United States District Court, D. Colorado
For Jennifer Heineman, Eric Allen Heineman, Plaintiffs: James DeNice Sill, Jr. LEAD ATTORNEY, Sill Law Group, Edmond, OK.
For American Home Products Corporation, Defendant: Eric Keith Blumenfeld, LEAD ATTORNEY, Hughes Hubbard & Reed, LLP-Jersey City, Jersey City, NJ; Michael David Tiger, LEAD ATTORNEY, Theodore V.H. Mayer, Hughes Hubbard & Reed, LLP-New York, New York, NY.
For Wyeth-Ayerst Pharmaceuticals, Inc., Wyeth-Ayerst International, Inc., Wyeth-Ayerst Laboratories Division of American Home Products Corporation, Defendants: Andrew Howell Myers, Wheeler Trigg O'Donnell, LLP, Denver, CO; Theodore V.H. Mayer, Hughes Hubbard & Reed, LLP-New York, New York, NY.
OPINION AND ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
Marcia S. Krieger, Chief United States District Judge.
THIS MATTER is before the Court on the Defendants' (collectively, " Wyeth" ) Motion For Summary Judgment Re: Plaintiff's Claim for Compensatory Damages (# 29), the Plaintiffs' response (# 40), and Wyeth's reply (# 42); and Wyeth's Motion for Summary Judgment Re: Plaintiff's Claims for Punitive Damages (# 30), the Plaintiffs' response (# 41), and Wyeth's reply (# 43).
The Court briefly summarizes the pertinent facts herein, and elaborates as necessary in its analysis. In 1996, Plaintiff Jennifer Heineman, then 24 years old, prevailed upon her physician parents, Dr. Joan Scott (" Dr. Joan" ) and Dr. John Scott (" Dr. John" ), to issue her a prescription for the drug Pondimin, a brand-name variant of the weight-loss drug fenfluramine manufactured by Wyeth. Dr. John apparently signed one or more blank prescription forms, and Dr. Joan apparently filled in the relevant information, allowing Ms. Heineman to obtain the drug. Ms. Heineman took Pondimin from approximately March 1996 to May 1997.
In November 2010, Ms. Heineman was diagnosed was pulmonary arterial hypertension (" PAH," sometimes also known as " primary pulmonary hypertension" ), a progressive and potentially fatal lung disease. Mr. Heineman attributes her contracting of PAH to having taken Pondimin.
In or about April 2012, Ms. Heineman commenced this action in the Pennsylvania Court of Common Pleas (site of ongoing mass-plaintiff litigation against manufacturers and distributors of fenfluramine products, known as the In re: Phen-Fen litigation). Ms. Heineman's suit incorporated by reference certain claims found in a " Master Complaint" in use in the In re: Phen-Fen litigation, specifically asserting the following claims: (i) negligence, in that Wyeth " failed to use due care in the designing, testing, and manufacturing of . . . fenfluramine" and " failed to accompany their product with proper warnings regarding
all possible adverse side effects," among others; (ii) strict products liability, in that the fenfluramine products were " unreasonably dangerous" ; (iii) strict liability failure to warn; (iv) breach of implied warranty; (v) breach of express warranty, in that Wyeth made certain " written and verbal assurances of safety and efficacy" and " false and misleading written information . . . published in the Physicians Desk Reference on an annual basis" ; (vi) fraud, in that Wyeth's " advertising program, by affirmative misrepresentations and omissions, falsely and deceptively sought to create the image and impression that the use of fenfluramine . . . was safe for human use" ; (vii) loss of consortium, asserted by Eric Heineman, Jennifer's husband; and (viii) a " claim" for compensatory and punitive damages.
Citing to the federal subject-matter jurisdiction premised on diversity of citizenship, 28 U.S.C. § 1332, Wyeth removed the action to the United States District Court for the Eastern District of Pennsylvania, where a multi-district litigation case entitled In re Diet Drugs, 990 F.Supp. 834 (J.P.M.L. 1997), was pending. Although Ms. Heineman's case was joined into that MDL proceeding, in or about May 2013, Wyeth sought a transfer of venue of this case to the District of Colorado, noting that Ms. Heineman and her parents were all citizens of Colorado throughout the time periods at issue here, and that Ms. Heineman's injuries were sustained in Colorado. In June 2013, the court granted that motion, transferring the case to this Court.
Wyeth now seeks summary judgment on all of the Plaintiffs' claims through motions curiously-titled " Motion for Summary Judgment re: Plantiffs' Claim for Compensatory Damages" (# 29) and " Motion for Summary Judgment re: Plaintiffs' Claim for Punitive Damages" (# 30). In short, Wyeth argues: (i) all of the Plaintiffs' claims are simply variants of their failure to warn claim; (ii) the failure to warn claim fails because Dr. John testified that he did not review any warnings about Pondimin before prescribing it, and thus, a more comprehensive warning would not have prevented Ms. Heineman's injury; (iii) the Plaintiffs cannot rely on the fact that Dr. Joan may have considered the content of Pondimin's warnings, insofar as only Dr. John, as a matter of law, the duty to warn runs only to the prescribing physician.
A. Standard of review