Gross v. Pfizer, Inc. et al

Filing 79

MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 9/7/11. (cms, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

SHIRLEY GROSS,
Plaintiff,
v.

Civil Action No. 10-CV-00110-AW

PFIZER, INC., et. al,
Defendants.

MEMORANDUM OPINION
Pending before the Court are Plaintiff Shirley Gross’ motion to alter or amend the Court’s
entry of final judgment in favor of brand-name-manufacturer Defendants, Doc. No. 74, and
Plaintiff’s motion to lift stay, Doc. No. 76. The Court has reviewed the motions and all
supporting documents and finds no hearing is necessary. See MD. LOC. R. 105.6 (D. Md. 2010).
For the reasons articulated below, the Court DENIES Plaintiff’s motion to alter or amend
judgment and GRANTS-IN-PART Plaintiff’s motion to lift stay for the limited purpose of
allowing Plaintiff and Defendant Pliva to brief the Court on the impact of the Mensing decision.

I.

FACTUAL & PROCEDURAL BACKGROUND
The following facts are taken from the Court’s prior Memorandum Opinion with changes

as necessary to reflect the current motions pending before the Court. Plaintiff filed this action as
a result of injuries she suffered from ingesting the prescription drug metoclopramide. Plaintiff
stipulates that the drugs she consumed are a generic form of metoclopramide manufactured by

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Defendant Pliva USA, Inc. (“Pliva”), and that she has not ingested any metoclopramide product
manufactured by Defendants Pfizer, Wyeth or Schwarz. See Doc. No. 54. Plaintiff nonetheless
filed suit against the latter three on theories of negligence, breach of warranty, strict product
liability, and misrepresentation. Defendants argued that summary judgment should be granted in
their favor on all claims because Maryland law only allows drug defect claims to proceed against
the manufacturer whose drug caused the injury. See Doc. No. 56. On November 9, 2010, the
Court granted Defendants summary judgment on that basis. Doc. No. 63. Defendants then moved
for entry of final judgment, Doc. No. 65, which the Court granted on April 4, 2011, Doc. No. 73.
Plaintiff did not oppose Defendants’ motion for entry of final judgment at that time. Plaintiff
now moves for reconsideration of the Court’s entry of judgment under Federal Rule 59(e). Doc.
No. 74. Defendants filed a responsive brief opposing Plaintiff’s motion on May 5, 2011. Doc.
No. 75. Plaintiff did not file a reply, and the time period allotted for Plaintiff’s reply has expired.
Thus, the motion is now ripe for review.
Additionally, Plaintiff moves to lift the stay issued by the Court on April 7, 2011, which
stayed further activity in this case pending the Supreme Court’s decision in Pliva, Inc. v.
Mensing. The Court granted Defendant Pliva’s motion to stay on the grounds that the opinion of
the Supreme Court may require dismissal of the claims against Pliva and would provide guidance
as to the nature of any surviving claims. The Supreme Court has since issued its opinion. See 131
S.Ct. 2567 (2011). Defendant Pliva does not oppose reopening the case but requests that the
Court continue a partial stay of all discovery and trial deadlines and set a briefing schedule
regarding the impact of the Mensing decision on the viability of Plaintiff’s claims against Pliva.
Plaintiff does not oppose continuing a partial stay of discovery at this time. Doc. No. 78.

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II.

STANDARD OF REVIEW
Under Rule 59(e), a Court can amend an earlier judgment: “(1) to accommodate an

intervening change in controlling law; (2) to account for new evidence not available at trial; or
(3) to correct a clear error of law or prevent manifest injustice.” Hutchinson v. Stanton, 994 F.2d
1076, 1081 (4th Cir. 1993). Reconsideration is, however, an extraordinary remedy. Pac. Ins. Co.
v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).

III.

ANALYSIS
A.

