Phelps v. Wyeth, Inc.

• Decision Date: 24 April 2012
• Docket Number: Civ. No. 6:09–cv–06168–TC.
• Citation: 857 F.Supp.2d 1114
• Parties: Betty PHELPS and Delbert Phelps, Plaintiffs, v. WYETH, INC.; Schwarz Pharma, Inc.; Pliva USA, Inc.; Northstar RX LLC; and Alaven Pharmaceutical, Defendants.
• Court: U.S. District Court — District of Oregon

857 F.Supp.2d 1114

Betty PHELPS and Delbert Phelps, Plaintiffs,

v.WYETH, INC.; Schwarz Pharma, Inc.; Pliva USA, Inc.; Northstar RX LLC; and Alaven Pharmaceutical, Defendants.

Civ. No. 6:09–cv–06168–TC.

United States District Court, D. Oregon.

April 24, 2012.

Daniel J. McGlynn, McGlynn Glisson & Mouton, LLP, Terrence Joseph Donahue, Jr., McGlynn, Glisson & Mouton, Baton Rogue, LA, Leslie W. O'Leary, Michael L. Williams, Thomas B. Powers, Steven B. Seal, Williams, Love, O'Leary & Powers, PC, Portland, OR, William B. Curtis, Curtis Law Group, Dallas, TX, Tiffany Reece Clark, Ulmer & Berne, LLP, Cincinnati, OH, for Plaintiffs.

Joseph P. Thomas, Tiffany Reece Clark, Ulmer & Berne, LLP, Cincinnati, OH, Rex A. Littrell, Ulmer & Berne, LLP, Columbus, OH, Susan E. Watts, Kennedy, Watts, Arellano & Ricks, LLP, Vicki M. Smith, Molly Jo Mullen, Bodyfelt, Mount, Stroup & Chamberlain, LLP, Portland, OR, Andrew H. Myers, Habib Nasrullah, Michael L. O'Donnell, Wheeler, Trigg, O'Donnell, LLP, Denver, CO, for Defendants.

OPINION AND ORDER

AIKEN, Chief Judge:

Plaintiffs bring this action alleging that Betty Phelps was injured after ingesting generic metoclopramide produced by defendants Pliva USA, Inc. (Pliva) and Northstar Rx LLC (Northstar) (“generic defendants”). Plaintiffs also allege that Wyeth, Inc. (Wyeth), Schwarz Pharma, Inc. (Schwarz), and Alaven Pharmaceutical (Alaven), manufacturers of the name-brand version of metoclopramide (“name-brand defendants”), are liable for their injuries.

In June 2010, the court granted summary judgment in favor of the name-brand defendants Wyeth, Schwarz, and Alaven and dismissed all claims against them. On September 19, 2011, plaintiffs filed a motion for a relief from that ruling, which the name-brand defendants opposed. Following the Supreme Court's ruling in PLIVA, Inc. et al. v. Mensing, ––– U.S. ––––, 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011), the parties filed supplemental motions. Northstar filed a motion for summary judgment, Pliva filed a motion to dismiss, and plaintiffs filed a motion for partial summary judgment. Following oral argumentson September 15, 2011, plaintiffs were given leave to file a motion to file an amended complaint. On November 22, 2011, Judge Coffin granted plaintiffs' motion to file an amended complaint, and plaintiffs filed their first amended complaint adding a claim against Pliva for failure to update its generic warning label to match the name-brand counterpart's label.

On November 23, 2011, Magistrate Judge Coffin recommended that the court deny plaintiffs' motion for a relief from judgment. Judge Coffin also recommended that the court grant Northstar's motion for summary judgment and Pliva's motion to dismiss based on federal preemption. Further, Judge Coffin recommended that the court deny plaintiffs' motion for partial summary judgment. Plaintiffs timely filed objections to Judge Coffin's findings. Additionally, defendant Pliva objects to plaintiffs' amended claims as preempted and argue that the issue is not properly before the court at this time.

Subsequently, plaintiffs filed a motion requesting sanctions for Pliva's failure to produce copies of the labeling that accompanied its metoclopramide products between 2003 and 2008 during discovery. Plaintiffs argue that Pliva's failure to disclose the fact that its label differed from the name-brand's label deprived both plaintiffs and the court of necessary information. Consequently, plaintiffs assert that sanctions are required under Federal Rule of Civil Procedure 26 and should be awarded under Federal Rule of Civil Procedure 37. Judge Coffin issued a second Findings and Recommendations and declined to impose sanctions, and plaintiffs object.

