Prather v. Organon United States, Inc. (In re Nuvaring® Prods. Liab. Litig.)

• Decision Date: 12 July 2013
• Docket Number: Case Nos. 4:08–MD–1964–RWS, 4:08–CV–00558–RWS.
• Citation: 957 F.Supp.2d 1110
• Parties: In re NUVARING® PRODUCTS LIABILITY LITIGATION. Marianne Prather, Plaintiff v. Organon USA, Inc. et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

957 F.Supp.2d 1110

In re NUVARING® PRODUCTS LIABILITY LITIGATION.Marianne Prather, Plaintiff

v.Organon USA, Inc. et al., Defendants.

Case Nos. 4:08–MD–1964–RWS, 4:08–CV–00558–RWS.

United States District Court,

E.D. Missouri,

Eastern Division.

July 12, 2013.

Elizabeth M. Wilkins, Kristine K. Kraft, Schlichter and Bogard, St. Louis, MO, for Plaintiff.

Deirdre C. Gallagher, Foley and Mansfield, P.L.L.P., Stephen G. Strauss, Bryan Cave LLP, St. Louis, MO, Sonja S. Weissman, Melissa A. Geist, Reed Smith, LLP, Oakland, CA, Thomas J. Yoo, Reed Smith LLP, Los Angeles, CA, for Defendants.

MEMORANDUM AND ORDER

RODNEY W. SIPPEL, District Judge.

Defendants in this case, hereinafter “Organon,” move for summary judgment directed to Plaintiff Marianne Prather's punitive damages claim. To decide Organon's motion, I must first determine which state's law applies to this action. Applying the Second Restatement's most significant relationship test as required by Missouri's choice-of-law rules, I conclude that Missouri law applies to the punitive damages issue. To be entitled to summary judgment, Organon must show there are no genuine issues of material fact as to Prather's claim for punitive damages. Organon has not carried its burden. As a result, Organon's motion for summary judgment will be denied.

I. BACKGROUND¹

Organon's principle place of business is in New Jersey. NuvaRing, which is manufactured, marketed, and sold by Organon, is a member of a class of prescription drugs known as combined hormonal contraceptives (“CHCs”). Unlike oral CHCs, which are taken daily, NuvaRing takes the form of a flexible ring which releases hormones over the course of treatment. The ring is vaginally inserted by women for birth control. Each month, the ring is removed and a new ring is inserted.

CHCs contain an estrogen, typically ethinyl estradiol (“EE”), and a progestin. The “generation” of CHC depends upon the type of progestin. Each “generation” of CHC typically uses the following progestins: first-generation contains norethynodrel; second-generation contains levonorgestrel; and third-generation CHCs contain desogestrel, gestodene, or norgestimate. NuvaRing uses the active metabolite of desogestrel, etonogestrel, and is therefore considered a third-generation progestin.

All CHCs can cause venous thromboembolism (“VTE”), including deep vein thrombosis (“DVT”) and pulmonary embolism.² First-generation CHCs use high levels of EE and are associated with high incidence rates of VTE. Second-generation CHCs use a reduced amount of EE and are associated with less risk of VTE. It is generally accepted that risk of thrombosis is correlated with estrogen dose. Third-generation CHCs use lower amounts of estrogen than prior generations; however, some studies have found an increased risk of VTE with some third-generation oral CHCs as compared to second-generation oral CHCs.

Plaintiff, Marianne Prather (“Prather”), is a resident of Missouri. Organon sold and marketed NuvaRing in Missouri, which included the use of sales representatives. Dr. Evelyn Schuetz prescribed NuvaRing to Prather in Missouri, and Prather began using NuvaRing in late August 2003. At the end of September 2003, Prather began to experience leg discomfort and shortness of breath. On October 4, 2003, Prather visited the emergency room in St. Charles, Missouri, where an ultrasound revealed a deep vein thrombosis in her left leg, and a CT scan revealed multiple pulmonary emboli.

