Gannon v. Bayer Healthcare Pharmaceuticals Inc et al
Filing
41
ORDER granting 33 Motion for Judgment on the Pleadings. Signed by Judge David R. Herndon on 11/18/2015. (dsw)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
------------------------------------------------------------
X
IN RE YASMIN AND YAZ (DROSPIRENONE)
MARKETING, SALES PRACTICES AND
PRODUCTS LIABILITY LITIGATION
3:09-md-02100-DRH-PMF
MDL No. 2100
-----------------------------------------------------------Judge David R. Herndon
This Document Relates to:
Gail Gannon v. Bayer Healthcare
Pharmaceuticals, Inc., et al. No. 3:13-cv-10143DRH-PMF
ORDER
HERNDON, District Judge:
I.
INTRODUCTION
Before the Court is defendant Teva Pharmaceuticals USA's (“Teva”) motion,
pursuant to Federal Rules of Civil Procedure 12(c) and 56, to enter judgment in
its favor on plaintiff’s claims (Doc. 33) and memorandum of law in support
thereof (Doc. 34). Plaintiff has filed a response in opposition (Doc. 39), to which
defendant has replied in accordance with Local Rule 7.1(c) (Doc. 40). Teva
contends plaintiff’s claims are preempted under federal law and Teva otherwise is
entitled to judgment. For the following reasons, Teva’s motion is GRANTED.
II.
BACKGROUND
On July 24, 2013, Teva filed a motion in 32 cases, including the above
captioned case, seeking leave to file a motion for judgment on the pleadings
directed to all claims against them asserting liability for injuries arising from
ingestion of Gianvi (Doc. 8). Teva asserted the plaintiffs’ claims were preempted
under Bartlett and Mensing (Doc. 8). The Court granted leave on July 30, 2013
(Doc. 9). Thereafter, on August 27, 2013, the plaintiffs sought leave to file
amended complaints (Doc. 12). Teva filed a response in opposition (Doc. 15) and
the plaintiffs replied (Doc. 16). The Court allowed plaintiffs until September 30,
2013 to file amended complaints (Doc. 17). Further, the Court directed that after
September 30, 2013, Teva could proceed with filing its motions to dismiss (Doc.
17).
In the instant case, plaintiff filed an amended complaint (Doc. 20). Teva
filed its initial motion for judgment on the pleadings on November 14, 2013 (Doc.
23). On April 24, 2014, the Court granted in part and denied in part Teva’s initial
motion for judgment on the pleadings (Doc. 30) (“April Order).
In the Court’s April Order, the undersigned granted Teva’s motion for
judgment on the pleadings as to Count III (Defect Due to Inadequate Warning)
finding that this claim was preempted by federal law. The Court declined to
dismiss the following claims: Count I Strict Products Liability (Defective
Manufacturing); Count IV (Negligence and Negligent Misrepresentation); Count VI
(Fraud and Misrepresentation); Count VIII (Breach of Express Warranty); and
Count IX (Violation of the Illinois Consumer Fraud and Deceptive Business
Practices Act). As to these claims, the Court found Teva failed to meet its burden
of proof with regard to federal preemption and further explained as follows:
Teva merely asks the Court to construe all of the plaintiff’s claims as
failure to warn claims and to conclude that the claims are preempt
under Mensing. This is not sufficient, in order to meet its burden,
Teva must identify the state law duties associated with the remaining
causes of action and provide the Court with an analysis of how those
duties conflict with federal law.
(Doc. 30 p. 23).
The Court also declined to dismiss Count II of the plaintiff’s complaint
(Design Defect). The Court recognized Bartlett held state-law design defect claims
are preempted. However, the Court denied Teva’s motion as to the plaintiff’s
design defect claim “to the extent that the claim parallels the federal misbranding
statute” (Doc. 30 p. 22). The Court’s decision as to this claim was based on an
apparent exception in Bartlett relating to claims that parallel the federal
misbranding statute.
On May 29, 2014, Teva sought leave to file an additional dispositive motion
(Doc. 30). The Court granted leave and Teva filed the present motion on January
23, 2015 (Doc. 33 and Doc. 34).
III.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(c) allows a party to move for judgment
on the pleadings. Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452–53 (7th Cir.
1998). In reviewing a Rule 12(c) motion, a court applies the same standards
applicable to a Rule 12(b)(6) motion seeking dismissal for failure to state a claim.
See Buchanan–Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009).
