Symens v. Smithkline Beecham Corp., 94-1036.
| Decision Date | 30 September 1999 |
| Docket Number | No. 97-1014.,No. 96-1039.,No. 94-1036.,94-1036.,96-1039.,97-1014. |
| Citation | 593 F.Supp.2d 1075 |
| Parties | Richard SYMENS and Joyce Symens, Husband and Wife, Plaintiff, v. SMITHKLINE BEECHAM COPORATION, a Pennsylvania Corporation, Defendant, Ivan Sjovall d/b/a Sjovall Feedyard, Plaintiff, v. Smithkline Beecham Corporation, a Pennsylvania Corporation, Defendant. Norman Schick and Carol Schick, Plaintiff, v. Smithkline Beecham Corporation, a Pennsylvania Corporation, Defendant. |
| Court | U.S. District Court — District of South Dakota |
Danny R. Smeins, Britton, SD, Edward M. Bendelow, Bendelow & Darling, Denver, CO, James Allen Davis, James Allen Davis & Assoc., PC, Fremont, NE, Michael P. Dowd, Thomas F. Dowd, Dowd & Dowd, Omaha, NE, Curt R. Ewinger, Rice & Ewinger, Aberdeen, SD, for Plaintiffs.
Patrick A. Reinken, Scott A. Smith, Hinshaw & Culbertson, Minneapolis, MN, R. Alan Peterson, Lynn, Jackson, Shultz & Lebrun, P.C., Sioux Falls, SD, for Defendant.
[¶ 1] Plaintiffs in the above three cases filed an eight count complaint against Smithkline Beecham Corporation (SBC) ("defendant") on May 14, 1996, August 28, 1996, and on May 12, 1997, respectively. The parties will be collectively referred to as "plaintiffs" throughout this opinion.
[¶ 2] Specifically, plaintiffs allege that a vaccine developed by defendant caused severe damage to plaintiffs' herd of cattle. Defendant's alleged liability is contained in the complaints as follows: (1) strict product liability; (2) implied warranty for fitness for a particular purpose; (3) implied warranty of merchantability; (4 + 5) false advertising; (6) failure to warn; (7) inadequate warning; and (8) fraud on the agency. See Plaintiffs' Amended Complaint (AC), in Civ. 94-1036 at ¶¶ 1-61.1
[¶ 3] On February 28, 1997, defendant moved for summary judgment (Docket # 94), arguing that plaintiffs' claims are preempted by the Virus-Serum-Toxin Act (VSTA), 21 U.S.C. §§ 151-159. See Memorandum in support of motion for summary judgment (Def. Memo). On October 7, 1997, 19 F.Supp.2d 1062, the Honorable Charles B. Kornmann issued an order (Docket # 78) denying defendant's motion for summary judgment. On November 10, 1997, defendant filed a motion (Docket # 79) for reconsideration of the Court's summary judgment ruling, or in the alternative for certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). On December 12, 1997, the Honorable Charles B. Kornmann issued an order (Docket # 84) denying the motion to reconsider and granting the motion for certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
[¶ 4] On, January 1, 1998, the Eighth Circuit Court of Appeals issued an order (Docket # 90) granting the petition to appeal. See Symens v. SmithKline Beecham Corp., 152 F.3d 1050 (8th Cir.1998). The case was remanded by the Eighth Circuit to the district court for an analysis of the preemption issue. Id. at 1056. Additionally, defendant has moved for summary judgment arguing that plaintiffs' claims are preempted by the Virus—Serum—Toxin Act (VSTA), 21 U.S.C. §§ 151-159.2 See Def. Memo.
[¶ 5] On August 26, 1999, the Court consolidated the three cases.3 Consolidation does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another. See Johnson v. Manhattan Ry., 289 U.S. 479, 496-97, 53 S.Ct. 721, 727-28, 77 L.Ed. 1331 (1933); see also United States v. Altman, 750 F.2d 684, 695 (8th Cir.1984) (); Kraft, Inc. v. Local Union 327, Teamsters, 683 F.2d 131, 133 (6th Cir.1982) (same). Therefore, this opinion will have no effect on the rights of the plaintiffs in the Schick case (Civ. 97-1014) where no motion for summary judgment is pending.
[¶ 6] This Court has jurisdiction pursuant to 28 U.S.C. § 1332.
