Fullington v. Pfizer Inc et al

Filing 92

ORDER for the reasons stated in this Court's opinions entered on 12/12/11 72 and 5/23/12 87 , the complaint of Joyce Fullington is dismissed with prejudice; the 88 MOTION for Reconsideration is denied. Signed by Chief Judge J. Leon Holmes on 7/17/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JOYCE FULLINGTON
v.

PLAINTIFF
No. 4:10CV00236 JLH

PLIVA, INC., formerly known as
Pliva USA, Inc.; and MUTUAL
PHARMACEUTICAL COMPANY, INC.

DEFENDANTS
ORDER

Joyce Fullington commenced this action against brand name and generic manufacturers of
metoclopramide, alleging various causes of action under Arkansas law. The Court granted summary
judgment in favor of the brand name manufacturers because Fullington did not consume their product.
Thereafter, the Court dismissed Fullington’s claims against the generic manufacturers based on a
ruling of the Supreme Court in PLIVA, Inc. v. Mensing, --- U.S. ---, 131 S. Ct. 2567, 180 L. Ed. 2d
580 (2011). In that Opinion and Order, the Court concluded that the complaint failed to state a claim
upon which relief can be granted against the generic manufacturers and therefore dismissed the
complaint without prejudice, giving Fullington an opportunity to file an amended complaint.
Thereafter, Fullington filed an amended complaint, but the amended complaint, for the most part,
simply re-alleged the claims that had previously been dismissed, including the claims against the
brand-name manufacturers.
The generic manufacturers then filed a motion to dismiss the amended complaint. As to
PLIVA, the Court concluded that all of Fullington’s claims in the amended complaint should be
dismissed pursuant to Fed. R. Civ. P. 12(b)(6) except the failure-to-warn claim for the period
between February 2009 and April 2009, which was a time during which the FDA had issued a new
warning. The Court noted, however, that PLIVA had presented Fullington’s pharmaceutical records

showing that she did not receive metoclopramide produced by PLIVA in 2009. Because those
records were outside the pleadings, the Court converted that portion of PLIVA’s motion to dismiss
to a motion for summary judgment and gave Fullington an opportunity present evidence showing that
she ingested metoclopramide originating from PLIVA after February 2009.
Instead of presenting evidence that she consumed metoclopramide originating from PLIVA
after February 2009, Fullington conceded that point, and, instead, filed a motion for reconsideration.
The motion for reconsideration largely consists of repetition of arguments previously considered and
rejected by the Court. One point made in the motion for reconsideration that deserves a brief
comment is an argument by Fullington that the Court overlooked the principle that a complaint may
plead in the alternative. See Fed. R. Civ. P. 8(a)(3) and (d)(2). That argument related to the Court’s
observation that Fullington alleged that all of the warnings relating to metoclopramide were
inadequate until February 2009. In her motion for reconsideration, Fullington argues, for the first
time, that she was pleading alternative theories: on the one hand, she contends that the warning labels
were inadequate until February 2009 and, on the other hand, she contends that PLIVA was negligent
for failing to update its warnings after 2004 to the (still inadequate) warnings that remained in effect
until February 2009. Fullington had not made that argument before, so the Court considered that
argument and reviewed Fullington’s original complaint and proposed amended complaint, both of
which allege that all of the warnings were inadequate until February 2009. Neither in the original
complaint, nor in the proposed amended complaint, is there any indication that Fullington was
pleading in the alternative. Despite her recently discovered belief that she was pleading in the
alternative, the complaint does not say that, and the complaint is what the Court must judge.

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For the reasons stated in this Court’s opinions entered on December 12, 2011, and May 23,
2012, the complaint of Joyce Fullington is dismissed with prejudice. The motion for reconsideration
is denied. Document #88.
IT IS SO ORDERED this 17th day of July, 2012.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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