Thus, a court accepts as true all well-pled factual allegations and draws all
reasonable inferences in the plaintiff's favor. See Rujawitz v. Martin, 561 F.3d
685, 688 (7th Cir. 2009). Only when it appears beyond a doubt that the plaintiff
cannot prove any facts to support a claim for relief and the moving party
demonstrates that there are no material issues of fact to be resolved will a court
grant a Rule 12(c) motion. Brunt v. Serv. Employees Int'l Union, 284 F.3d 715,
718–719 (7th Cir. 2002) (citing N. Indiana Gun & Outdoor Shows, Inc. v. City of
South Bend, 163 F.3d 449, 452 (7th Cir. 1998)). Although the court should
accept as true all well-pleaded allegations and should view the complaint in a light
most favorable to the plaintiff, the “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555.
If the Court considers evidence outside the pleadings, a motion for
judgment on the pleadings is treated as one for summary judgment. FED. R. CIV.
P. 12(d). However, a district court may take judicial notice of matters of public
record without converting a Rule 12 motion into a motion for summary judgment.
Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.
1997).
Summary judgment is appropriate when the record, viewed in the light
most favorable to the non-moving party, reveals that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56; Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009).
A “genuine issue” of material fact in the context of a motion for summary
judgment is not simply a “metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986). Rather, a genuine issue of material fact exists when “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th
Cir.2000).
IV.
ANALYSIS
A. Teva is Entitled to Judgment on the Pleadings as to Count II (Design
Defect); Count IV (Negligence and Negligent Misrepresentation); Count
VI (Fraud and Misrepresentation); Count VIII (Breach of Express
Warranty); and Count IX (Violation of the Illinois Consumer Fraud and
Deceptive Business Practices Act
1. Count II - Design Defect
As noted above, in the Court’s April Order, the undersigned recognized
Bartlett held state-law design defect claims are preempted. However, the Court
denied Teva’s motion as to the plaintiff’s design defect claim “to the extent that the
claim parallels the federal misbranding statute” (Doc. 30 p. 22). The Court further
noted that a parallel misbranding claim must be based on scientific information
that was not available when the drug was approved by the FDA.
The Courts decision with regard to the viability of parallel misbranding
claims was premised on a footnote (hereinafter “Footnote 4”) found in Mutual
Pharmaceutical Co., Inc. v. Bartlett, 133 S. Ct. 2466 (2013). Footnote 4, provides
as follows:
We do not address state design-defect claims that parallel the federal
misbranding statute. The misbranding statute requires a
manufacturer to pull even an FDA-approved drug from the market
when it is “dangerous to health” even if “used in the dosage or
manner, or with the frequency or duration prescribed,
recommended, or suggested in the labeling thereof.” 21 U.S.C. §
352(j); cf. Bates v. Dow Agrosciences LLC, 544 U.S. 431, 447, 125
S.Ct. 1788, 161 L.Ed.2d 687 (2005) (state-law pesticide labeling
requirement not pre-empted under express pre-emption provision,
provided it was “equivalent to, and fully consistent with, [federal]
misbranding provisions”). The parties and the Government appear to
agree that a drug is misbranded under federal law only when liability
is based on new and scientifically significant information that was not
before the FDA.
Because the jury was not asked to find whether new evidence
concerning sulindac that had not been made available to the FDA
rendered sulindac so dangerous as to be misbranded under the
federal misbranding statute, the misbranding provision is not
applicable here. Cf. 760 F.Supp.2d 220, 233 (D.N.H.2011) (most of
respondent's experts' testimony was “drawn directly from the medical
literature or published FDA analyses”).
Id. at 2477 n. 4.
In light of the above, the Court then considered whether plaintiff’s design
defect claim, viewed under the guise of a federal misbranding claim, could survive
Teva’s motion for judgment on the pleadings. The Court concluded the claim
could proceed to the extent it paralleled a federal misbranding claim. The Court’s
decision was grounded on (1) the assumption that the plaintiff had pled a viable
state law design defect claim identical to a federal misbranding claim and (2) the
finding that plaintiff’s design defect claim included sufficient allegations regarding
new information not previously made available to the FDA.
Approximately two months after this Court’s April Order, in In re Darvocet,
Darvon, & Propoxyphene Products Liab. Litig., 756 F.3d 917, 928 (6th Cir. 2014)
the Sixth Circuit Court of Appeals considered whether a state parallel
misbranding claim escapes preemption in relation to Bartlett and Footnote 4.
Initially, the Sixth Circuit acknowledged the confusion surrounding Footnote 4.