[¶ 7] In mid-July 1992, and over the course of the next several months plaintiffs Richard and Joyce Symens and Ivan Sjovall injected their cattle with the Vaccine BoviShield 4 and Ultrabac-7/Somubac vaccines. See AC at ¶¶ 1-2. Subsequently, plaintiffs' cattle lost weight, became ill and many died. Id. at ¶ 6.
[¶ 8] BoviShield 4 and Ultrabac-7/Somubac, the vaccines at issue in this case were manufactured, marketed, and tested by defendant. See Answer of Defendant Smithkline Beecham Corp. to Amended Complaint (Def. Answer) at ¶ 3. BoviShield 4 was licensed by the United States Department of Agriculture ("USDA"), Animal and Plant Health Inspection Service ("APHIS"), on March 30, 1988, under USDA license No. 189, Code 1181.20. See Defendant's Local Rule 56.1(b) statement of material facts (Def. Facts) at ¶ 1. Ultrabac-7/Somubac4 was licensed by APHIS on December 15, 1985, under USDA license No. 225, Product Code 7423.00. See Def. Facts in Civ. 96-1039 at ¶ 2.
[¶ 9] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.
[¶ 10] In determining whether a genuine issue of material fact exists, the Court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). The Supreme Court has instructed that "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy, and inexpensive determination of every action.' "Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," and "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita, 106 S.Ct. at 1356.
[¶ 11] The teaching of Matsushita was further articulated by the Supreme Court in Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 468, 112 S.Ct. 2072, 2083, 119 L.Ed.2d 265 (1992) where the Court said, "Matsushita demands only that the nonmoving party's inferences be reasonable in order to reach the jury, a requirement that was not invented, but merely articulated, in that decision." The Court expounded on this notion by reiterating its conclusion in Anderson that, "[s]ummary judgment will not lie ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Eastman Kodak, 504 U.S. at 468 n. 14, 112 S.Ct. at 2083 n. 14 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. at 2510). To survive summary judgment there must be evidence that "reasonably tends to prove" plaintiffs theory; defendant meets the burden under Fed.R.Civ.P. 56(c) when it is conclusively shown that the facts upon which the nonmoving party relied to support the allegations were not susceptible of the interpretation which was sought to give them; only reasonable inferences can be drawn from the evidence in favor of the nonmoving party. Id. (citations omitted).
[¶ 12] In the analysis of the preemption issue the court is not unmindful of the three cases discussing the subject matter of APHIS Regulations and preemption. Garrelts v. SmithKline Beecham Corp., 943 F.Supp. 1023 (N.D.Iowa 1996); Lynnbrook Farms v. Smithkline Beecham Corp., 79 F.3d 620 (7th Cir.1996) cert. denied 519 U.S. 867, 117 S.Ct. 178, 136 L.Ed.2d 118 (1996); and Murphy v. SmithKline Beecham Animal Health Group, 898 F.Supp. 811 (D.Kan.1995).
[¶ 13] VSTA authorizes the USDA to regulate production and marketing of toxins used in the treatment of domestic animals. See 21 U.S.C. § 154. The USDA has delegated this authority to the Animal and Plant Health Inspection Service (APHIS). See 9 C.F.R. § 101.2. The APHIS in turn has developed an extensive regulatory scheme for manufacturing, testing, labeling, and marketing of these animal toxins. See 9 C.F.R, §§ 101.2-4. Lynnbrook Farms, 79 F.3d at 623-624.
[¶ 14] In SmithKline Beecham Corp., 152 F.3d at 1054, the Eighth Circuit Court of Appeals stated, "Plaintiffs' broadly pleaded claims are preempted to the extent that they rely upon `liability-creatingpremises' that are different from, or in addition to, those imposed by USDA regarding the safety, efficacy, potency, purity, or labeling of SBC's licensed vaccines." However, common law claims are not preempted to the extent that they seek relief for alleged violations of the federal standards. Id. at 1055. In order to determine the preemptive effect of the VSTA on plaintiffs' claims, this Court must conduct an analysis of the allegedly preempting federal requirement and the allegedly preempted state requirement. Id. at 1056, (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 500, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (plurality opinion)). Upon analyzing each of plaintiffs' claims, this Court finds that defendant is entitled to summary judgment on all eight counts contained in plaintiffs'...
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