When a party objects to a magistrate judge's findings and recommendations regarding a dispositive issue, the district court must make a de novo determination of that portion of the magistrate judge's report. Fed.R.Civ.P. 72(b)(3); see28 U.S.C. § 636(b)(1)(c); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981). For non-dispositive motions, the magistrate's finding are reviewed for clear 72(a); Henry v. Gill Indust., Inc., 983 F.2d 943, 946 (9th Cir.1993). Plaintiffs filed timely objections to both of Judge Coffin's findings and recommendations, and defendants timely objected to a portion of Judge Coffin's findings regarding preemption. I give de novo review of the parties' objections to the findings and recommendations regarding the motions for relief from judgment, to dismiss, and summary judgment and review for clear error plaintiffs' objection to the denial of their motion for sanctions.

I. Background

The following facts are undisputed. Metoclopramide is a prescription drug that is available in either generic or name-brand formulation. Reglan, the name-brand product, was produced at different times by Wyeth, Schwarz, and Alaven. Pliva and Northstar produce the generic formulation of the medication.

Mrs. Phelps took generic metoclopramide tablets from November 2002 through at least August 2009 as prescribed by her physician. She alleges the metoclopramide caused her to develop tardive dyskinesia, a debilitating neurological condition characterized by involuntary movements. Plaintiffs allege that the defendants are liable for her injuries because they negligently failed to warn her or her doctors about the risks associated with the long-term use of metoclopramide.

II. Discussion

A. Claims Against Name–Brand Defendants are Dismissed.

Plaintiffs seek relief from judgment with respect to dismissal of their claims against the name-brand defendants on the grounds that Mensing overturned the established law. Federal Rule of Civil Procedure 60(b) sets forth the grounds upon which such a motion may be granted. Rule 60(b)(5) permits a party to obtain relief if “the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable.” Fed.R.Civ.P. 60(b)(5). Such motions are infrequently granted. Twentieth Century–Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir.1981). Here, plaintiffs argue reconsideration of the grant of summary judgment for name-brand defendants is warranted due to the Supreme Court's decision in Mensing. Plaintiffs claim that Mensing overturns the law established in Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir.1994), a case on which Magistrate Judge Coffin relied. In Foster, the Fourth Circuit found that the manufacturer of a name-brand prescription drug could not be held liable for an injury caused by the generic version of the drug.

Plaintiffs make two principle objections to Judge Coffin's findings. First, plaintiffs assert that Mensing overturned Foster, and thus the court's reliance on Foster is misplaced. Instead, plaintiffs urge the court to follow Conte v. Wyeth, Inc., 168 Cal.App.4th 89, 85 Cal.Rptr.3d 299 (2008) and Kellogg v. Wyeth, 762 F.Supp.2d 694 (D.Vt.2010). Second, plaintiffs argue that their claims are not solely based on product liability, but also sound in negligence and innovator's liability.

The name-brand defendants respond that summary judgment was granted based on the principle of Oregon law that a manufacturer cannot be held liable unless a plaintiff proves that her injuries resulted from the use of that manufacturer's product, and that Mrs. Phelps ingested only generic metoclopramide. Further, defendants claim that there were no federal-law issues relevant to the court's decision to grant their motion for summary judgment Finally, defendants assert that Mensing does not overturn Foster's holding concerning the liability of name-brand manufacturers.

Plaintiffs argue that the recent Mensing decision overturned the ruling in Foster; and consequently, the court improperly relied on Foster. In Foster, the Fourth Circuit found that name-brand manufacturers could not be held liable for injuries caused by generic formulations of a drug and that a generic manufacturer could add to or strengthen warnings or delete misleading statements on labels. 29 F.3d at 170. In Mensing, the Supreme Court held that a generic manufacturer could not change the content of label warnings, even to add additional warnings. 131 S.Ct. at 2575. Thus, while Mensing overrules Foster with respect to a generic manufacturer's ability to alter labels, it does not overrule Foster's holding regarding the liability of name-brand manufacturers. Indeed, the Foster court's reluctance to hold name-brand defendants liable for generic drugs did not depend on a generic manufacturer's ability to alter the label, but rather on concepts of foreseeability and duty. Consequently, Mensing does not overturn the central holding in Foster.

In fact, the Supreme Court acknowledged that the dual holdings of Foster and Mensing left the plaintiff there with no remedy, as she could not successfully bring a claim against name-brand manufacturers under Foster and was barred on other grounds from suing the generic manufacturers. Mensing, 131 S.Ct. at 2581 (acknowledging “the unfortunate hand that federal drug regulation has dealt” plaintiff). The majority further stated that Congress or the FDA could change the law if they wished to provide plaintiffs who had ingested generic medication with a persuasive authority to bar plaintiffs' claims against name-brand defendants here.

Additionally, plaintiffs argue that Foster rests on legally unsound propositions and urge the court to reject its holding. First, plaintiffs argue that Foster proposes that it is illogical for a physician to rely on product information provided by a name-brand manufacturer when prescribing a generic. Pl.'s Objections at 14. However, the Foster court's decision rests on its determination of the duty of a name-brand manufacturer, not the proposition that a physician should not rely on information provided by the name-brand...