Heineman et al v. American Home Products Corporation et al

Filing 68

OPINION AND ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT: Wyeth's Motions for Summary Judgment ( 29 , 30 ) are DENIED. The record (#25) reflects that discovery in this action was to have been completed by October 1, 2013, w ith only limited discovery reserved for the completion thereafter. It appearing that the only remaining pretrial matters in this case concern hearings regarding the admissibility of certain expert testimony under Fed.R.Evid. 702, the Court directs t hat the parties jointly contact chambers within 30 days to schedule a Pretrial Conference and request the issuance of a Trial Preparation Order to govern the completion of the parties' joint Proposed Pretrial Order. by Chief Judge Marcia S. Krieger on 9/8/14.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-02070-MSK-CBS
JENNIFER HEINEMAN; and
ERIC ALLEN HEINEMAN,
Plaintiffs,
v.
AMERICAN HOME PRODUCTS CORPORATION;
WYETH-AYERST PHARMACEUTICALS, INC;
WYETH-AYERST INTERNATIONAL, INC.; and
WYETH-AYERST LABORATORIES DIVISION OF AMERICAN HOME PRODUCTS
CORPORATION,
Defendants.

OPINION AND ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT

THIS MATTER is before the Court on the Defendants’ (collectively, “Wyeth”) Motion
For Summary Judgment Re: Plaintiff’s Claim for Compensatory Damages (# 29), the Plaintiffs’
response (# 40), and Wyeth’s reply (# 42); and Wyeth’s Motion for Summary Judgment Re:
Plaintiff’s Claims for Punitive Damages (# 30), the Plaintiffs’ response (# 41), and Wyeth’s reply
(# 43).
FACTS
The Court briefly summarizes the pertinent facts herein, and elaborates as necessary in its
analysis. In 1996, Plaintiff Jennifer Heineman, then 24 years old, prevailed upon her physician
parents, Dr. Joan Scott (“Dr. Joan”) and Dr. John Scott (“Dr. John”), to issue her a prescription
for the drug Pondimin, a brand-name variant of the weight-loss drug fenfluramine manufactured
by Wyeth. Dr. John apparently signed one or more blank prescription forms, and Dr. Joan

apparently filled in the relevant information, allowing Ms. Heineman to obtain the drug. Ms.
Heineman took Pondimin from approximately March 1996 to May 1997.
In November 2010, Ms. Heineman was diagnosed was pulmonary arterial hypertension
(“PAH,” sometimes also known as “primary pulmonary hypertension”), a progressive and
potentially fatal lung disease. Mr. Heineman attributes her contracting of PAH to having taken
Pondimin.
In or about April 2012, Ms. Heineman commenced this action in the Pennsylvania Court
of Common Pleas (site of ongoing mass-plaintiff litigation against manufacturers and distributors
of fenfluramine products, known as the In re: Phen-Fen litigation). Ms. Heineman’s suit
incorporated by reference certain claims found in a “Master Complaint” in use in the In re:
Phen-Fen litigation, specifically asserting the following claims: (i) negligence, in that Wyeth
“failed to use due care in the designing, testing, and manufacturing of . . . fenfluramine” and
“failed to accompany their product with proper warnings regarding all possible adverse side
effects,” among others; (ii) strict products liability, in that the fenfluramine products were
“unreasonably dangerous”; (iii) strict liability failure to warn; (iv) breach of implied warranty;
(v) breach of express warranty, in that Wyeth made certain “written and verbal assurances of
safety and efficacy” and “false and misleading written information . . . published in the
Physicians Desk Reference on an annual basis”; (vi) fraud, in that Wyeth’s “advertising program,
by affirmative misrepresentations and omissions, falsely and deceptively sought to create the
image and impression that the use of fenfluramine . . . was safe for human use”; (vii) loss of
consortium, asserted by Eric Heineman, Jennifer’s husband; and (viii) a “claim” for
compensatory and punitive damages.