Id. at 929 (“Academics, commentators, and even the parties to this case are not
clear on what precisely Footnote 4 means and what its impact might be.” ). The
Sixth Circuit then went on to address Footnote 4’s genesis and explained as
follows:
In Bartlett, the FDA argued in an amicus brief that Mensing's
preemption analysis applied only to claims that turn on the adequacy
of the drug labeling. The FDA distinguished those claims from “pure”
design defect claims, which it argued are preempted unless they
“parallel the FDCA's drug ‘misbranding’ prohibition.” FDA Br.,
Bartlett, 2013 WL 314460, at *23 (citation omitted). The FDA
continued: “[A] manufacturer has a federal duty not to market a drug
if, inter alia, it is ‘dangerous to health’ when used as provided in the
labeling. A state-law duty not to market the drug in the same
circumstances would not conflict with federal law if it appropriately
accounted for [the] FDA's role under the FDCA.” Id. The Bartlett
Court responded to this argument in Footnote 4, remarking that its
holding “[does] not address state design defect claims that parallel
the federal misbranding statute.” Bartlett, 133 S.Ct. at 2477 n. 4. It is
not clear whether this language implies that an exception for “parallel
misbranding” claims actually exists.
Id. Ultimately, the Sixth Circuit declined to address whether the language in
Footnote 4 implies that an exception for “parallel misbranding” actually exists.
Instead, the Sixth Circuit concluded, to the extent a claim for parallel
misbranding does exist, the plaintiffs failed to properly plead such a claim. Id. In
conducting its analysis, the Sixth Circuit explained that if a parallel misbranding
claim does exist, in order to avoid preemption, a plaintiff must:
(1) allege a cause of action for misbranding under state law, (2)
identify the ‘new and scientifically significant information that was
not before the FDA,’ and (3) demonstrate that the FDA would have
found the drug to be misbranded in light of this new information in
order to “appropriately account for the FDA's role under the FDCA.”
Id. at 929 (quoting FDA Br., Bartlett, 2013 WL 314460 at *24; Bartlett, 133 S.Ct.
at 2477 n. 4.)
Here, Teva contends the background of Footnote 4 demonstrates the
assumption underlying the Court’s April Order, that Bartlett allowed an exception
for parallel misbranding claims, is without foundation. Additionally, Teva
contends, even if such an exception existed, Teva would still be entitled to
judgment on plaintiff’s design-defect claim because (1) if such an exception exists,
it only applies to “pure” design defect claims that parallel the federal misbranding
statute and (2) there is no “pure” design defect claim in Illinois. Finally, Teva
argues, assuming Bartlett allows an exception for parallel misbranding claims and
assuming the plaintiff has pled a viable state law design defect claim that is
identical to a federal misbranding claim, Teva is still entitled to judgment because
plaintiff cannot establish her claim is based on scientific information that was not
available to the FDA. With regard to this final point, Teva relies on various public
records and asks the Court to take judicial notice of the same.
The Court acknowledges the background of Footnote 4 raises a legitimate
question as to whether Bartlett indicates an exception for “parallel misbranding”
claims actually exists. However, the Court need not resolve that issue in the
present case. After reviewing the briefing and relevant authority, the Court agrees
with Teva’s position as to “pure” design defect claims. Assuming Bartlett allows an
exception for parallel misbranding claims, the exception only applies to “pure”
design defect claims i.e. design defect claims that do not turn on the adequacy of
drug labeling.
Despite the plaintiff’s arguments to the contrary, the Court finds that
plaintiff cannot assert a “pure” design defect claim under Illinois law. Illinois has
adopted comment k of the Restatement (Second) of Torts § 402A, whereby a drug
is not defectively designed if it is “unavoidably unsafe and is properly prepared
and there are adequate warnings.” Accordingly, the viability of plaintiff’s design
defect claim necessarily turns on the adequacy of the subject drug’s labeling. The
Supreme Court has held that a claim of this nature is preempt. Mensing, 131 S.
Ct. at 2574, 2578; Bartlett, 133 S. Ct. at 2476.
Because the plaintiff’s design defect claim necessarily turns on the
adequacy of Gianvi’s product labeling, the claim is preempted under Mensing and
Bartlett. 1 Accordingly, Teva’s motion for judgment on the pleadings as to this
claim is GRANTED.
The Court’s preemption finding negates any need to assess matters
pertaining to scientific information allegedly not made available to the FDA.
Additionally, as is discussed more fully below, it moots the plaintiff’s request for
time to conduct additional discovery on this matter.
