Schiller v. Eli Lilly and Company et al

Filing 48

MEMORANDUM OPINION AND ORDER: 1. Defendant Xanodyne Pharmaceuticals, Inc.'s Motion for Summary Judgment [Record No. 2971 in case 2:11-md-02226-DCR; 46 in case 2:12-cv-00247-DCR] is GRANTED. 2. The claims asserted in this action by Plaintiff Ju dy Schiller against Defendant Xanodyne Pharmaceuticals, Inc., are DISMISSED, with prejudice. Signed by Judge Danny C. Reeves on 4/7/2014. Associated Cases: 2:11-md-02226-DCR, 2:12-cv-00247-DCR(CBD)cc: COR w/ copy to Judy Schiller via US Mail Modified doc. type on 4/7/2014 (CBD).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
(at Covington)
IN RE: DARVOCET, DARVON AND
PROPOXYPHENE PRODUCTS
LIABILITY LITIGATION

Judy Schiller v. Eli Lilly & Company,
et al.,

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Master File No. 2: 11-md-2226-DCR
MDL Docket No. 2226
Civil Action No. 2: 12-247-DCR

MEMORANDUM OPINION
AND ORDER

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Plaintiff Judy Schiller filed this action on November 19, 2012, in the United States
District Court for District of New Jersey. [Record No. 1] This case, together with dozens of
similar cases, was later transferred to this Court for consolidated pre-trial proceedings. [Record
No. 3] The matter is currently pending for consideration of Defendant Xanodyne
Pharmaceuticals, Inc.’s (“Xanodyne”) motion for summary judgment. [Record No. 46]1 Schiller
has not responded to the defendant’s motion. After considering the record and authorities cited
by Xanodyne, the Court will granted the relief requested by the defendant.
I.
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

1
Schiller was represented by counsel at the time the action was filed. However, she is currently
proceeding pro se.

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R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Chao v. Hall
Holding Co., 285 F.3d 415, 424 (6th Cir. 2002). A dispute over a material fact is not “genuine”
unless a reasonable jury could return a verdict for the nonmoving party.

That is, the

determination must be “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
The party moving for summary judgment bears the burden of showing conclusively that
no genuine issue of material fact exists. CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir.
2008). Once the moving party has met its burden of production, “its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts.” Sigler v. Am.
Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead, the nonmoving party must present
“significant probative evidence” of a genuine dispute . . . to defeat the motion for summary
judgment. Chao, 285 F.3d at 424. The nonmoving party cannot simply rely upon the assertions
in its pleadings; rather, it must come forward with probative evidence, such as sworn affidavits,
to support its claims. Celotex, 477 U.S. at 324. In deciding whether to grant summary judgment,
the Court views all the facts and inferences drawn from the evidence in the light most favorable
to the nonmoving party. Matsushita, 475 U.S. at 587.
The facts supporting Xanodyne’s present motion are undisputed. Schiller’s claims are
based upon initial allegations that she ingested prescription medication containing
propoxyphene. However, her discovery responses (including her responses to the defendants’

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Product Identification Interrogatories and Requests for Production) fail to identify any Xanodyne
product that she ingested.2 The plaintiff’s Rite Aid records indicate that Schiller was dispensed
products containing propoxyphene during the period September 2003 through March 10, 2010.
But utilizing the National Drug Code (“NDC”) numbers, the pharmacy records do not identify
a Xanodyne product ingested by Schiller. Likewise, Schiller’s responses to the Plaintiff Fact
Sheet do not identify Xanodyne as the manufacturer or seller of any product that she ingested.
In addressing Schiller’s claims, the Court does not write on a blank slate. Instead, as
outlined in its March 5, 2012, Memorandum Opinion and Order, under Kentucky, Ohio and New
Jersey law, “it is well-settled that a ‘threshold requirement of any products-liability claim is that
the plaintiff assert that the defendant’s product caused the injury.’ . . . There is no theory of
products liability under which a defendant can be held liable for an injury caused by a product
that it did not sell, manufacture, or otherwise supply to the plaintiff.” (Citations and footnote
omitted.) [See MDL Record No. 1274, at p. 5.] Further, Sixth Circuit and other relevant authority
support this Court’s conclusions that the plaintiff’s claims cannot survive summary judgment
under the facts presented. Smith v. Wyeth, Inc., 657 F.3d 420 (6th Cir. 2011), reh’g denied (Nov.
22, 2011), petition for cert. denied (Apr. 30, 2012); Strayhorn v. Wyeth, Inc., 737 F.3d 378 (6th
Cir. 2013); Miles v. Raymond Corp., 612 F.Supp.2d 913, 917 (N.D. Ohio 2009); Kurczi v. Eli
Lilly and Company, 113 F.3d 1426, 1432-33 (6th Cir. 1997) (requiring proof of product

2
Schiller claims that her subject prescriptions were filled at a Rite Aid pharmacy on West Perry Street
in Port Clinton, Ohio. However, she does not identify any NDC numbers in her discovery responses. Instead,
she refers to the Rite Aid pharmacy records as “proof” that she took products manufactured by the defendants.
Schiller’s prescription records are attached to the Affidavit of Kimberly Beck as Exhibit B. [See Record No.
47-1, Exhibit B, pp. 10-11.]

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identification under Ohio law as a prerequisite to liability); Sutowski v. Eli Lilly and Company,
696 N.E.2d 187, 189-92 (Ohio 1998) (rejecting market share theory of liability); and Ohio Rev.
Code §§ 2307.71(B) and 2307.73(A)(3) (The Ohio Product Liability Act is intended to abrogate
all common law product liability claims or causes of action and an essential element of a claim
under the act is proof that the defendant manufactured or sold the specific product that allegedly
injured the plaintiff.).
In addition to plaintiff’s product liability claims, her misrepresentation claim also fails.
First, such claim is still subject to the production identification requirement that applies to
general product liability claims. Second, the claim fails because Xanodyne did not owe a duty
of care to individuals who did not ingest a product that it manufactured, sold or dispensed.
[MDL Record No. 1274, at p. 9-10.] See Smith v. Wyeth, Inc., 657 F.3d at 422; Strayhorn v.
Wyeth, Inc., 737 F.3d at 397.
Based on the foregoing analysis and discussion, it is hereby
ORDERED as follows:
1.

Defendant Xanodyne Pharmaceuticals, Inc.’s Motion for Summary Judgment

[Record No. 46] is GRANTED.
2.

The claims asserted in this action by Plaintiff Judy Schiller against Defendant

Xanodyne Pharmaceuticals, Inc., are DISMISSED, with prejudice.
This 7th day of April, 2014.

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