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Citing to the federal subject-matter jurisdiction premised on diversity of citizenship, 28
U.S.C. § 1332, Wyeth removed the action to the United States District Court for the Eastern
District of Pennsylvania, where a multi-district litigation case entitled In re Diet Drugs, 990
F.Supp. 834 (J.P.M.L. 1997), was pending. Although Ms. Heineman’s case was joined into that
MDL proceeding, in or about May 2013, Wyeth sought a transfer of venue of this case to the
District of Colorado, noting that Ms. Heineman and her parents were all citizens of Colorado
throughout the time periods at issue here, and that Ms. Heineman’s injuries were sustained in
Colorado. In June 2013, the court granted that motion, transferring the case to this Court.
Wyeth now seeks summary judgment on all of the Plaintiffs’ claims through motions
curiously-titled1 “Motion for Summary Judgment re: Plantiffs’ Claim for Compensatory
Damages” (# 29) and “Motion for Summary Judgment re: Plaintiffs’ Claim for Punitive
Damages” (# 30). In short, Wyeth argues: (i) all of the Plaintiffs’ claims are simply variants of
their failure to warn claim; (ii) the failure to warn claim fails because Dr. John testified that he
did not review any warnings about Pondimin before prescribing it, and thus, a more
comprehensive warning would not have prevented Ms. Heineman’s injury; (iii) the Plaintiffs
cannot rely on the fact that Dr. Joan may have considered the content of Pondimin’s warnings,
insofar as only Dr. John, as a matter of law, the duty to warn runs only to the prescribing
physician.
ANALYSIS
A. Standard of review
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if
no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
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It is axiomatic that remedies (such as damages of any kind) follow from claims. Thus,
“judgment,” summary or otherwise, is directed at claims, not damages.
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Summary adjudication is authorized when there is no genuine dispute as to any material fact and
a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs
what facts are material and what issues must be determined. It also specifies the elements that
must be proved for a given claim or defense, sets the standard of proof and identifies the party
with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Kaiser-Francis Oil Co. v. Producer=s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual
dispute is Agenuine@ and summary judgment is precluded if the evidence presented in support of
and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter
for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment
motion, a court views all evidence in the light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir.
2002).
If the movant has the burden of proof on a claim or defense, the movant must establish
every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P.
56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the
responding party must present sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th
Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine
dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material
fact, no trial is required. The court then applies the law to the undisputed facts and enters
judgment.
If the moving party does not have the burden of proof at trial, it must point to an absence
of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove.

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If the respondent comes forward with sufficient competent evidence to establish a prima facie
claim or defense, a trial is required. If the respondent fails to produce sufficient competent
evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
B. Choice of law
The parties agree that Pennsylvania’s choice of law rules apply to determine which
jurisdiction – Pennsylvania or Colorado – provides the substantive law that governs the
Plaintiffs’ claims. Both sides agree that, at least with regard to the failure to warn claim and its
necessary element of causation, both Pennsylvania and Colorado law are the same. Thus, no
choice of law determination need be made as to this issue, and both parties have relied on both
Colorado and Pennsylvania law. As to the issue of punitive damages, the standards permitting
such damages are different between the two jurisdictions, but as discussed below, the Court need
not address the availability of punitive damages at this time.
C. Failure to warn claim
The parties agree that an essential element of a failure to warn claim, whether it sounds in
negligence or strict products liability, is that the failure to give an adequate warning proximately
caused the claimed damages. For purposes of this motion, Wyeth concedes the possibility that
its warnings on Pondimin, as of 1996 or early 1997, were inadequate. However, it argues that
any defects in Pondimin’s labeling or supplementary warning material notwithstanding, the
Plaintiffs cannot demonstrate that the defect caused Ms. Heineman’s injuries because Dr. John
did not consider those warnings when deciding to honor Ms. Heineman’s request for a
prescription.