Plaintiff’s additional arguments regarding “unique” circumstances and
other possible “theories” are an attempt to insert allegations and theories not
previously asserted or already rejected by the Supreme Court. At this late date,
the plaintiff’s request to amend her complaint is DENIED.
2. Plaintiff’s Remaining Warning-Based Claims
Despite the plaintiff’s arguments to the contrary, the motion presently before
the
Court
demonstrates
that
Count
IV
(Negligence
and
Negligent
Misrepresentation); Count VI (Fraud and Misrepresentation); Count VIII (Breach
of Express Warranty); and Count IX (Violation of the Illinois Consumer Fraud and
Deceptive Business Practices Act) are all premised on alleged misrepresentations
or inaccuracies in Gianvi’s labeling. As such, these claims are preempted by
federal law under Bartlett and Mensing.
As noted in Teva’s briefing, plaintiff cannot pursue a claim under 410 ILCS § 620/3, et seq.
because this statute does not provide for a private right of action.
1
As
set
forth
in
Teva’s
briefing,
plaintiff’s
fraud,
negligence,
and
misrepresentation claims (Counts IV and VI) are premised on misrepresentations
or inadequacies in Gianvi’s labeling, promotions, and advertisements. As such,
Teva could only avoid liability as to these claims by unilaterally strengthening
their warning labels in violation of federal law or by leaving the marketplace
altogether. Mensing and Bartlett establish that such challenges to Gianvi’s labeling
are preempted.
At this late date, the plaintiff’s request for leave to amend her complaint to
allege Teva made false or misleading misrepresentations to her prescribing
physician, apart from any communications contained in the product label (or to
conduct discovery regarding the same) is DENIED.
Plaintiff’s express warranty claim fairs no better (Count VIII). An express
warranty is an affirmation of fact that becomes part of the basis of the bargain
between the parties. See, e.g., Medline Indus., Inc. v. Ram Med., Inc., 892 F.
Supp. 2d 957, 968 (N.D.Ill. 2012) (Lefkow, J.) (citing Oggi Trattoria & Caffe, Ltd.
v. Isuzu Motors Am., Inc., 372 Ill. App. 3d 354, 865 N.E.2d 334, 340 (Ill. App.
2007)). Accordingly, the seller’s duty is to provide accurate information. This duty
implicates Gianvi’s labeling. Accordingly, plaintiff’s express warranty claim is
preempted. See, e.g., Schrock v. Wyeth, Inc., 727 F.3d 1273, 1287-88 (10th Cir.
2013) (affirming dismissal of express warranty claim, noting “[k]ey to the Mensing
decision was FDA’s broad definition of ‘labeling’” and holding there was no
mechanism by “which [the generic drug manufacturer] could have modified or
supplemented the warranties allegedly breached without running afoul of the duty
of sameness identified in Mensing”).
Plaintiff alleges Teva violated the Illinois Consumer Fraud & Deceptive
Practices Act, 815 ILCS § 505/1, et seq. (the “ICFA”) (Count IX) “by the use of false
and misleading misrepresentations or omissions of material fact” and by
“communicat[ing] the purported benefits of Yaz®/Gianvi® while failing to disclose
the serious and dangerous side effects related to the use of Yaz®/Gianvi® to
consumers and healthcare providers.” (Doc. 20 ¶¶200, 201). 2 As detailed in Teva’s
briefing, plaintiff’s ICFA claims are premised on alleged misrepresentations or
omissions of fact regarding Gianvi contained in the product’s labeling. These
claims necessarily turn on Teva’s alleged duty to either provide labeling with
different or additional information or to stop selling Gianvi. Thus, plaintiff’s ICFA
claim is preempted by federal law under Mensing and Bartlett.
Accordingly, Teva’s motion for judgment on the pleadings as to these claims
is GRANTED.
B. Teva is Entitled to Summary Judgment on Plaintiff’s Manufacturing
Defect Claim
Teva does not argue plaintiff’s manufacturing defect claim is preempted.
Instead, Teva contends it is entitled to summary judgment on plaintiff’s
manufacturing defect claim because there is no evidence supporting such a claim.
2
To prevail on an ICFA claim, plaintiff must establish: (1) a deceptive act or practice, (2) intent
that plaintiff rely on the deception, (3) the occurrence of the deception in the course of conduct
involving trade or commerce, and (4) actual damage to her (5) proximately caused by the
deception. See Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100, 180 (Ill. 2005).
