Burnham v. Wyeth Laboratories, Inc. et al

Filing 39

District Judge Timothy S. Hillman: MEMORANDUM AND ORDER entered granting 29 Motion to Dismiss. (Castles, Martin)

Case 4:18-cv-40050-TSH Document 39 Filed 12/14/18 Page 1 of 5

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
ARTHUR BURNHAM,
)
CIVIL ACTION
)
Plaintiff,
)
NO. 18-40050-TSH
)
)
v.
)
)
WYETH LABORATORIES INC.,
)
UNIVERSITY OF MASSACHUSETTS
)
MEDICAL CENTER; DR. NAWRAS
)
SHUKAIR, UNIVERSITY OF
)
MASSACHUETTS MEDICAL CENTER
)
PATIENT RECOVERY CENTER
)
SECURITY,
)
)
Defendants.
)
______________________________________ )
MEMORANDUM AND ORDER ON DEFENDANT WYETH PHARMACEUTICALS
LLC’S MOTION TO DISMISS
(Docket No. 29)
December 14, 2018
HILLMAN, D.J.
Arthur Burnham (“Plaintiff”) brings a variety of claims against several Defendants.
Relevant for the purposes of this motion, he brings a claim for product liability against Wyeth
Pharmaceuticals LLC (erroneously identified as “Wyeth Laboratories Inc.”) (“Defendant Wyeth”).
Defendant Wyeth filed a motion to dismiss for failure to state a claim upon which relief can be
granted (Docket No. 29). For the reasons below, Defendant Wyeth’s motion is granted.
Background
The following facts are taken from Plaintiff’s complaint and assumed to be true at this stage
of the litigation. (Docket No. 1).

Case 4:18-cv-40050-TSH Document 39 Filed 12/14/18 Page 2 of 5

On March 7, 2012, Plaintiff suffered a seizure while in custody of the Southbridge Police
Department and became incontinent. Plaintiff claims that Southbridge Police disseminated a video
of the incident, which mocked Plaintiff. Subsequently, Plaintiff developed “major depressive
disorder and suicide [sic] ideation with multiple self-mutilations.” Id. ¶ 9.
On June 14, 2015, Plaintiff voluntarily presented himself to the University of
Massachusetts’s Emergency Room. He reported having a “suicidal crisis” and contemplating
“suicide by cop.” Id. ¶ 15. Plaintiff notes that he was rated as “severe” on a crisis rating scale and
therefore required hospitalization.
On June 16, 2015, Plaintiff alleges that Dr. Shukair prescribed him Effexor “without being
warned or even explained [sic] what type of medication it was other then [sic] it was an aintdepressant [sic].” Id. ¶ 22. Later that day, Plaintiff experienced “shaking” chest muscles, elevated
heart rate, confusion, and became “highly upset.” Id. ¶ 25. Plaintiff subsequently requested to be
discharged and pushed through several hospital employees to leave. Metro Crime Prevention, who
had arrived due to Plaintiff’s aggressive behavior, told Plaintiff they were “not going to fight” him
and said, “if you want to leave just leave.” Id. ¶¶ 29, 88.
After Plaintiff left the hospital, he experienced suicidal ideation because he “was so
agitated at police over the video and mistreatment.” Id. ¶ 30. He then went to the police station,
doused a police car with gasoline, and lit the car on fire. He was subsequently arrested and sent to
Bridgewater State Hospital for psychiatric treatment.
Plaintiff filed this lawsuit bringing, among several other claims, a product liability claim
for defective Effexor against its manufacturer, Defendant Wyeth.
Standard
A defendant may move to dismiss, based solely on the complaint, for the plaintiff's “failure
to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule
2

Case 4:18-cv-40050-TSH Document 39 Filed 12/14/18 Page 3 of 5

12(b)(6) motion to dismiss, a complaint must allege “a plausible entitlement to relief.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955 (2007). Although detailed factual allegations
are not necessary to survive a motion to dismiss, the standard “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555.
“The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff
is asking the court to draw from the facts alleged in the complaint.” Ocasio-Hernandez v. FortunoBurset, 640 F.3d 1, 13 (1st Cir. 2011).
In evaluating a motion to dismiss, the court must accept all factual allegations in the
complaint as true and draw all reasonable inferences in the plaintiff’s favor. Langadinos v.
American Airlines, Inc., 199 F.3d 68, 68 (1st Cir. 2000). It is a “context-specific task” to determine
“whether a complaint states a plausible claim for relief,” one that “requires the reviewing court to
draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129
S.Ct. 1937 (2009) (internal citations omitted). “[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has
not ‘show[n]’—that the pleader is entitled to relief.” Id. (quoting Fed. R. Civ. P. 8(a)(2)). On the
other hand, a court may not disregard properly pled factual allegations, “even if it strikes a savvy
judge that actual proof of those facts is improbable.” Twombly, 550 U.S. at 556, 127 S.Ct. 1955.
Because Plaintiff appears pro se, we construe his pleadings more favorably than we would
those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197 (2007).
Nevertheless, Plaintiff's pro-se status does not excuse him from complying with procedural and
substantive law. See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).
Discussion
A plaintiff in a product liability case must demonstrate “(1) the defendant produced or sold
a defective product and (2) the product caused the plaintiff’s injury.” Fertik v. William Stevenson,
3