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Dr. John testified that, when providing care to his children like Ms. Heineman, “I would
sign prescriptions” because “I happened to have a prescription pad at home, [and] I don’t believe
[Dr. Joan] did.” Thus, Dr. John stated that he and Dr. Joan would discuss Ms. Heineman’s
requests for prescriptions, “[Dr. Joan] would make the decisions, and I would sign the
prescription.” Dr. John clarified that “the prescriptions I signed were blank, so my wife would
fill them in.” At the time Dr. John signed the prescriptions that Ms. Heineman ultimately used to
obtain Pondimin, Dr. John acknowledged that he did not consult any written materials for
information about the drug, did not review the Physician’s Desk Reference (“PDR”) entry for the
drug, and did not discuss the drug with any colleagues. Indeed, he testified that Pondimn was “a
drug that, frankly, I had never heard of at that point.” Dr. John’s failure to consider any
information about Pondimin prior to prescribing it for Ms. Heineman is the core of Wyeth’s
argument that the Plaintiff’s cannot demonstrate that the allegedly defective warning was not the
proximate cause of Ms. Heineman’s injuries.
This requires the Court to pause for a moment and address a potential dispute of fact.
The Plaintiffs contend that Dr. Joan – who testified that she had considered the allegedly
incomplete warning information in the PDR about Pondimin before allowing Ms. Heineman to
have it – may have also written one or more prescriptions for Ms. Heineman. This contention is
based on a passing comment made by Dr. Joan during her deposition. Asked whether she
“actually sign[ed] the prescription for Pondimin for Ms. Heineman,” Dr. Joan testified
“Apparently, I did. The prescriptions that you listed here.”2 Her answer continued, “I think at the
time I was not – I think Fitzsimmons [where Dr. Joan had been working] had closed and I was

2

From other portions of the deposition, it appears that Dr. Joan is referring to a deposition
exhibit that lists certain prescriptions that Dr. Joan wrote for Ms. Heineman that were filled by
Walgreens after 2002, many years after Ms. Heineman stopped taking Pondimin.
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between jobs and I might have gotten my husband to sign it.” Counsel then inquired whether
“you still could have signed the prescription,” despite Dr. Joan’s office having been closed, to
which she responded “No. . . . the prescription pads were specifically for [Fitzsimmons
Hospital]. . . I guess I could have signed one of my husband’s and put my number down.”
Later, when asked “Did you simply ask your husband to issue a prescription that Ms. Heineman
could fill,” Dr. Joan responded “I think so.”
Wyeth contends that Dr. Joan’s answer that “apparently, I did” write Pondimin
prescriptions for Ms. Heineman was simply Dr. Joan thinking out loud, and that the remainder of
her answer (and subsequent answers) reveals her reasoning that, despite her initial answer, she
does not actually believe that she wrote any such prescriptions. The Court agrees that Dr. Joan’s
testimony fails to raise a genuine dispute of fact as to whether she also wrote Pondimin
prescriptions for Ms. Heineman. The record as a whole reveals that Dr. Joan has no specific
personal memory of having done so; at best, her testimony reflects her acknowledging the
possibility that she might also have written a prescription, but she concedes that her own
recollection is that she “simply ask[ed Dr. John]” to issue the prescriptions. In that sense, the
Court agrees that Dr. Joan’s “apparently, I did” comment is merely Dr. Joan thinking out loud,
before correcting herself, concluding that Dr. John wrote all of the prescriptions in question.
Notably, the Plaintiffs do not point to any additional testimony by Dr. Joan that clearly expresses
a specific recollection of having written one or more Pondimin prescriptions. Accordingly, the
Court concludes, for purposes of this motion, that Dr. John, and only Dr. John, was responsible
for signing the prescriptions for Pondimin for Ms. Heineman.
Thus, the question presented is whether Dr. John’s failure to research or read Wyeth’s
warnings before prescribing the Pondimin means, as a matter of law, that the Plaintiffs cannot

