Willis v. Schwarz-Pharma, Inc.

62 F. Supp. 3d 560, 2014 U.S. Dist. LEXIS 100445, 2014 WL 3703418
CourtDistrict Court, E.D. Texas
DecidedJuly 23, 2014
DocketNO. 9:11-CV-94
StatusPublished
Cited by2 cases

This text of 62 F. Supp. 3d 560 (Willis v. Schwarz-Pharma, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willis v. Schwarz-Pharma, Inc., 62 F. Supp. 3d 560, 2014 U.S. Dist. LEXIS 100445, 2014 WL 3703418 (E.D. Tex. 2014).

Opinion

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

RON CLARK, United States District Judge

The Report and Recommendation of the Magistrate Judge, which contains his findings, conclusions, and recommendation for the disposition of this matter has been presented for consideration. The Report and Recommendation recommends that Shwarz-Pharmá, Inc.’s Motion for Summary Judgment (Doc. No. 90) be granted. No objections have been filed to the magistrate judge’s report and recommendation, and the time for doing so has passed.

The court finds that the findings and conclusions of the Magistrate Judge are correct and therefore, adopts the findings and conclusions as those of the court. Accordingly, it is

ORDERED that the Defendant Schwarz-Pharma Inc.’s Motion for Summary Judgment (Doc. No. 90) is GRANTED, and the claims against Defendant Schwarz-Pharma Inc. are DISMISSED with prejudice.

So ORDERED and SIGNED this 23 day of July, 2014.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ZACK HAWTHORN, United States Magistrate Judge

This case is assigned to the Hon. Ron Clark, United States District Judge, and was referred for pretrial matters to United States 'Magistrate Judge Zack Hawthorn on August 15, 2013, pursuant to General Order 13-13. This report and recommendation addresses Defendant Schwarz Phar-ma, Inc. N/K/A UCB, Inc.’s (“Schwarz”) “Motion for Summary Judgment.” (Doc. No. 90.) Because there is insufficient summary judgment evidence showing Willis ingested Reglan manufactured by Schwarz, and section 82.007 of the Texas Civil Practice and Remedies Code otherwise bars his claims, Schwarz’s motion should be granted.

[562]*562I. Background Facts and Procedural History

Plaintiff Jerome Willis (“Willis”), proceeding pro se, brought a product liability suit in the 159th Judicial District Court of Angelina County, Texas on April 4, 2011, against co-defendant Alaven Pharmaceutical LLC for injuries he claims to have received as a result of using the drug, Reglan. (Doc. No. 4.) On May 25, 2011, Alaven removed the case to this court based upon diversity of citizenship and the amount in controversy exceeds $75,000.00. (Doc. No. 2.)

Willis asserts that doctors at Memorial Medical Center and Woodland Heights Medical Center prescribed Reglan to treat his gastroesophageal reflux disease (GERD) from June 2007 until March 2008, and Willis claims that he suffered severe chronic nerve damage, loss of muscle tissue, and loss of strength and range of motion in his right limb as a result of his long term use of the drug. (Doc. No. 4.) He states that the Defendant manufactured this drug and failed to warn him about its side effects, and that it was only approved for short term use of up to twelve weeks. (Id.) Willis also alleges a fraud claim based upon representations as to the number of adverse events relating to Reglan. In addition, he asserts various negligence claims and an implied warranty of fitness claim. (Id.)

On August 15, 2012, Willis filed an amended complaint adding Schwarz Phar-ma as a defendant with no additional factual allegations. (Doc. No. 46.)

On February 4, 2013, Judge Ron Clark entered an Order granting Alaven Pharmaceutical LLC’s Motion for Summary Judgment. (Doc. No. 74.) Alaven alleged in its Motion for Summary Judgment that there was no evidence that Willis took brand-name Reglan manufactured or sold by Alaven. (Doc. No. 54.) The court agreed, and granted summary judgment because Willis had no evidence that Alaven manufactured, distributed, or supplied the product that allegedly caused his injuries. (Doc. No. 74.)

On August 23, 2013, Schwarz filed the “Motion for Summary Judgment” at issue (Doc. No. 90) asserting the same arguments. Schwarz asserts that it manufac-. tured only brand-name Reglan tablets, and that it did not ever manufacture or sell the generic form of Reglan called Metoclo-pramide, in tablet or injectable form. (Id. at 11-12.) Schwarz argues that Willis’s lawsuit should be dismissed because there is no evidence that Willis used a product manufactured by Schwarz, and a manufacturer cannot be held liable for injuries caused by another manufacturer’s product. In addition, Schwarz contends that Willis’s claims are barred by section 82.007(a) of the Texas Civil Practice and Remedies Code, which bars failure to warn claims against a manufacturer who distributed an FDA approved label with its product.

Willis filed a response stating that he took Metoclopramide in tablet and injecta-ble form. (Doc. No. 96, p. 3.) He asserts that Schwarz is still liable for his injuries, because Schwarz was still receiving a percentage of the profits from the sale of Metoclopramide. See Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361 (Tex.1987). He also argues that Schwarz cannot invoke the presumption of non-liability under section 82.007(a) of the Texas Civil Practice and Remedies Code because it intentionally misled the FDA by withholding research data.

Schwarz filed a reply addressing Willis’s arguments, and also three supplements of authority. (Doc. Nos. 97, 101, 102, 103.) Schwarz states that it sold the rights associated with brand-name Reglan tablets in 2008 and never held any rights associated [563]*563with its competitors’ generic Metroclo-pramide. Schwarz also re-asserts its argument that Willis has failed to produce any evidence that he took a product manufactured or sold by Schwarz. Moreover, Schwarz argues that Willis’s fraud claim, as an exception to section 82.007, is preempted by federal law because he has not shown evidence that the FDA itself has found fraud.

In Schwarz’s First Notice of Supplemental Authority, it directs the court to Lash-ley v. Pfizer, Inc., 750 F.3d 470, 473 (5th Cir.2014), in which the Fifth Circuit recently affirmed the district court’s dismissal of the claims against Schwarz because the evidence showed that the plaintiff only used generic Metoclopramide manufactured by Schwarz’s competitors — not Schwarz itself. (Doc. No. 101.) In Schwarz’s second Notice of Supplemental Authority in Support of its Motion for Summary Judgment, it advises the court that the Fifth Circuit published Lashley, thereby giving it fall precedential authority. (Doc. No. 102.) Finally, in its third Notice of Supplemental Authority in Support of its Motion for Summary Judgment, Schwarz informs the court that the Fifth Circuit recently decided another case— Eckhardt v. Qualitest Pharmaceuticals— following Lashley as precedent and making the same holding.

Willis filed a sur-reply and “concedes that Schwarz was not the manufacturer of the generic Metoclopramide injectable form.” (Doc. No. 100, p. 2.) He also requests additional discovery to prove that Schwarz manufactured and sold Reglan tablets to the hospitals where he was treated.1 (Id.) Moreover, he states that there is a genuine issue of material fact as to whether Schwarz provided adequate warnings to the learned intermediaries on its label for Reglan tablets. (Id.)

II. Summary Judgment Standard

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62 F. Supp. 3d 560, 2014 U.S. Dist. LEXIS 100445, 2014 WL 3703418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willis-v-schwarz-pharma-inc-txed-2014.