Plaintiff’s Motion for Reconsideration

Plaintiff seeks reconsideration of the Court’s order entering final judgment against brandname Defendants,1 contending that recent developments cast doubt on the basis upon which
summary judgment was granted to Defendants, and that new case law offers additional support
for Plaintiff’s arguments against dismissal of the claims against Defendants. Plaintiff’s
arguments rely largely upon conjecture about possible outcomes of the Supreme Court’s decision
in Mensing. Because the Supreme Court has since issued its judgment in that case, see 131 S.Ct.
2567 (2011), the Court will analyze Plaintiff’s arguments in light of this subsequent
development.
Primarily, Plaintiff contends that the Supreme Court’s then-upcoming decision in
Mensing could call into question the Fourth Circuit’s holding in Foster v. American Home
Products Corp. This Court looked to Foster, a case strikingly similar to the case at bar, in
granting Defendants’ motion for summary judgment. See Foster, 29 F.3d 165 (4th Cir. 1994).
Foster held that, in drug-defect cases, Maryland law only permits plaintiffs to pursue claims

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Throughout this section, “Defendants” refers to the brand-name-manufacturer Defendants Pfizer, Wyeth, and
Schwarz.

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against the manufacturer of the drug that caused their injury. Id. at 167. Because Plaintiff
stipulates that she was not injured by Defendants’ drugs but rather by a generic drug, the Court
found summary judgment in favor of Defendants to be proper under Foster. Plaintiff contends
that the Supreme Court’s decision in Mensing could compromise the central underpinnings of the
Fourth Circuit’s decision in Foster. In Mensing, the Supreme Court reviewed whether state
failure-to-warn claims against generic manufacturers are preempted by federal law. Plaintiff
contends that the precedential value of Foster would be thrown into question if the Supreme
Court determined in Mensing that generic manufacturers are in fact shielded from liability for
injuries caused by their drugs. See Doc. No. 74 Ex. 1 at 5. Accordingly, Plaintiff contends that
entry of final judgment in favor of Defendants was improper.
However, the Supreme Court’s opinion in Mensing in fact gave this Court no reason to
reconsider its entry of final judgment in favor of Defendants. In Mensing, the Supreme Court
held that federal law pre-empted Louisiana and Minnesota state laws that imposed a duty on
generic drug manufacturers to change a drug’s label. The Supreme Court’s holding in Mensing
neither created nor abrogated any duty under Maryland law with regard to brand-namemanufacturers like Defendants. Accordingly, the holding in Mensing does not disturb the
grounds upon which this Court granted entry of final judgment in favor of Defendants.
Accordingly, Plaintiff’s motion for reconsideration is denied.

B.

Plaintiff’s Motion to Lift Stay

On April 7, 2011, the Court granted Defendant Pliva’s motion to stay proceedings
pending the Supreme Court’s decision in Mensing. The Court granted Pliva’s motion on the
grounds that the opinion of the Supreme Court may require dismissal of the claims against Pliva

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and would provide guidance as to the nature of any surviving claims. After the Supreme Court
issued its decision, Plaintiff moved to lift the stay and requested the Court to hold a scheduling
conference in order to set a trial date and establish other deadlines as necessary. Doc. No. 76.
Pliva requested that the Court continue a partial stay of all discovery and trial deadlines, Doc.
No. 77, which Plaintiff does not oppose, Doc. No. 78. The Court finds that reopening the case is
proper given the issuance of the Supreme Court’s opinion in Mensing. However, in the interests
of judicial economy, the Court will continue to stay discovery pending briefing by the parties
regarding the dispositive impact of the Mensing decision.

IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion for reconsideration under Federal Rule 59(e)

is DENIED. However, Plaintiff’s motion to lift stay is GRANTED-IN-PART, meaning that the
Court will reopen the case for the limited purpose of allowing Plaintiff and Defendant Pliva to
brief the Court on the impact of the Supreme Court’s decision in Pliva, Inc. v. Mensing. A
separate order will follow.

September 7, 2011
Date

/s/
Alexander Williams, Jr.
United States District Judge

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