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prove the necessary element of causation. Wyeth’s reasoning is that if Dr. John read no
warnings, any defect in the warnings published by Wyeth regarding Pondimin is irrelevant –
indeed, even a warning that accurately and comprehensively addressed Pondimin’s dangers (or,
hypothetically, even one that over-compensated, warning that any ingestion of the drug would
lead to certain death) would not have dissuaded Dr. John from prescribing it for Ms. Heineman,
as Dr. John never bothered to read any warnings.
Wyeth points out that both Colorado and Pennsylvania law provide that a drug
manufacturer’s duty to warn runs only to the prescribing physician, not to the patient or any
other person. Citing O’Connell v. Biomet, Inc., 250 P.3d 1278, 1281 (Colo.App. 2010) (“ where
prescription drugs are concerned, the manufacturer's duty to warn has been limited to an
obligation to advise the prescribing physician of any potential dangers that may result from the
drug's use”); Incollingo v. Ewing, 282 A.2d 206, 220 (Pa. 1971) (“Since the drug was available
only upon prescription of a duly licensed physician, the warning required is not to the general
public or to the patient, but to the prescribing doctor”). Known as the “learned intermediary”
doctrine, this principle assumes that the prescribing doctor assumes the responsibility of
ascertaining the drug’s dangers and evaluating whether its risks outweigh its benefits.
Wyeth points to Wollam v. Wright Medical Group, Inc., 2012 WL 4510695 (D.Colo.
Sept. 30, 2012), a recent decision by Judge Ebel. There, the plaintiff sued the manufacturer of an
allegedly defective hip implant, alleging (among other things) claims of failure to warn. Judge
Ebel granted summary judgment to the manufacturer, first explaining the “learned intermediary”
doctrine, then finding that “Wright Medical is entitled to summary judgment on this claim
because Plaintiffs have not submitted any evidence suggesting that any failure to warn or
inadequacy of the warnings Wright Medical gave was the proximate cause of Wollam's harm.”

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Finding that the plaintiff’s physician “testified in his deposition that he never read the warnings
or instructions Wright Medical included with [the device],” Judge Ebel concluded that “Plaintiffs
failed to submit evidence indicating that additional or different warnings would have made any
difference.”
The Plaintiffs argue that, in these circumstances, Wyeth’s duty to warn ran not only to
Dr. John as the physician technically prescribing Pondimin for Ms. Heineman, but also to Dr.
Joan, as the physician ostensibly “treating” Ms. Heineman and consulting with Dr. John on the
suitability of Pondimin. In support of this contention, they rely on Hoffman v. Sterling Drug,
Inc., 485 F.2d 132, 142 (3d Cir. 1973). In Hoffman, the plaintiff’s treating physician
successively referred the patient to two specialists to deal with a facial rash. Despite knowledge
of the potential risks, the specialists prescribed a drug that posed a risk of permanent eye
damage, and the plaintiff did ultimately suffer such damage. The plaintiff’s suit against the drug
manufacturer proceeded to trial on, among other things, a duty to warn claim, and the trial court
instructed the jury that “[s]ince this was a prescription drug, notice directly to the user was
virtually impossible and the notice to the prescribing physicians and treating physicians who
knew plaintiff was taking the drug was the most practical . . . [A]ny warning you find should be
given, . . .should be given not only to the prescribing physicians . . . but also to the treating
physician.” Id. The jury returned a verdict in favor of the plaintiff, and the drug manufacturer
appealed, arguing that “the trial judge improperly instructed the jury that they had a duty to warn
both the prescribing and the treating physicians, and that this was prejudicial because the
prescribing physician . . . was already aware of the danger to the eye.” Id. at 141.
Acknowledging the Pennsylvania Supreme Court’s adoption of the “learned
intermediary” doctrine in Incollingo, the Circuit Court distinguished that ruling, finding that

