Stoddard v. PLIVA, Inc. et al

Filing 199

ORDER denying 187 Motion for Reconsideration and denying 189 Motion for Sanctions. This case remains scheduled for the court's October 14, 2014, term. Signed by Senior Judge Malcolm J. Howard on 9/8/2014. (Lee, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO.: 4:08-CV-173-H

GARY JOSEPH STODDARD and his
wife PATRICIA ANN STODDARD,
Plaintiffs,

ORDER

v.

PLIVA USA, INC.,
Defendant.

This matter is before the court on defendant's motion for
reconsideration
[DE

#18 9] .

[DE #187],

The

and plaintiffs'

appropriate

responses

motion for sanctions

have

been

filed.

These

matters are now ripe for review.
BACKGROUND

This is a product liability case in which plaintiffs assert
that

plaintiff

Gary

Stoddard

neurological movement disorder,
drug metoclopramide,

the

case

from

was

removed

October 6, 2008.

developed

tardive

dyskinesia,

a

from his use of the prescription

generic equivalent
Pitt

County

By order on June 2 4,

of Reglan®.

Superior

2 0 0 9,

Court

This
on

the court decided

two motions to dismiss and a motion for summary judgment, which
resulted

in

the

dismissal

of

three

claims

and

two

defendants

from

this

suit.

On

July

2,

2010,

the

dispositive

motions

deadline, defendant filed a motion to dismiss or for judgment on
the pleadings and a motion for summary judgment,
filed

motion

a

January 11, 2011,
further

ruling,

Supreme

a

Court

submitted new briefs
and

2013,

defendant's

[DE #131]

provided

On

decision.

to address

notices

of

the

subsequent

the court granted in part and denied
and

motions,

(2011) . 2

scheduling

denied

plaintiffs'

motion

This court's ruling was based, in large part, on the

Supreme Court's decision in PLIVA,
2567

judgment.

1

On January 30,
part

summary

await

to

the parties

Court's

authority.

in

partial

the court granted an unopposed motion to stay

proceedings

Subsequently,
Supreme

for

and plaintiff

order

The

court

followed,

Inc.

lifted
with

the
a

v. Mensing,

Ct.

an

amended

dispositive

motions

stay,

new

and

131 S.

deadline.
Defendant
January 30, 2013,
was

reconsideration

moved

for

order on

February 14,

denied by order on April 5,

1

2013

2013,
[DE

of

the

and that motion

#149].

As

many of

The stay was briefly lifted on October 17, 2011, and then discovery was
stayed again on November 18, 2011.
2
In Mensing, the Supreme Court held that state-law tort claims based on a
generic drug manufacturer's alleged failure to warn of a drug's risks via
labeling are impliedly preempted by federal law.
Id. at 2577-78.
The court
reasoned that it is impossible for a generic drug manufacturer to comply both
with federal law requiring that a generic drug label be the same as the
brand-name drug label and state law imposing on manufacturers a duty to warn
of its product's dangers.
Id.

2

plaintiffs'

claims have been dismissed in this case,

clarified what was left of the complaint.

that order

The remaining counts,

as stated in the complaint, are Count 6 for negligence, Count 14
for violation of the North Carolina Unfair Trade Practices Act,
and Count

15

for

loss

of

consortium.

The

bases

for

proving

these allegations have also been narrowed, according to Mensing,
to

exclude

any

argue

that

with

federal

labeling

defendant

conduct.

violated

regulations

Thus,

state

requiring

plaintiffs

law by

may

still

to

comply

failing

defendant

to

conduct

post-

marketing surveillance and/or report information to the Federal
Drug Administration

("FDA")

regarding

the

risks

of Reglan® or

(See Compl.

its generic equivalent, metoclopramide.

~~

73, 74.)

Defendant's motion for interlocutory appeal of the court's
January 30,
2013,

and April

5,

2013,

and defendant's most

was filed on May 1,

the

defendant

seeks

Fourth Circuit

the

was

recent motion

filed
for

on April

summary

By order on November 21,

2013.

23,

judgment
2013,

the

It is that November 21, 2013, order

court denied those motions.
that

orders

court

opinion

in

to

reconsider presently,

Drager v.

F.3d 470 (4th Cir. 2014).

3

PLIVA USA,

given

Inc.,

7 41

ANALYSIS
I. Motion for Reconsideration
Defendant's
defendants'

motion

claims

in

for

this

reconsideration

case,

preempted by impossibility.

like

those

In Drager,

urges

in

that

Drager,

are

that plaintiff brought

claims for Maryland tort liability which would require a change
in the generic drug's labeling or formulation,
exit the market.
survive

Drager, 741 F.3d at 477.

because

their

enforcement

or for PLIVA to

Those claims did not

would

make

compliance

with

federal law impossible.
In

this

case,

plaintiffs'

claims

have

been

narrowed

to

exclude any labeling conduct, and include only claims based upon
defendant's failure to comply with federal law.
cannot

be

preempted

impossibility.

by

law

federal

Therefore, they

under

theory

a

of

Thus, Drager is inapposite here, and defendant's

motion is denied.
II. Motion for Sanctions
Plaintiffs
provide

an

move

insurance

for

sanctions

for

representative

defendant's

and

using

failure

an

to

assistant

secretary to represent defendant during court-hosted settlement
conference on February 27,
not

successful.

However,

2014.
as

Settlement negotiations were

defendant

responds,

it

have an insurance carrier that will provide coverage

4

does
for

not
this

lawsuit

and

its

assistant

secretary

the

deems

court

fully

authorized

to

Upon review of the record as a

settle on behalf of plaintiff.
whole,

was

meritless

plaintiffs'

motion

for

motion

for

sanctions.
CONCLUSION
For

the

foregoing

reconsideration is DENIED
sanctions is DENIED

reasons,
[DE #187],

defendant's

and plaintiffs' motion for

This case remains scheduled for

[DE #189].

the court's October 14, 2014, term.

J1tl

This~ ~ay

of September 2014.

Senior United States District Judge

At Greenville, NC
#33

5