deciding that class certification was premature and that bellwether trials were appropriate to determine whether the class should be certified under rule 23(c)(4). The plaintiffs in this case were selected for the first of three bellwether trials.

At the close of discovery, AHP moved for summary judgment and the district court granted the motion. The district court held that the learned intermediary doctrine applied to all of the claims filed by Harrison. Under that doctrine "when a drug manufacturer properly warns a prescribing physician of the dangerous propensities of its product, the manufacturer is excused from warning each patient who receives the drug. The doctor stands as a learned intermediary between the manufacturer and the ultimate consumer." Alm v. Aluminum Co. of America, 717 S.W.2d 588, 592 (Tex.1986) (citations omitted). The district court concluded that, under the doctrine, AHP had no obligation to warn the end user of the potential side effects of Norplant. The district court then concluded that Harrison had failed to produce evidence that AHP had not properly

Page 377

notified the prescribing physicians of Norplant's potential side effects. Harrison now timely appeals. II

Summary judgment is proper if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A summary judgment ruling is reviewed de novo, applying the same criteria employed by the district court. Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.1994).

Harrison raises a number of objections to the district court's application of the learned intermediary doctrine. First, Harrison argues that the learned intermediary doctrine cannot be applied to claims under the Texas Deceptive Trade Practices Act ("DTPA") as the doctrine is a common law defense and cannot be applied to a statute like the DTPA. Second, Harrison urges that even if the doctrine could be applied to the claims in this case, it should not as AHP marketed Norplant directly to the end users and that the end users relied on warnings (and the absence of warnings) provided by AHP's marketing rather than warnings provided by their physicians. Finally, Harrison argues that the doctrine should not apply because Norplant was required by the Food and Drug Administration ("FDA") to provide warnings about the side effects.

A

Harrison argues that the learned intermediary doctrine is inapplicable to the claims made under the DTPA. ² The district court did not address this issue below, apparently concluding that, because the DTPA claim was equivalent to the other common law claims, the learned intermediary doctrine should apply to it.

On appeal, Harrison argues that the learned intermediary doctrine is a common law defense, and that common law defenses may not be applied to the DTPA. Harrison's support for this argument comes from a line of cases spawned by the...