Shaw v. Pfizer Inc. et al

Filing 86

ORDER Granting 72 Motion for Summary Judgment; Granting 73 Motion for Summary Judgment except for the motion filed by defendant Teva Pharmaceuticals USA, Inc.. Signed by Judge J. Frederick Motz on 7/10/2015. (bas, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
[phone] FAX

J. FREDERICK MOTZ
UNITED STATES DISTRICT JUDGE

July 10, 2015

MEMO TO COUNSEL RE: Franch Shaw v. Pfizer, Inc., et al.
Civil No. JFM-14-454
Dear Counsel:
I have reviewed the memoranda submitted in connection with defendants’ motions for
summary judgment. The motions (documents 72 and 73) are granted except for the motion filed
by defendant Teva Pharmaceuticals USA, Inc.
Plaintiff cannot establish that any of the defendants, other than perhaps Teva,
manufactured the drug administered to her. That is required by Maryland law as interpreted by
the Fourth Circuit. Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994).
Whatever merit there may be in plaintiff’s criticisms over the Foster decision, the Fourth Circuit
precedent is binding upon this court.
The provenance of the document replied upon by plaintiff to establish that Teva was the
manufacturer of the drug administered to plaintiff is not clear. A hearing on that issue will be
held on August 21, 2015 at 11:00 am. In the interim, plaintiff is requested to submit a letter
addressing the questions raised in Teva’s reply memorandum on or before July 31, 2015.
Alternatively, if the dynamics of the litigation warrant, you may wish to confer and
decide either for plaintiffs to seek an interlocutory appeal so that the Fourth Circuit can consider
the continued viability of the Foster decision or, alternatively, enter into an agreement that would
make my ruling in favor of all of the defendants other than Teva final and ripe for review without
prejudice to plaintiff’s rights against Teva.
Despite the informal nature of this letter, it should be flagged as an opinion and docketed
as an order.
Very truly yours,
/s/

J. Frederick Motz
United States District Judge