CHAMBERS v. BOEHRINGER INGELHEIM PHARMACEUTICALS INC
ORDER granting in part and denying in part 48 Motion for Reconsideration. Ordered by US DISTRICT JUDGE CLAY D. LAND on 2/13/2018 (tlf).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VIRGINIA CHAMBERS, surviving
spouse of Bobby Lee Chambers on
behalf of all legal heirs of
Bobby Lee Chambers; VIRGINIA
CHAMBERS, executor of the
estate of Bobby Lee Chambers,
CASE NO. 4:15-CV-68 (CDL)
O R D E R
motion in limine.
moved for reconsideration of
Local Rule 7.6 provides that motions for
M.D. Ga. R. 7.6.
Generally, such motions will only
be granted if the movant demonstrates that (1) there was an
intervening development or change in controlling law, (2) new
evidence has been discovered, or (3) the court made a clear
error of law or fact.
Rhodes v. MacDonald, 670 F. Supp. 2d
1363, 1378 (M.D. Ga. 2009).
Plaintiff does not contend that
there has been an intervening change in the law or that new
evidence has been discovered.
Instead, she argues that this
Court erred by (1) finding that she abandoned her negligence,
negligence per se claims and (2) granting summary judgment on
her design defect claim.
As explained in the remainder of this
Order, Plaintiff’s motion is denied regarding her abandonment of
claims but granted as to her design defect claim.
Boehringer’s motion for summary judgment emphasized some
favor of it is included in a footnote.
Plaintiff’s failure to
respond authorizes a finding that she abandoned those claims.
review of Defendant’s briefing makes it clear that Plaintiff was
put on notice that Defendant sought summary judgment on the
See Def.’s Mem. in Support of Mot. for Summ.
J. 17 n.9, ECF No. 30-1 (arguing that Plaintiff’s negligence
(arguing that her negligent misrepresentation, fraud, fraudulent
concealment, breach of express warranty, and breach of implied
warranty claims “simply reflect nothing more than her central
failure to warn claim repackaged with a different title, and
should be dismissed as duplicative”); id. (arguing that both her
breach of warranty claims fail for lack of privity); id. at 1516 n.8 (arguing that her negligence per se claim is preempted).
Because Plaintiff did not respond to these arguments, summary
judgment on these claims is proper.
See Adkins v. Christie, 491
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th
Cir. 1995) (en banc)) (concluding that the district court did
not err in dismissing one of plaintiff’s claims when plaintiff
did not respond to defendant’s motion for summary judgment on
Plaintiff also maintains that the Court erred by granting
summary judgment in favor of Defendant on her design defect
She first reargues the issue of whether Praxbind, the
Pradaxa reversal agent, can be considered a design feature of
The Court decided this issue in its earlier Order, and
declines to revisit it now.
Plaintiff next argues that she has a design defect claim
based upon a failure to include adequate warnings with Pradaxa,
separate and apart from the Praxbind issue.
The Court did not
understand Chambers to be asserting such a claim when it issued
its previous summary judgment order.
Chambers clarifies in her
motion for reconsideration that “[t]he law cited and evidence
presented . . . as well as the findings by the Court related to
added); see also Pl.’s Resp. to Def.’s Mot. for Summ. J. 14-16,
ECF No. 35 (arguing that such a claim should not be preempted).
Boehringer contends that such a claim would collapse the wellrecognized distinction between failure to warn and design defect
protestation, Defendant failed to distinguish Georgia law, which
does in fact recognize that “adequate warnings as to the proper
or safe use of a product are part of the total design package of
the product,” Boyce v. Gregory Poole Equipment Co., 605 S.E.2d
Defendant’s counsel did not point the Court to any authority
that supports the argument that an inadequate warning cannot
support a design defect claim.
Because Georgia law appears to
provide specifically for a design defect claim based solely on
contrary Georgia authority, the Court holds that such a claim
can be maintained in this action.
And for the reasons set forth
in the Court’s summary judgment Order, the Court reiterates that
a fact question exists about the adequacy of Pradaxa’s warnings.
Furthermore, unless a defendant shows “plainly and indisputably
defective[,]” then the risk-utility analysis should be left to
Ogletree v. Navistar Int’l Transp. Co., 522 S.E.2d
467, 470 (Ga. 1999).
Therefore, Plaintiff’s design defect claim
based on inadequate warning,
as clarified in her motion for
reconsideration, survives summary judgment.
Plaintiff’s failure to warn claim as explained in the Court’s
earlier Order (ECF No. 44 at 40) and design defect claim based
on inadequate warning.
The Court’s previous order regarding
Praxbind remains undisturbed, and thus Plaintiff’s design defect
claim shall not rely in any way on Praxbind.
reconsideration (ECF No. 48) is granted in part and denied in
IT IS SO ORDERED, this 13th day of February, 2018.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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