VITATOE v. Mylan Pharmaceuticals, Inc.
| Decision Date | 05 March 2010 |
| Docket Number | Civil Action No. 1:08CV85. |
| Citation | 696 F. Supp.2d 599 |
| Parties | Tara VITATOE, individually and as next friend and natural mother of Jacobie Vitatoe, a minor, Plaintiff, v. MYLAN PHARMACEUTICALS, INC., Mylan, Inc., and Mylan Laboratories, Inc., Defendants. |
| Court | U.S. District Court — Northern District of West Virginia |
Cyndi M. Rusnak, Jimmy Williamson, Williamson & Rusnak, Ross A. Sears, II, Sears & Crawford, Houston, TX, T. Christopher Pinedo, Sanford Pinedo LLP, Corpus Christi, TX, Teresa C. Toriseva, Wexler Toriseva Wallace, Wheeling, WV, for Plaintiff.
Clem C. Trischler, Pietragallo, Bosick & Gordon, LLP, Pittsburgh, PA, for Defendants.
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DKT. NO. 67
Tara Vitatoe ("Vitatoe"), the plaintiff in this civil action, lives in Louisiana with Jacobie, her African-American special needs son. On February 12, 2008, she sued the defendants, Mylan Pharmaceuticals, Inc., and Mylan, Inc. ("Mylan"), in the Circuit Court of Monongalia County, West Virginia, seeking damages for injuries she claims Jacobie suffered from ingesting Phenytoin, a phenytoin sodium-based product that is a generic anti-epileptic drug ("AED") manufactured by Mylan. On February 29, 2008, Mylan removed the case to this Court based on its original jurisdiction under 28 U.S.C. § 1332.
Mylan has moved for summary judgment as to all of Vitatoe's claims, arguing that Louisiana law and federal preemption preclude them. (dkt. no. 67). That motion is now fully briefed and ripe for review. For the reasons that follow, the Court concludes that 1) the Louisiana Products Liability Act ("LPLA") governs Vitatoe's claims; 2) the affirmative defense of the learned intermediary doctrine available under Louisiana law violates the public policy of West Virginia; and 3) Vitatoe's state law claims are not preempted by federal law. Consequently, it GRANTS summary judgment to Mylan as to those claims in Vitatoe's complaint barred by the LPLA, and DENIES the remainder of Mylan's motion.
When Jacobie Vitatoe was sixteen years old, he developed Stevens-Johnson Syndrome and Toxic Epidermal Necrolysis ("SJS/TEN") after ingesting Phenytoin, an AED prescribed by his neurologist, Joseph Nadell, M.D. ("Dr. Nadell"), to control his seizure disorder. SJS/TEN are variations of a severe hypersensitive reaction to an external stimulus, such as medication. Experts in the field of epileptology and dermatology recognize that AEDs such as Phenytoin can cause SJS/TEN.
The hallmark symptom of SJS/TEN is the blistering of the mucous membranes and sloughing of the surface of the skin. In cases of TEN, the more serious and sometimes fatal variation of the hypersensitive reaction, necrosis of at least 30% or more of the epidermis occurs. See Pierre-Dominique Ghislain M.D., Jean-Claude Roujeau, M.D., 8(1) Dermatology Online Journal 5, Treatment of Severe Drug Reactions: Stevens-Johnson Syndrome, Toxic Epidermal Necrolysis and Hypersensitivity Syndrome, available at http://dermatology.cdlib.org/DOJvol8num1/reviews/drugrxn/ghislain.html (last accessed Feb. 11, 2010).
Jacobie, who suffers from autism as well as a seizure disorder, was born on October 11, 1990, and lives with his mother. On January 12, 2007, he was admitted to Lake Charles Memorial Hospital suffering from seizures. After Jacobie's discharge from the hospital, Dr. Nadell attempted to control his seizures by prescribing Dilantin®, a name brand AED.
