Opinion
No. SA-03-CA-0182.
November 2, 2004
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Before the Court are Defendants' Motion for Summary Judgment (Docket No. 25) and Defendants' Notice that Defendants' Motion for Summary Judgment is Unopposed Pursuant to Local Court Rule CV-7(d) and Federal Rule of Civil Procedure Rule 56(e). Having considered the written briefs and the evidence submitted, the Court finds that Plaintiffs have not responded to Defendants' Motion for Summary Judgment and have been unable to adduce evidence of a genuine issue of material fact as to one or more elements of their causes of action. Accordingly, Defendants' Motion for Summary Judgment is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs bring four negligence claims against Defendants for pain and suffering that Pamela Carter experienced allegedly as a result of injections of Lupron her doctor administered to her. Three of claims involve allegations that Defendants' failed to warn Plaintiffs of the adverse effects of Lupron, and the fourth claim asserts a claim for unreasonably dangerous defective design.
Defendants filed their Motion for Summary Judgment on August 30, 2004, and under Rule C V-7(d) of the Local Court Rules, Plaintiffs' response was due eleven days later on September 10, 2004. Defendants filed a notice on October 7, 2004 stating that Plaintiffs had not responded to their Motion for Summary Judgment, and the Court notes that as of the date of this Order, Plaintiffs still have not filed a response. Defendants also allege that Plaintiffs have not sought depositions or conducted any discovery in this matter.
Defendants request for summary judgment rests on procedural and substantive arguments. On procedural grounds, Defendants allege that summary judgment is appropriate according to Local Court Rule CV-7(d) and Fed.R.Civ.P. 56(e) because Plaintiffs have not filed a timely response to their Motion for Summary Judgment. Local Court Rule CV-7 states, "If any party opposes a motion, the respondent shall file a response and supporting documents. . . . If there is no response filed within the time period prescribed . . ., the Court may grant the motion as unopposed." Likewise, Fed.R.Civ.P. 56(e) provides, "when a motion for summary judgment is made and supported as provided in this rule, an adverse party . . . must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."
On substantive grounds, Defendants claim that summary judgment is appropriate because the doctrine of the "learned intermediary" defeats Plaintiffs' claims concerning a failure to warn and because TAP Pharmaceuticals' warnings preclude liability for Plaintiffs' claim that Lupron is an unreasonably dangerous product.
STANDARD OF REVIEW
Summary judgment is appropriate if, after adequate time for discovery, no genuine issue as to any material facts exists, and the moving party is entitled to judgment as a matter of law. Where the issue is one for which the nonmoving party bears the burden of proof at trial, it is sufficient for the moving party to identify those portions of the record which reveal the absence of a genuine issue of material fact as to one or more essential elements of the nonmoving party's claim. The nonmoving party must then "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." To prevail on summary judgment, the moving party need only demonstrate that "there is an absence of evidence to support the nonmoving party's case." Upon viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the court, in order to grant summary judgment, must be satisfied that no rational trier of fact could find for the nonmoving party as to each element of his case.
Fed.R.Civ.P. 56(c); Celotex Corp v. Catrett, 477 U.S. 317, 322-24 (1986).
Celotex, 477 U.S. at 323-24.
Id. at 324.
Id. at 325.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
DISCUSSION
The Court finds persuasive both Defendants' procedural and substantive arguments. Plaintiffs failed to meet the procedural requirements because they did not respond to Defendants' Motion for Summary Judgment by the September 10th deadline. Moreover, even after receiving warning of this defect by Defendants' Notice filed on October 7th, Plaintiffs still have neglected to respond as of the date of this Order. Based on the clear statutory instructions in the Local Court Rules and the Federal Rules of Civil Procedure, the Court finds that Plaintiffs have not set forth specific facts showing there is a genuine issue for trial.In addition, Defendants' Motion is supported by strong substantive arguments. For cases concerning a drug manufacturer's duty to warn consumers of the dangers of a prescription drug that is administered during the course of a physician/patient relationship, the Fifth Circuit has held that Texas law applies the "learned intermediary" doctrine and limits the manufacturer's duty to warn to "an obligation to advise the prescribing physician of any potential dangers that may result from the drug's use." The Fifth Circuit has held that the manufacturer must only warn the prescribing physician because he/she acts as a learned intermediary between the manufacturer and patient. Moreover, "the fact that the manufacturer has adequately warned the prescribing physician will protect it from liability to the patient for failure to warn." In this matter, the learned intermediary doctrine applies because Lupron is a prescription drug and Dr. Van Wingerden prescribed the drug in the course of a doctor-patient relationship.