Prather claims that NuvaRing presents an undisclosed risk of VTE, including both DVT and pulmonary embolism, that is higher than second- and third-generation oral contraceptives. Prather cites evidence that progestins “counterbalance” the blood-clotting tendencies of estrogen. Prather contends that NuvaRing's use results in occasional bursts of estrogen that are unopposed by progestin, and this increases the prothrombotic propensities of NuvaRing. Prather further alleges that the progestin component of NuvaRing reaches optimum levels more slowly than the estrogen component and that this also increases the risk of blood clots. Prather alleges that Organon knew of these issues and that these properties of NuvaRing are not reflected in the drug's label and packaging inserts. Prather further alleges that Organon failed to timely disclose the occurrences of VTEs in NuvaRing clinical patients and that Organon's sales representatives misrepresent NuvaRing's hormonal “burst” propensity by telling doctors that the ring “releases a steady dose” of estrogen and progestin per day. ( See Doc. 46–3, NuvaRing Sales Support, at 16).

Organon seeks summary judgment on Prather's claim for punitive damages, and Organon asserts that New Jersey law should govern the punitive damages issue. Prather contends that Missouri law controls. Organon responds that even under Missouri law, it is entitled to summary judgment.

II. DISCUSSIONA. Standard of Review

Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, indicates there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Castillo v. Ridge, 445 F.3d 1057, 1060 (8th Cir.2006) (citing Gipson v. INS, 284 F.3d 913, 916 (8th Cir.2002)). The summary judgment rule is intended “to isolate and dispose of factually unsupported claims” and should be applied to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 323–324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When a party moving for summary judgment points out an absence of evidence on a dispositive issue for which the nonmoving party bears the burden of proof at trial, the non-moving party must “go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324–25, 106 S.Ct. 2548 (internal quotations and citation omitted). Thereafter, summary judgment is mandated against the non-moving party who fails to make a showing sufficient to establish a genuine issue of fact for trial. Id. at 322, 324–25, 106 S.Ct. 2548. The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Davis v. U.S. Bancorp, 383 F.3d 761, 765 (8th Cir.2004) (citation omitted). In ruling on a motion for summary judgment, a court must consider all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion and resolve all reasonable doubts against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. 2505.

B. Choice of Law for Punitive Damages

As a threshold matter, the parties in this case dispute whether the law of Missouri or New Jersey should be applied to Prather's claim for punitive damages. Neither party contests that the respective laws conflict.³ A district court sitting in diversity must apply the choice-of-law rules of the state in which the action was originally filed. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Wolfley v. Solectron USA, Inc., 541 F.3d 819, 823 (8th Cir.2008). When determining choice-of-law issues, Missouri courts apply the “most significant relationship” test established by the Restatement (Second) of Conflicts of Law. Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo.Banc 1969). This test is applied individually to each particular issue under the principle of “dépeçage.” See Glasscock v. Miller, 720 S.W.2d 771, 775 (Mo.Ct.App.1986).

To determine whether a state has a more significant interest than the state of injury, Missouri courts apply Restatement (Second) Section 145, which provides two sets of criteria for determining the state with the most significant relationship. Natalini v. Little, 185 S.W.3d 239, 248–50 (Mo.Ct.App.2006); Goede v. Aerojet General Corp., 143 S.W.3d 14, 25 nn. 7 & 8, 26 (Mo.Ct.App.2004) (abrogated on other ground by Sanders v. Ahmed, 364 S.W.3d 195, 207 (Mo.Banc 2012)). First, courts must consider whether a state has a more significant interest under the principles stated in Restatement (Second) Section 6, which include:

(a) the needs of the interstate and international systems;

(b) the relevant policies of the forum;

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue;

(d) the protection of justified expectations;

(e) the basic policies underlying the particular field of law;

(f) certainty, predictability and uniformity of result; and

(g) the ease in the determination and application of the law to be applied.

Restatement (Second) § 6 (1971).

Second, Section 145 requires that courts must consider the following contacts when applying the Section 6 principles: (1) the place of the injury; (2) the place of misconduct; (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; and (4) the place where the relationship between the parties is centered. Id.§ 145(2). The number of contacts favoring a particular state plays little importance; rather, Missouri courts “evaluate the contacts based on their relative importance to the particular issue.” Goede, 143 S.W.3d at 26 (citing Dillard v. Shaughnessy, Fickel & Scott Architects, Inc., 943 S.W.2d 711, 715 (Mo.Ct.App.1997)). Thus, under Missouri's choice-of-law rules, the law of the state with the most significant relationship to the punitive damages issue will govern Prather's claim for punitive damages.

Section 146 of the Restatement applies to actions for personal injury and calls for states to apply the substantive law of the “state where the injury occurred” unless, “with respect to the particular issue[,] some other state has a...