Specifically, Teva notes the plaintiff admits as follows in her sworn Plaintiff Fact
Sheet: (1) neither she nor her attorneys have the packaging from the Gianvi
product she allegedly used; (2) she does not know the lot number(s) for any of the
Gianvi she received; and (3) she does not know the expiration date for any of the
Gianvi she received. Further, plaintiff does not allege that she has any of the
Gianvi pills or that any of the pills were tested and shown to “deviate from
product specification.” (Doc. 35-3).
Plaintiff does not dispute these admissions. Instead, plaintiff notes that her
pharmacy records (obtained by Teva during discovery) have revealed the national
drug code number of the Gianvi plaintiff used at the time of her injuries. The
plaintiff states she should be permitted to conduct discovery with regard to the
manufacturing process to support her claim.
“A manufacturing defect occurs when one unit in a product line is
defective.” Salerno v. Innovative Surveillance Tech., Inc., 402 Ill.App.3d 490, 342
Ill.Dec. 210, 932 N.E.2d 101, 108 (2010), citing Blue v. Envtl. Eng'g, Inc., 215
Ill.2d 78, 293 Ill.Dec. 630, 828 N.E.2d 1128, 1137 (2005). “Generally speaking,
manufacturing defects result from qualities of a product not intended by the
manufacturer.” Mech. Rubber & Supply Co. v. Caterpillar Tractor Co., 80
Ill.App.3d 262, 35 Ill.Dec. 656, 399 N.E.2d 722, 723 (1980).
This Court agrees with Teva; the plaintiff has not come forward with any
evidence that the Gianvi she ingested deviated in any way from its intended
design. As noted above, it is undisputed the plaintiff no longer has the product.
Accordingly, the plaintiff does not have any direct evidence of a manufacturing
defect. The lack of direct evidence, however, is not dispositive. See DiCosolo v.
Janssen Pharmaceuticals, Inc., 351 Ill.Dec. 574, 951 N.E.2d 1238 (2011)
(“Illinois courts have acknowledged that the unavailability of the product does not
preclude a plaintiff from proving that a product was defective through
circumstantial evidence.”). A plaintiff may also rely on circumstantial evidence,
including expert testimony to establish a manufacturing defect. See Id. at 1247
(“The plaintiff may rely on direct or circumstantial evidence to establish his case
or on expert testimony ...; indeed, expert testimony is merely one kind of
circumstantial evidence.”).
Here, the plaintiff has not come forward with any circumstantial evidence
establishing a manufacturing defect and her admissions indicate that she cannot
come forward with any such evidence. For instance, the plaintiff has no
information regarding the lot number of the product she ingested. Thus, unlike
the plaintiff in Dicosolo, she cannot demonstrate the drug she ingested came from
a lot of drugs that had been subject to a recall. The plaintiff also has not
presented any expert that would support her manufacturing defect claim. There is
simply no evidence in the record, direct or circumstantial, supporting a
manufacturing defect claim and the plaintiff’s own admissions indicate that no
such information is available.
Accordingly, Teva’s motion for summary judgment, as to the plaintiff’s
manufacturing defect claim is GRANTED.
C. Plaintiff’s Rule 56(d) motion
The plaintiff’s response in opposition includes a motion, pursuant to Rule
56(d), asking the Court to defer ruling on Teva’s summary judgment motion and
requesting additional discovery (Doc. 39 § II). Under Rule 56(d) “[i]f a nonmovant
shows by affidavit or declaration that, for specified reasons, it cannot present
facts essential to justify its opposition, the court may: (1) defer considering the
motion or deny it; (2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.” Fed.R.Civ.P. 56(d). Rule
56(d) “is intended as a safeguard against a premature grant of summary
judgment.” King v. Cooke, 26 F.3d 720, 726 (7th Cir.1994).
Plaintiff states that for reasons of “judicial economy” she has been “hesitant
to engage in discovery against generic defendants.” (Doc. 39 p. 4). She further
states that although she anticipated a possible renewed motion for judgment on
the pleadings, she did not anticipate a motion for summary judgment at this stage
in the litigation (Doc. 39-1 ¶ 8, Affidavit of Roger Denton). Plaintiff’s motion states
she would seek the following in discovery:
Corporate Representative depositions pursuant to Federal Rule of
Civil Procedure 30(b)(6) and related document requests on the
following topics: (1) Teva’s corporate structure; (2) Teva’s
manufacturing, sale, and promotion of Gianvi; (3) contractual
agreements between Teva and Bayer; (3) Teva’s involvement in
clinical trials related to drospirenone; and (4) Teva’s knowledge of
scientific studies showing increased risk of drospirenone and related
communications with the FDA.