Reyes v. Wythe Laboratories, 498 F.2d 1264, 1276 (5th Cir. 1974).
See id.
Hurley v. Lederle Laboratories Div. of American Cyanamid Co., 863 F.2d 1173, 1178 (5th Cir. 1988).
Furthermore, Plaintiffs have not made an adequate claim against Defendants under the learned intermediary doctrine because they have not designated specific facts showing that there are genuine issues for trial concerning whether the warning accompanying Lupron was inadequate or a producing cause of Plaintiffs' injuries. According to the uncontested declaration by Dr. Michael Hensley, the warnings provided in the Lupron package and in the Physician's Desk Reference address every adverse reaction of which Ms. Carter complains. In light of this evidence, the warnings issued by Defendants are adequate as a matter of law. The Court concludes that no rational trier of fact could find for Plaintiffs that inadequate warnings were a producing cause of Ms. Carter's injuries, and there is no evidence that "but for" inadequate information, Ms. Carter's injuries would not have occurred.
Wyeth-Ayerst Laboratories Co. v. Medrano, 28 S.W.3d 87, 94 (Tex.App.-Texarkana, 2000, no pet.) (holding that Plaintiff has the burden to "show both that the warning was defective and that it was the producing cause of the plaintiff's injury."); Rolen v. Burroughs Wellcome Co., 856 S.W.2d 607, 609 (Tex.App. — Waco 1993, writ denied); Technical Chem. Co. v. Jacobs, 480 S.W.2d 602, 605-06 (Tex. 1972); Stewart v. Janssen Pharm., Inc., 780 S.W.2d 910, 911 (Tex.App.-El Paso 1989, writ denied).
Rolen, 856 S.W.2d at 609 (finding that a warning is adequate as a matter of law if it specifically mentions the circumstances complained of).
See Cooper v. Bowser, 610 S.W.2d 825, 832 (Tex.App. — Tyler 1980, no writ).
Finally, Plaintiffs' claim that Defendants knowingly or negligently placed an unsafe product in the stream of commerce does not withstand Defendants' Motion for Summary Judgment. Under Texas law, all FDA-approved prescription drugs are unavoidably unsafe as a matter of law. In a case concerning a manufacturer's liability producing the Polio vaccine, the Fifth Circuit outlined a two-step analysis in its discussion of whether a manufacturer would be liable for placing an unavoidably unsafe drug in the stream of commerce. The Fifth Circuit advised that a court must determine first "whether the product is so unsafe that marketing it at all is `unreasonably dangerous per se', and, if not, whether the product has been introduced into the stream of commerce without sufficient safeguards and is thereby `unreasonably dangerous as marketed.'" Plaintiffs have offered no genuine issues of material facts that suggest placing Lupron on the market is unreasonably dangerous per se. In addition, a drug manufacturer's duty to warn is limited to an obligation to advise the prescribing physician of any potential dangers, and there is no evidence that Defendants have not fulfilled this duty to safeguard through its warnings to Dr. Van Wingerden.
Hackett v. G.D. Searle Co., 246 F.Supp.2d 591, 595 (W.D.Tex., 2002).
Reyes, 498 F.2d at 1272-3.
Id. at 1273.
See id. at 1274-6.
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiffs have failed to raise a genuine issue of material fact as to one or more essential elements of each of his federal causes of action.ACCORDINGLY, IT IS ORDERED that Defendants' Motion for Summary Judgment (Docket No. 25) is GRANTED.
It is so ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order granting Defendants' Motion for Summary Judgment and dismissing Plaintiffs' claims. The Court now enters its Final Judgment pursuant to Federal Rule of Civil Procedure 58.Accordingly, it is hereby ORDERED that Defendants' Motion for Summary Judgment be GRANTED.
It is ORDERED that each party bear its own costs.
It is ORDERED that all pending motions are DENIED AS MOOT.