Norplant Contraceptive Products Litigation, In re

• Decision Date: 29 January 1999
• Docket Number: No. 97-40591,97-40591
• Citation: Norplant Contraceptive Products Litigation, In re, 165 F.3d 374 (5th Cir. 1999)
• 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.
• Court: U.S. Court of Appeals — Fifth Circuit

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.

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 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.²The 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 Texas Supreme Court's decision in Smith v. Baldwin, where that court stated: "The DTPA does not represent a codification of the common law.A primary purpose of the enactment of the DTPA was to provide consumers a cause of action for deceptive practices without the burden of proof and numerous defenses encountered in a common law fraud or breach of warranty suit."611 S.W.2d 611, 616(Tex.1980).

Subsequent Texas cases have applied Baldwin to generally disallow the use in DTPA claims of both common law defenses and common law doctrines that affect the burden of proof.Alvarado v. Bolton, 749 S.W.2d 47, 48(Tex.1988)(barring use of doctrine of merger);Weitzel v. Barnes, 691 S.W.2d 598, 600(Tex.1985)(barring use of parole evidence rule and common law burden of proof);O'Hern v. Hogard, 841 S.W.2d 135, 137(Tex.App.--Hous.1992)(barring common law doctrine of new and independent cause);Shenandoah Associates v. J & K Properties, Inc., 741 S.W.2d 470, 496(Tex.App.--Dallas1987, writ denied)(barring defense based on waiver and ratification);Home Savings Association v. Guerra, 720 S.W.2d 636, 644(Tex.App.--San Antonio1986)(barring estoppel defense), aff'd in part, rev'd in part, 733 S.W.2d 134(Tex.1987);Roy E. Thomas Const. Co. v. Arbs, 692 S.W.2d 926, 932(Tex.App.--Fort Worth1985)(barring defense of impossibility), writ rev'd n.r.e. per curiam, 700 S.W.2d 919(Tex.1985);Joseph v. PPG Indus., Inc., 674 S.W.2d 862, 865-66(Tex.App.--Austin1984, writ rev'd n.r.e.)(barring defense of failure of consideration).

The Texas courts have also made clear, however, that at least some common law common law doctrines are applicable to the DTPA.Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 387-88(Tex.1991)(holding that, under the DTPA, no legal duty exists to warn of the health risks of alcohol consumption because such risks are "within the ordinary knowledge common to the community");Autohaus, Inc. v. Aguilar, 794 S.W.2d 459, 462(Tex.App.--Dallas1990)(permitting use of common law doctrine of "puffing" in DTPA claim), writ denied per curiam, 800 S.W.2d 853(Tex.1991);Jenkins v. Steakley Bros. Chevrolet Co., 712 S.W.2d 587, 590(Tex.App.--Waco 1986, no writ)(permitting DTPA suit to be barred by accord and satisfaction).In both Seagram and Autohaus, Texas courts therefore permitted a common law doctrine that defined the degree to which a seller is responsible for a consumer's reliance on the safety or quality of a sold product.

Harrison asserts, however, that the learned intermediary doctrine is a common law defense that should not be applicable to the DTPA under Baldwin.The basis for this conclusion arises from the following language in Rolen v. Burroughs Wellcome Co., 856 S.W.2d 607, 609(Tex.App.--Waco1993 writ denied): "The 'learned intermediary doctrine' is distantly related to the tort concept of 'superseding cause.'Although the doctrine has never been recognized by the Texas Supreme Court, it has been adopted by intermediate appellate courts."Based on this language, Harrison argues that the doctrine is a common law defense inapplicable to the DTPA.To the extent that the learned intermediary doctrine is comparable to the tort concept of superseding cause, a credible argument can be made that, under O'Hern, the doctrine should not be applicable to the DTPA.

AHP responds, however, by arguing that the doctrine is not a defense but instead is "a rule of law that defines a pharmaceutical manufacturer's...