Scott et al v. Teva Parenteral Medicines, Inc. et al

Filing 62

MEMORANDUM OPINION & ORDER granting Baxter Healthcare Corporation's 54 Motion for Summary Judgment as set out. Signed by Judge Callie V. S. Granade on 9/9/2011. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
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CARRIE SCOTT and JAMES SCOTT, )
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Plaintiffs,
)
)
vs.
)
)
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BAXTER HEALTHCARE
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CORPORATION, et. al.,
)
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Defendants.
)

CRIMINAL NO. 10-0186-CG-N

MEMORANDUM OPINION AND ORDER
This action is before the court on the motion of defendant, Baxter Healthcare
Corporation (“Baxter”), for summary judgment (Doc. 54) and plaintiffs’ response.
(Doc. 61). This product liability action arises from injuries suffered by plaintiff
Carrie Scott on February 20, 2008, while seeking medical treatment at the
emergency department of John Paul Jones Hospital. All claims against defendants
J. Paul Jones Hospital and J. Paul Jones Hospital Board were dismissed by order of
this court dated June 17, 2010. (Doc. 23). Upon plaintiff’s motion, defendants Teva
Pharmaceuticals USA, Inc., Sicor, Inc., and Teva Parenteral Medicines, Inc. were
dismissed on October 20, 2010. (Doc. 44).
Plaintiffs assert claims against the only remaining defendant, Baxter, as the
alleged manufacturer, seller and distributor of Phenergan™ or Promethazine
Hydrochloride for breach of warranty, failure to warn and for design defect under
the Alabama Extended Manufacturer’s Liability Doctrine. (Doc. 1-1). Plaintiffs

allege that the product was not reasonably safe, was defective and unreasonably
dangerous and unfit for IV-push administration. Baxter filed a motion for summary
judgment on August 18, 2011, asserting, among other things, that all of plaintiffs’
claims are really failure to warn claims and that under the recent United States
Supreme Court decision Pliva, Inc. v. Mensing, 564 U.S. ----, 131 S.Ct. 2567, 180
L.Ed.2d 580 (2011), the claims are preempted by federal law. (Docs. 54, 55).
On August 22, 2011, this court directed that any party opposing plaintiffs’
motion for summary judgment must file a response in opposition on or before
September 8, 2011. (Doc. 59). Plaintiffs filed a response which states they “are not
filing any evidentiary or legal argument in response to the Motion for Summary
Judgment” and “are aware that the Defendants will be entitled to judgment as a
matter of law on all claims.” (Doc. 61, p. 1). Plaintiffs acknowledge that the Pliva
decision makes any argument in opposition in this forum pointless. (Doc. 61, p. 2).
“In opposing a motion for summary judgment, a ‘party may not rely on his
pleadings to avoid judgment against him.’” Resolution Trust Corp. v. Dunmar Corp.,
43 F.3d 587, 592 (11th Cir. 1995), cert. denied sub nom., Jones v. Resolution Trust
Corp., 516 U.S. 817 (1995)(citing Ryan v. Int’l Union of Operating Eng’rs., Local
675, 794 F.2d 641, 643 (11th Cir. 1986)). Moreover, “[t]here is no burden upon the
district court to distill every potential argument that could be made based upon the
materials before it on summary judgment. Rather, the onus is upon the parties to
formulate arguments; grounds alleged in the complaint but not relied upon in
summary judgment are deemed abandoned.” Id. at 599 (citations omitted).
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There being no opposition to Baxter’s motion, the court, after reviewing the
pleadings in this case, concludes that judgment is due to be entered in Baxter’s
favor. All claims asserted by plaintiffs against Baxter have been abandoned.
Therefore, Baxter’s motion for summary judgment (Doc. 54) is hereby GRANTED.
DONE and ORDERED this 9th day of September, 2011.
/s/ Callie V. S. Granade
CHIEF UNITED STATES DISTRICT JUDGE

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