Vitatoe filled Jacobie's prescription at a local Walgreens pharmacy, where the pharmacist substituted Phenytoin, Mylan's generic brand of Dilantin®, and also provided an instructional pamphlet about the drug for her information.1 Although she admits that she never reviewed Mylan's drug label before administering Phenytoin to Jacobie, Vitatoe contends she consulted the pamphlet provided by Walgreens. That pamphlet, in pertinent part, advised:
After taking Phenytoin for three or four weeks, Jacobie developed a rash on the evening of March 4, 2007. By the next day, his condition was severe enough to warrant his readmission to the hospital, where he was diagnosed with SJS. To avert a more serious allergic reaction, Jacobie's physicians withdrew the Phenytoin, but his condition continued to worsen. Finally, on March 7, 2007, three days after he first developed symptoms of SJS, Jacobie was transferred to the Shriners Burn Hospital in Galveston, Texas, suffering from TEN. Despite a month-long hospitalization, during which he developed contractures of his limbs, underwent numerous surgeries, and more than 80% of his skin was debrided, Jacobie tragically lost approximately 99% of his epidermal skin and suffered severe damage to his eyes.
Vitatoe attributes Jacobie's injuries to his use of Phenytoin. She argues that Mylan, as the manufacturer of Phenytoin, failed to adequately warn her that Jacobie, an African-American patient, faced an increased risk of developing SJS/TEN by using Phenytoin. She claims that Jacobie's injuries from his use of Phenytoin are severe and life-changing. They include pain and anguish, severe disfigurement and scarring, the inability to perform his normal and usual activities, huge medical bills, diminished earning capacity, loss of the enjoyment of life, embarrassment, and humiliation. Mylan, however, counters that the warning on its Phenytoin label fully complied with the requirements of federal law and adequately disclosed the drug's possible side-effects, including the risk of SJS/TEN.
Under Fed.R.Civ.P. 56, "summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When ruling on a motion for summary judgment, a court reviews all evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
This case raises a difficult choice-of-law issue. Despite the fact that Vitatoe filed her lawsuit in West Virginia, where Mylan's manufacturing plant is located, Mylan argues that, under West Virginia's choice of law rules, the substantive law of Louisiana governs all of Vitatoe's claims because Jacobie's injuries occurred there. It also contends that, under the correct application of the LPLA, the Court should grant it summary judgment and dismiss all of Vitatoe's claims.
In Vest v. St. Albans Psychiatric Hosp., Inc., 182 W.Va. 228, 387 S.E.2d 282, 283 (1989), the West Virginia Supreme Court of Appeals recognized that, under the rule of lex loci delicti, "in tort cases . . . the substantive rights between the parties are determined by the law of the place of injury." Mylan contends that, as there is no dispute in this case that Jacobie's injuries occurred in Louisiana, Vitatoe's claims are subject to the provisions of the LPLA, under which the only possible claim against it could be one of inadequate warning about the risk of SJS/TEN.
Pursuant to Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the applicable law in a diversity case such as this is determined by the substantive law of the state in which a district court sits. This includes the forum state's prevailing choice of law rules. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Thus, under West Virginia's rule of lex loci delicti, because Jacobie's injuries occurred in Louisiana, that state's substantive law will govern Vitatoe's claims unless the public policy of West Virginia would bar application of that state's law. Vest, 387 S.E.2d at 283.
In considering the applicability of the LPLA to Vitatoe's claims, the Court must first consider which of her claims survive under the LPLA. It must next determine whether any part of the LPLA violates West Virginia public policy.2
of Laws § 18), a court in West Virginia should decline to apply foreign laws that are "`contrary to pure morals or abstract justice, or unless enforcement would be of evil example and harmful to its own people.'" Importantly, not every differing foreign law offends West Virginia public policy. See Howe v. Howe, 218 W.Va. 638, 625 S.E.2d 716, 724 (2005).
The LPLA "establishes the exclusive theories of liability for manufacturers for damage caused by their products." La.Rev.Stat. Ann. § 9:2800.52. "A claimant may not recover from a manufacturer for damage caused by a product on the basis of any theory of liability that is not set forth in this Chapter." Id. This language "limits a plaintiff's theories of recovery against a manufacturer of an allegedly defective product to those established by the LPLA." Stahl v. Novartis Pharma. Corp., 283 F.3d 254, 261-62 (5th Cir.2002); and Broussard v. Procter & Gamble Co., 463 F.Supp.2d 596, 603 (W.D.La.2006). These exclusive theories, for example, preclude products liability claims for intentional torts. Stahl, 283 F.3d at 262 ...
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