Filed: Jun. 22, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D In the June 22, 2004 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ No. 03-31030 Summary Calendar _ BARBARA HALL AND DENNIS HALL, Plaintiffs-Intervenor Defendants- Appellants/Appellees, VERSUS ELKINS SINN, INC.; WYETH, Defendants-Intervenor Defendants- Appellees, VERSUS LOUISIANA PATIENT COMPENSATION FUND OVERSIGHT BOARD, Intervenor Plaintiff-Appellant. _ Appeals from the United States District Court for
Summary: United States Court of Appeals Fifth Circuit F I L E D In the June 22, 2004 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ No. 03-31030 Summary Calendar _ BARBARA HALL AND DENNIS HALL, Plaintiffs-Intervenor Defendants- Appellants/Appellees, VERSUS ELKINS SINN, INC.; WYETH, Defendants-Intervenor Defendants- Appellees, VERSUS LOUISIANA PATIENT COMPENSATION FUND OVERSIGHT BOARD, Intervenor Plaintiff-Appellant. _ Appeals from the United States District Court for ..
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United States Court of Appeals
Fifth Circuit
F I L E D
In the June 22, 2004
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_____________________
No. 03-31030
Summary Calendar
_____________________
BARBARA HALL AND DENNIS HALL,
Plaintiffs-Intervenor Defendants-
Appellants/Appellees,
VERSUS
ELKINS SINN, INC.; WYETH,
Defendants-Intervenor Defendants-
Appellees,
VERSUS
LOUISIANA PATIENT COMPENSATION FUND OVERSIGHT BOARD,
Intervenor Plaintiff-Appellant.
____________________
Appeals from the United States District Court
for the Western District of Louisiana
m 02-CV-684
____________________
Before SMITH, DEMOSS, and STEWART, Since then, she has suffered the numerous side
Circuit Judges. effects associated with permanent bilateral ves-
tibular damage, or ototoxicity, as a result of
PER CURIAM:* using the drug.
Plaintiffs, Barbara and Dennis Hall, and in- II.
tervenor, Louisiana Patient Compensation Plaintiffs filed a medical malpractice claim
Fund Oversight Board (“PCF”), appeal a sum- against Seale under the Louisiana Medical
mary judgment for defendants, Wyeth Com- Malpractice Act. A medical review panel
pany, d/b/a Wyeth-Ayerst Laboratories, and found that Seale had deviated from the appli-
Elkins Sinn, Inc. (“Wyeth”). Plaintiffs’ origi- cable standard of care, and the claim against
nal claim was pursuant to the Louisiana Prod- him was settled for $100,000; the settlement
ucts Liability Act (“LPLA)1 and asserted that triggered access to the PCF. Plaintiffs also
Gentamicin, a drug manufactured by Wyeth, sued the pharmacist; the parties also settled,
was unreasonably dangerous because an ade- and the case went to trial against the PCF.
quate warning of its potentially harmful effects The jury returned a verdict finding Seale 85%
was not provided. For fundamentally the same liable, the pharmacist 10%, and Hall 5%. The
reasons expressed in the district court’s Mem- state appellate courts affirmed.2
orandum Ruling and Order, we affirm.
