CHAMBERS v. BOEHRINGER INGELHEIM PHARMACEUTICALS INC

Filing 51

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
COLUMBUS DIVISION
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,
*
Plaintiffs,
*
vs.
*
BOEHRINGER INGELHEIM
PHARMACEUTICALS, INC.,
*
Defendant.

CASE NO. 4:15-CV-68 (CDL)

*
O R D E R

Plaintiff
this

Court’s

denied

in

Virginia Chambers
Order

part

(ECF

practice.

44),

which

motion

Defendant’s

motion in limine.
reconsideration

No.

moved for reconsideration of

for

granted
summary

in

part

and

judgment

and

Local Rule 7.6 provides that motions for

shall

not

be

M.D. Ga. R. 7.6.

filed

as

a

matter

of

routine

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

1

evidence has been discovered.

Instead, she argues that this

Court erred by (1) finding that she abandoned her negligence,
negligent

misrepresentation,

breach

express

of

fraud,

warranty,

breach

fraudulent
of

implied

concealment,
warranty,

and

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
claims

more

principle
request

than

of

for

law

others.
that

summary

But

excuses

judgment

the
a

Court

party

simply

is

from

because

favor of it is included in a footnote.

unaware

of

responding
the

any
to

argument

a
in

Plaintiff’s failure to

respond authorizes a finding that she abandoned those claims.

A

review of Defendant’s briefing makes it clear that Plaintiff was
put on notice that Defendant sought summary judgment on the
abandoned claims.

See Def.’s Mem. in Support of Mot. for Summ.

J. 17 n.9, ECF No. 30-1 (arguing that Plaintiff’s negligence
claim

has

“no

independent

legal

import”);

id.

at

6-7

n.2

(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

2

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.
F.

App’x

996,

998

(11th

Cir.

See Adkins v. Christie, 491
2012)

(per

curiam)

(citing

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
that issue).
Plaintiff also maintains that the Court erred by granting
summary judgment in favor of Defendant on her design defect
claim.

She first reargues the issue of whether Praxbind, the

Pradaxa reversal agent, can be considered a design feature of
Pradaxa.

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
Plaintiff’s

failure

to

warn

claims,

3

all

support

Plaintiff’s

design

defect

warning.”

claim

Pl.’s

for

Mot.

failure

for

to

Recons.

provide

3,

ECF

a

No.

more
48

robust

(emphasis

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
theories

of

product

liability.

Notwithstanding

its

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
384,

390

defective
Chrysler

(Ga.

Ct.

solely
Corp.

v.

App.

due

2004);

to

Batten,

an

and

that

inadequate

450

S.E.2d

“some
or

208,

products

absent
211

are

warning.”

(Ga.

1994).

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
an

inadequate

warning

and

the

Court

has

been

pointed

to

no

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

4

an

absence

of

any

evidence

that

a

product

as

designed

is

defective[,]” then the risk-utility analysis should be left to
the jury.

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.
This

case

shall

proceed

to

trial

in

August

2018

on

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.
CONCLUSION
For

the

preceding

reasons,

Plaintiff’s

motion

for

reconsideration (ECF No. 48) is granted in part and denied in
part.
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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