[Drug and Device Law] One Mississippi, Two Mississippi: Dismissal of Claims against Brand Name Reglan and Generic Metoclopramide Manufacturers
We normally prefer to trumpet birthday wishes rather than deathday anniversaries. But the guillotining of King Louis XVI was such a huge moment in Western history, not just French history, that we cannot let the event of January 21, 1793, go unremarked. It is only a series of tiny conceptual steps to go from the French Revolution to nationalism, to total war, to the Napoleonic Code, to the metric system, and then to a weird overestimation of the films of Jerry Lewis.
Today is also National Hug Day in the United States. Surely, Louis and Marie Antoinette could have used a hug as they rode toward the Place de la Revolution, which is now called the Place de la Concorde. (In the Star Trek universe, the President of the United Federation of Planets is officed in the Place de la Concorde. What other legal blog supplies that sort of crucial context?) If we were discussing an especially lousy case today, we might say that we could use a hug, too. But that turns out not to be necessary, because we are today reporting on a perfectly sensible case that rejected the Conte infamy. It comes from the land of magnolias and Faulkner, of Robert Johnson and the International Ballet Competition, of Blind Melon and Viking Ranges. It comes from Mississippi.
The case is Truddle v.Wyeth,LLC, 2015 U.S. Dist. Lexis 4563 (N.D. Miss. Jan. 12, 2015). Being long-time blues lovers, we cannot resist mentioning that the Truddle case resided in the Delta Division of N.D. Mississippi. None of the courts in our burg has a title nearly so colorful. (We could see Philly courts conducting proceedings in a Schuykill Division, Hoagie Division, Mummers Division, and, in honor of the Sixers basketball team, Tankers Division.) Truddle was a pro se case and, as with so many of the cases we discuss, it arose from very sad circumstances. A young man suffering from gastritis and related conditions was prescribed Reglan/metoclopramide. He subsequently committed suicide. That is not the typical injury alleged in Reglan/metaclopramide cases. His relatives sued both the manufacturers of brand name Reglan as well as the manufacturers of generic metoclopramide. Earlier in the proceedings, the court had dismissed the claims against the generic manufacturers based on Mensing preemption. Then the brand name manufacturers moved for summary judgment on the ground that there was no evidence that the decedent had ever taken brand name Reglan. Thus we have the ‘one-two punch’ we have written about several times before, including here and here and here, among others. The Truddle court followed the analysis of almost every other court in deciding that a brand name manufacturer cannot be held liable for injuries suffered by someone who never ingested the brand name product. Put another way, the Truddle court rejected the Conte craziness that came out of California and that has been rejected by every right-thinking court (though, sadly, incoherently, maddeningly, it has been embraced by Mississippi’s neighbor to the immediate east).
The Truddle court afforded “greater latitude to pro se plaintiffs,” but the factual record was bereft of evidence that the decedent had ever taken Reglan. Truddle, 2015 U.S. Dist. Lexis 4563 at *6. The plaintiffs asserted such brand name usage in a response to a Request for Admission, but the medical records were to the contrary. That fact, or lack of fact, ends the failure to warn claim against the brand name companies, because holdings from the Fifth Circuit and Mississippi consistently make clear that in a product liability claim the plaintiff must “prove it was the defendant’s product that caused the injury.” Id. at *10. Mississippi product liability laws “shield the companies from liability for products they did not create.” Id. Mississippi gets it right. (More vital Star Trek trivia: the chief medical officer on the USS Enterprise, Bones McCoy, attended medical school in Mississippi.) Though it did not really need to, the Truddle court also cited similar holdings from Florida, Arkansas, Tennessee, and Kentucky. That makes for an interesting map. It is as if every representative of the glorious Southeastern Conference is on the side of reason and justice, with the solitary exception of Alabama. If we didn’t have so many friends who played or root for the Crimson Tide, this Conte issue would almost make us glad that Nick Saban’s team lost on New Year’s day. But not so; we will continue to admire Alabama football, even as we pray for the courts or legislators in that great state to restore common sense to product liability law. (We acknowledge that courts within Alabama's borders are perfectly capable of producing sound product liability decisions. Take a look at yesterday's post, for example.)
Back to Truddle. The only issue left was the plaintiffs’ claim for fraud. Here is what they alleged: the defendants “misrepresented to the FDA, [the decedent], and the health care industry the safety and effectiveness of Reglan/metoclopramide and/or fraudulently, intentionally[,] and/or negligently concealed material safety information, including adverse information regarding the safety and effectiveness of Reglan/metoclopramide.” Id. at *11. Those are naked allegations devoid of support or specificity. They definitely do not supply the specific who, what, where, when, and how that are required by Fed. R. Civ. P. 9(b). Accordingly, the court, aside from an expression of sympathy, had no hesitation granting summary judgment and dismissing the case. The court did not mention that the allegation also seems to run afoul of Buckman, but we will.
The Truddle decision is hardly revolutionary. What it is is straightforward, logical, and reassuring. It is certainly no cause for anyone who cares about the law to sing the blues.
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Posted By Steve McConnell to Drug and Device Law at 1/21/2015 07:30:00 AM --
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