After bringing the above-described case in
I. state court, plaintiffs sued the manufacturers of
The facts are not in dispute. Barbara Hall, Gentamicin in federal court, using diversity
suffering from recurrent boils on her right arm, jurisdiction. Plaintiffs charged that defendants
sought treatment from Dr. Kent Seale, who failed to provide adequate warnings for their
prescribed injections of Gentamicin, a pow- drug and that the failure to warn was a legal
erful drug that can have serious potential side and proximate cause of Hall’s injuries. Defen-
effects, especially when taken in large dosages dants sought summary judgment, asking to
or for prolonged periods of time. Seale wrote dismiss the claim for five reasons: (1) The
Hall a prescript ion for 21 days, well beyond warnings accompanying Gentamicin were clear
the recommended 7-10 day course of treat- and unambiguous as a matter of law; (2) Seale
ment. The pharmacist compounded Hall’s risk did not read the physician labeling supplied
by providing her with a 33-day supply. with the product, but acknowledged he was
aware of the risks associated with the drug; (3)
After taking the drug for 28 days, Hall be- the labeling supplied with Gentamicin was
gan to experience dizziness and was told by approved by the Food & Drug Administration;
Seale to discontinue her use of Gentamicin. (4) plaintiffs offer no expert testimony refuting
the adequacy of the warning; and (5) plaintiffs’
claims against Wyeth are precluded by the
* state court judgment. The district court
Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
2
circumstances set fort in 5TH CIR. R. 47.5.4. See Hall v. Brookshire Bros., Ltd., 831 So. 2d
1010 (La. App. 3d Cir. 2002); Hall v. Brookshire
1
LA. REV. STAT. art. 9:2800.57. Bros., Ltd., 848 So. 2d 559 (La. 2003).
2
granted summary judgment based on defen- Plaintiffs argue that the district court erred
dants’ final assertion that the claim was barred in applying art. 425 and that Hall’s claim
under issue preclusion, a concept that had been against Wyeth is of a fundamentally different
adopted in 1991 by the Louisiana legislature.3 nature from the claims asserted in the earlier
The court also noted that, putting aside any litigation, because the new cause of action in-
question of issue preclusion, summary judg- volves different parties and derives from dif-
ment should be granted because of the applica- ferent circumstances. This argument is with-
bility of the “learned intermediary doctrine” out merit.
and the plaintiffs’ subsequent failure to estab-
lish causation. The fact that the causes of action involve
different defendants is irrelevant, because the
III. purpose of article 425 is to encourage plain-
A. tiffs to join all possible defendants in a single
A motion for summary judgment under litigation and to prevent relitigation of issues
Federal Rule of Civil Procedure 56 should be rather than claims. The purpose of issue pre-
granted only if there is no genuine issue of ma- clusion is to prevent relitigation of issues al-
terial fact and the moving party is entitled to ready dealt with by the courts, so as to maxi-
judgment as a matter of law. In determining mize judicial economy and minimize conflict-
whether there is a genuine issue of material ing judgments.
fact, evidence and inferences must be drawn in
the light most favorable to the non-moving The state jury apportioned 100% of the
party. Daniels v. City of Arlington, Tex., 246 fault of Hall’s injuries. To allow the claim
F.3d 500, 502 (5th Cir. 2001). We review a against Wyeth to proceed would require a re-
summary judgment de novo. Meditrust Fin. apportionment of fault and a relitigation of the
Serv. Corp. v. Sterling Chem., Inc., 168 F.3d same issues of causation already dealt with in
211, 213 (5th Cir. 1999). the first suit. This result would be fundamen-
tally at odds with the principles behind res
B. judicata.
The district court held that plaintiffs’ claim
against Wyeth was barred by the state litiga- Moreover, plaintiffs contend the cause of
tion. Pursuant to LA. CIV. CODE art. 425, the action against Wyeth derives from a set of cir-
court maintained that the claim was issue- cumstances different from those underlying
precluded, and plaintiffs’ failure to join Wyeth the causes of action against earlier defendants.
as a party in the first litigation effectively Although, however, three independent alleged
amounted to a waiver of any claim against the faults can be discerned from the facts, all of
manufacturers.4 these alleged faults arise from the same nu-
cleus of facts and unite to creat e a single, in-
divisible harm.
3
LA. CIV. CODE art. 425.
Hall’s use of Gentamicin resulted in her
4
The relevant section of art. 425 states that “a
party shall assert all causes of action arising out of
4
the transaction or occurrence that is the subject (...continued)
(continued...) matter of the litigation.”