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“there was no treating physician in Incollingo, and the plaintiff’s doctors in that case were both
prescribing physicians.” Id. at 142. The Hoffman court declined to construe the “learned
intermediary” doctrine as “establish[ing] a class of doctors to whom a warning must be given,”
and instead understood it to “establish the most effective means by which a warning could reach
the patient.” Id. Hoffman explains that “Pennsylvania law would view it as insignificant
whether the doctor is a prescribing or treating physician, the important consideration being that
the warning best reach the patient.” Id. Finding that “in the case at bar, a warning given to . . .
the treating physician might have avoided the tragedy which occurred.” Id.
In reply, Wyeth argues that Hoffman reflects only an “Erie [doctrine] guess” by the Third
Circuit as to how Pennsylvania state courts would extend state law, as embodied by the thenrecent Incollingo decision, to other factual scenarios. Wyeth contends that Hoffman’s guess was
wrong, and that Pennsylvania state courts have consistently held that the “learned intermediary”
doctrine extends the manufacturer’s duty to warn only to the prescribing physician. Citing, e.g.,
White v. Wiener, 562 A.2d 378, 384-85 (Pa. Super. 1989); Rosci v. AcroMed, 669 A.2d 959, 969
(Pa. Super. 1995).
The Court finds Wyeth’s argument to be incomplete at this point, thus preventing the
entry of summary judgment in its favor. Assuming, without necessarily finding, that Wyeth’s
argument correctly assesses the current state of the “learned intermediary” doctrine in
Pennsylvania and/or Colorado, the Court finds that this argument elides the question of how the
phrase “prescribing physician” should be understood in the unusual factual scenario presented
here. The record reflects that Dr. John did nothing more than sign a blank prescription form and
turn it over to someone else, apparently abdicating any and all professional responsibilities that

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accompany the act of prescribing medicine.3 Those responsibilities were performed, if at all, by
Dr. Joan, who allegedly considered the suitability of Pondimin for Ms. Heineman, presumably
selected the appropriate dosage, and filled out the body of the prescription. Neither party has
pointed this Court to authority (presumably under Colorado law, where Drs. Joan and John
practiced) that would define which physician (if either, or both) would be considered the
“prescribing physician” (whether for purposes of applying the “learned intermediary” doctrine or
otherwise) in such unusual circumstances. Wyeth may be correct that the question is answered
slavishly, based solely on the signature on the bottom of the prescription, regardless of how that
prescription came to be.
Or it may be that the answer to that question is animated by the purposes of the “learned
intermediary” doctrine, which assumes that the “prescribing physician” has discharged his or her
“duty . . . to be fully aware of the characteristics of the drug he is prescribing, the amount of the
drug that can be asfely administered, and the different medications the patient is taking . . . .”
Mazur v. Merck & Co., 964 F.2d 1348, 1356 (3d Cir. 1992). Indeed, Mazur is particularly
elucidating on this question. There, a city required that all schoolchildren be vaccinated against
certain diseases. The specific vaccine to be administered was selected by a doctor with the city’s
health department, but school nurses were charged with making individualized determinations as
to whether particular children would be administered the vaccine. A student receiving the
vaccine claimed injuries resulting from it and brought suit against the vaccine manufacturer,
asserting failure to warn claims. The manufacturer invoked the “learned intermediary” rule,
pointing out that the doctor with the city’s health department had been fully advised of the
3

The record does not reflect what disciplinary action(s) were or will be taken or sought
against Dr. John in this regard. Nor do the parties address the extent to which Dr. John’s conduct
exposes him to a claim by Wyeth for contribution.
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vaccine’s risks. The trial court rejected the notion that the doctor was an appropriate
intermediary (or, in the parlance used by the parties here, the “prescribing physician”), as he “did
not perform the necessary individualized balancing required of a learned intermediary.” Mazur
v. Merck & Co., 742 F.Supp. 239, 253 (E.D.Pa. 1990). The trial court contemplated the
possibility that the nurses involved in screening students might be an appropriate intermediary,
but left that question open for further development of a factual record. Id. at 254-55. Later, the
trial court concluded that the nurse in question lacked the qualifications to be an appropriate
intermediary, and, on appeal, the Third Circuit agreed (essentially finding no “learned
intermediary” existed). 964 F.2d at 1356-58. “At bottom,” the Circuit Court explained, “it is the
physician who is required to make the individualized medical judgment of what treatment to
administer in a given instance, and it is the physician who is ultimately held accountable for that
decision.” Id. at 1358. Thus, a case like Mazur suggests that the “prescribing physician” (a/k/a
the “learned intermediary”) is necessarily the person who makes the individualized medical
judgment about what drugs should be administered. In the circumstances presented here, that
person is almost certainly Dr. Joan.4
Thus, even if the Court assumes that the causation question is determined by whatever
consideration was given to product warnings by the “prescribing physician,” the parties have
failed to adequately address the means by which the Court can identify this person (or perhaps
4