Case 4:18-cv-40050-TSH Document 39 Filed 12/14/18 Page 4 of 5

M.D., 186 F. Supp. 3d, 101-02 (D. Mass 2016). In order for a product to be deemed defective, a
plaintiff must demonstrate “a manufacturing defect, a design defect, or a warning defect, that is, a
failure reasonably to warn of the product’s foreseeable risks of harm.” Evans v. Lorillard Tobacco
Co., 465 Mass. 411, 422, 990 N.E.2d 997 (2013).
In order to establish a manufacturing defect, a plaintiff must demonstrate that there is a
“deviation from the design [that] rendered the product unreasonably dangerous and therefore unfit
for its ordinary purposes.” Back v. Wickes Corp., 375 Mass. 633, 641, 378 N.E.2d 964 (1978).
Here, Plaintiff has made no allegations to suggest that the medication he ingested deviated from
the drug’s intended design.
A design defect claim is not cognizable when the product at issue is a prescription
medication. The Second Restatement of Torts notes:
There are some products which, in the present state of human knowledge, are quite
incapable of being made safe for their intended and ordinary use. These are
especially common in the field of drugs . . . . Such a product, properly prepared,
and accompanied by proper directions and warning, is not defective, nor is it
unreasonably dangerous . . . .
Restatement (Second) of Torts § 402A cmt. k (1965). Massachusetts courts have consistently
followed the Restatement’s guidance. See, e.g., Vassallo v. Baxter Healthcare Corp., 428 Mass.
1,22,696 N.E.2d 909 (1998) (noting that “liability under the implied warranty of merchantability
in Massachusetts is congruent in nearly all respects with the principles expressed in Restatement
(Second) of Torts § 402A.” (citation and quotation marks omitted)); see also Payton v. Abbott
Labs, 386 Mass. 540, 573, 437 N.E.2d 171 (1982) (citing comment k as consistent with public
policy); cf. Lareau v. Page, 840 F. Supp. 920, 933 (D. Mass 1993) (“[T]here are some products,
especially drugs, which are quite incapable of being made safe for their intended and ordinary use,
and yet the marketing and use of which is justified because they may avert an otherwise inevitable

4

Case 4:18-cv-40050-TSH Document 39 Filed 12/14/18 Page 5 of 5

death. Such a drug, properly prepared, and accompanied by proper directions and warnings, is not
defective, nor is it unreasonably dangerous.”).

Consequently, Plaintiff may not claim that

Defendant Wyeth’s product was defective in its design.
Finally, under the learned intermediary doctrine, “a prescription drug manufacturer’s duty
to warn of dangers associated with its product runs only to the physician; it is the physician’s duty
to warn the ultimate consumer.” Cottam v. CVS Pharmacy, 436 Mass. 316, 321, 764 N.E.2d 814
(2002) (citation omitted). Plaintiff makes no allegations that Defendant Wyeth failed to provide
adequate warnings to Dr. Shukair regarding the potential side effects of Effexor. In fact, Plaintiff’s
allegations seem to suggest that the manufacturer did provide the necessary warnings. Plaintiff
notes that the medication was accompanied by a “BLACK BOX WARNING” advising Dr.
Shukair of the side effects Plaintiff allegedly experienced. (Docket No. 1 ¶ 53). According to
Plaintiff, however, “Dr. shukair [sic] ignored” this “obvious risk.” Id. Further, Plaintiff notes that
he was prescribed the medication “without being warned or even explained what type of
medication it was other then [sic] it was an aint-depressant [sic].” Id. ¶ 22. Accordingly, Plaintiff’s
claim seems to be that Dr. Shukair failed to provide him with an adequate warning of potential
side effects. According to Massachusetts law, however, these allegations cannot support a failure
to warn claim against Defendant Wyeth.
Conclusion
For the reasons stated above, Defendant Wyeth’s motion to dismiss (Docket No. 29) is
granted.
SO ORDERED.
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

5