(Doc. 39 p. 5).
Plaintiff cannot establish that she is entitled to Rule 56(d) relief. Rule 56(d)
“is not a shield that can be raised to block a motion for summary judgment
without even the slightest showing by the opposing party that his opposition is
meritorious.” Korf v. Ball State Univ., 726 F.2d 1222, 1230 (7th Cir. 1984). In
other words, Rule 56(d) requires a party opposing summary judgment to do more
than request a “fishing expedition” in the hope of finding evidence sufficient to
establish the existence of a genuine issue of material fact. Davis v. G.N. Mortgage
Corp., 396 F.3d 869, 885 (7th Cir. 2005). Rule 56(d) places the burden on the
nonmovant opposing summary judgment to “state the reasons why the party
cannot adequately respond to the summary judgment motion without further
discovery.” Deere & Co. v. Ohio Gear, 462 F.3d 701, 706 (7th Cir.2006). If the
reasons identified by the non-movant are not material to the summary judgment
ruling, and the district court's decision would not differ if discovery were
conducted, a district court is within its discretion to deny the Rule 56(d) motion.
See Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 628 (7th Cir. 2014).
In the instant case, with the exception of plaintiff’s manufacturing defect
claim, the Court’s analysis is purely legal. As to all but the manufacturing defect
claim, Teva has identified the relevant state law duties and provided the Court
with an analysis of how those duties conflict with federal law. The Court’s purely
legal analysis with respect to these claims moots any request for additional
discovery as to the same.
As to the plaintiff’s manufacturing defect claim, the discovery requested in
plaintiff’s Rule 56(d) motion is wholly irrelevant. As is discussed above, the
material issue in the plaintiff’s manufacturing defect claim is whether the plaintiff
has come forward with evidence, direct or circumstantial, of a manufacturing
defect. Plaintiff fails to detail how the specified discovery would assist in this
regard. Although not mentioned in plaintiff’s Rule 56(d) motion, plaintiff’s
response states she “should be permitted to conduct discovery with regard to the
manufacturing process to support her defective manufacturing claim.” This
generic request is no more than a fishing expedition and does not warrant Rule
56(d) relief.
To the extent that other requests for additional discovery are peppered
throughout the plaintiff’s briefing, these requests likewise do not meet the
requirements for Rule 56(d) relief.
D. Permission for Filing a Motion for Summary Judgment
The Court’s initial case management order in MDL-2100 provides “No motion
shall be filed under Rule 11, 12 or 56 without leave of court and unless it includes a
certificate that the movant has conferred with opposing counsel in a good-faith effort
to resolve the matter without court action.” Initial Conference Order, ¶ 5(d). With
regard to the instant motion, Teva sought leave “to file an additional dispositive
motion seeking dismissal of all claims remaining against it in this case.” (Doc. 31).
Leave was granted on September 29, 2014 (Doc. 32). Plaintiff contends Teva only
sought leave to file a motion for judgment on the pleadings and did not seek leave to
file a Rule 56 motion. Accordingly, plaintiff objects to allowing Teva to proceed on its
motion for summary judgment.
While Teva’s motion only sought leave to file a motion for judgment on the
pleadings, there is no unfair surprise with regard to Teva filing a joint motion for
judgment on the pleadings and for summary judgment. This MDL was created in
2009 (plaintiff’s counsel serves as liaison counsel for MDL 2100). The Court is
confident, based on the numerous status conferences it has overseen in the last six
years, that during this time period the parties conferred on the issues raised in Teva’s
motion and were prepared to address the same. Further, the purpose of the Court’s
directive was to ensure that the parties attempted to resolve certain matters prior to
seeking a resolution from the Court. For reasons already stated, the Court is
confident that this occurred. Accordingly, the plaintiff’s objection on this issue is
overruled.
V.
CONCLUSION
For the reasons discussed herein, the Court GRANTS summary judgment in favor
of Teva as to Count I Strict Products Liability (Defective Manufacturing). For the
reasons discussed herein and in the Court’s April Order (Doc. 30) the Court
GRANTS Teva’s motion for judgment on the pleadings as to all remaining claims. As
all claims against Teva have been dismissed with prejudice, Teva will be
terminated from the above captioned action.
IT IS SO ORDERED.
Signed this 18th day of November, 2015.
Digitally signed
by Judge David R.
Herndon
Date: 2015.11.18
12:35:15 -06'00'
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?