Perhaps anticipating the possibility that Dr. Joan would be deemed the “prescribing
physician,” Wyeth proceeds to argue that Dr. Joan did not consider her own knowledge of
Pondimin’s risks when deciding to prescribe it to Ms. Heineman, and instead decided to
prescribe the drug out of a mother’s concern for her daughter. A reasonable juror could
conclude that the cited excerpts of Dr. Joan’s testimony establish merely that Dr. Joan may have
allowed her familial love for Ms. Heineman to influence the risk/benefit analysis that a learned
intermediary is expected to undertake. However, when asked whether she would have
nevertheless prescribed Pondimin if she had known of the actual risks that Wyeth had failed to
disclose, she stated “probably not,” suggesting that such information might have tipped even a
sympathy-skewed risk/benefit analysis in the opposite direction.
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persons) in the peculiar circumstances of this case. Accordingly, the Court cannot grant
summary judgment to Wyeth on the failure to warn claims on the theory presented in its motion.
Because the Court does not grant Wyeth’s motion with regard to the failure to warn
claims, it need not reach Wyeth’s further argument that the remaining claims are merely
restatements of the failure to warn claim, such that summary judgment on all claims is
warranted.
D. Punitive damages
The Court then turns to Wyeth’s motion directed at the Plaintiffs’ “claim” for punitive
damages. Wyeth argues that the choice of law question presented here should result in the Court
applying Colorado substantive law. Further, it argues that, under such law, the Plaintiffs cannot
establish that Wyeth engaged in “willful and wanton conduct” as is required by C.R.S. § 13-21102(1) before punitive damages may be awarded, much less show that fact “beyond a reasonable
doubt” as required by C.R.S. § 13-25-127(2).
In response, the Plaintiffs make only a perfunctory argument that Pennsylvania law
should apply (contending merely that “Pennsylvania also has a strong interest and connection to
Plaintiffs’ claims,” in that Wyeth is headquartered in Pennsylvania and made certain decisions
concerning the labeling of Pondimin there). They concede that, under Colorado law, punitive
damages may only be awarded on a showing of “willful and wanton conduct,” proven beyond a
reasonable doubt.
Both parties acknowledge the recognition that it is this Court’s general practice to defer
questions of the sufficiency of evidence to support a demand (c.f. claim) for punitive damages
until the time of the charging conference, and the Court has every intention of adhering to that
practice here. Moreover, Court rejects Wyeth’s contention that the Plaintiffs’ proffered evidence

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of Wyeth officials seeking to “neutralize” efforts by physicians and researchers to highlight a
connection between Pondimin and PAH is conduct that “has no connection to this case.” The
evidence is arguably germane to the question of whether a stronger warning for Pondimin was
warranted, and, as discussed above, there is some evidence in the record to suggest that Dr. Joan
gave due weight to the existing warnings about Pondimin before deciding to prescribe it for Ms.
Heineman. The Court also rejects Wyeth’s argument that the U.S. Supreme Court’s decision in
Buckman v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001) precludes the Plaintiffs from
offering evidence in support of a demand for punitive damages. Buckman stands for the
proposition that federal law governing FDA proceedings precludes state-law claims sounding in
fraud on the FDA, but that case neither expressly or impliedly precludes a party from asserting
that, as matter of fact, such fraud is evidence of a defendant’s malicious or wanton state of mind.
Accordingly, Wyeth’s motion for summary judgment on the issue of punitive damages is
denied.
CONCLUSION
For the foregoing reasons, Wyeth’s Motions for Summary Judgment (# 29, 30) are
DENIED. The record (# 25) reflects that discovery in this action was to have been completed by
October 1, 2013, with only limited discovery reserved for completion thereafter. It appearing
that the only remaining pretrial matters in this case concern hearings regarding the admissibility
of certain expert testimony under Fed. R. Evid. 702, the Court directs that the parties jointly

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contact chambers within 30 days to schedule a Pretrial Conference and request the issuance of a
Trial Preparation Order to govern the completion of the parties’ joint Proposed Pretrial Order.
Dated this 8th day of September, 2014.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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