3
developing ototoxicity. The question whether tiff’s doctor “unequivocally” testified that
this was the result of the doctor’s negligence “warning was adequate to inform him or her of
or the manufacturer’s inadequate warnings the risks involved” in addition to proving that
represents two separate causes of action rather the warning contains a “clear and unambigu-
than two separate transactions or occurrences. ous reference to the adverse reactions suffered
Plaintiffs’ interpretation that article 425 asks by the Plaintiff.” Id. at 267. Although plain-
the court to examine whether “the same trans- tiffs maintain that the warning is lacking, they
action or same cause of action is asserted in offer no expert testimony to back this claim
the second suit” is a blatant misreading of the up, nor do they attempt to refute defendants’
statute, which instead requires a plaintiff to expert testimony or evidence to the contrary.
assert “all causes of action arising out of the
transaction or occurrence that is the subject
matter of the litigation” (emphasis added). Plaintiffs also aver that because Seale’s af-
Just because one cause of action is governed fidavit does not unequivocally testify regarding
by the rules of medical malpractice and an- the adequacy of the warning, questions of fact
other by products’ liability is no reason to remain that make summary judgment im-
allow for a separation of the claims when they proper. Because, however, Seale failed to
involve the same facts and the same questions read the warnings provided, he could not
of fault and causation. truthfully testify as to whether the warnings
were adequate to prevent him from prescribing
The district court cites Westerman v. State the drug to Hall. Additionally, Seale acknowl-
Farm Mut. Auto. Ins. Co., 834 So. 2d 445 edged his awareness of the risks anyway,
(La. App. 1st Cir. 2002), to illustrate this further making Stahl an inappropriate guide in
point. Westerman holds that plaintiff’s first this case.
action based in tort barred her from bringing a
second action based in contract, because the Contrary to the plaintiffs’ argument, the
two causes of action arose from the same “learned intermediary doctrine” applies in this
occurrence (an automobile accident). Requir- case, because it involves a prescription drug.
ing Hall to have joined Wyeth and the earlier Under the doctrine, a manufacturer’s duty to
defendants in the same suit or lose her claim warn the end-user is discharged to the physi-
against Wyeth is consistent with Westerman cian because of the expertise necessary to un-
and the proper reading of article 425. derstand the warning labels adequately. Eas-
terling v. Cardiac Pacemakers, Inc., 1998 WL
C. 50021, at *3 (E.D. La. Feb. 6, 1998) (denying
Although it is not necessary to our decision, motion for reconsideration); Reyes v. Wyeth
we note that the district court was correct in Labs., 498 F.2d 1264, 1276 (5th Cir. 1974).
its analysis of the learned intermediary doc- To prevail on a failure to warn case under the
trine. On that issue, plaintiffs argue that Stahl LPLA, a plaintiff must prove that the manufac-
v. Novartis Pharms. Corp.,
283 F.3d 254 (5th turer failed to warning the treating physician of
Cir. 2002), should be the guiding authority. the dangers associated with the drug and that
this failure was both a cause in fact and a
Plaintiffs reason that for summary judgment proximate cause of plaintiff’s injury. Willett v.
to be proper, defendants must prove that plain- Baxter, 929 F.2d 1094 (5th Cir. 1991).
4
Under this two-prong test, failure to warn
is just one part necessary to find the manufac-
turer at fault. Plaintiffs never address the sec-
ond prong of causation, because they cannot
offer any evidence to support a jury finding in
their favor. Seale’s affidavit acknowledges
that he never read the warning and that he was
aware of the risks of the drug independently of
Wyeth’s labels; therefore, Wyeth’s warning
(adequate or inadequate) played no role in the
events leading to Hall’s injury. Even if we as-
sume, arguendo, that the warning was inade-
quate, plaintiffs would be unable to show that
a proper warning would have changed Seale’s
decision to prescribe Gentamicin. Because
plaintiffs are unable to provide any evidence to
support proximate and legal causation, their
claim fails as a matter of law.
AFFIRMED.
5
