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Weeks v. Wyeth, Inc.

United States District Court, M.D. Alabama, Southern Division

August 3, 2015

DANNY WEEKS and VICKI WEEKS, Plaintiffs,
v.
WYETH, INC., et al., Defendants

For Danny Weeks, Vicki Weeks, Plaintiffs: Christopher Boyce Hood, LEAD ATTORNEY, Heninger Garrison Davis LLC, Birmingham, AL; Amanda Williamson, Heninger Garrison Davis, Birmingham, AL; William Louis McKinney Bross, IV, William Lewis Garrison, Jr., Heninger Garrison Davis, L.L.C., Birmingham, AL.

For Wyeth, Inc., Pfizer, Inc., Defendants: David Michael Melancon, Quentin F. Urquhart, Jr., LEAD ATTORNEYS, PRO HAC VICE, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA; Jeffrey Hutton Horowitz, LEAD ATTORNEY, PRO HAC VICE, Kaye Scholer LLP, New York, NY; Anna M. Manasco, Kevin C. Newsom, Lindsey C. Boney, IV, Bradley Arant Boult Cummings LLP, Birmingham, AL; George Robert Parker, Philip Henry Butler, Bradley Arant Boult Cummings LLP, Montgomery, AL.

For Schwarz Pharma, Inc., Defendant: James Ancone, LEAD ATTORNEY, PRO HAC VICE, Mayer Brown LLP, New York, NY; Andrew J. Calica, Henninger S. Bullock, PRO HAC VICE, Mayer Brown LLP, New York, NY; Edward Simmons Sledge, III, Frederick George Helmsing, Jr., McDowell, Knight, Roedder & Sledge, L.L.C., Mobile, AL.

For Actavis Elizabeth, LLC, Defendant: Steven Frank Casey, LEAD ATTORNEY, Jones Walker LLP, Birmingham, AL; Hugh M. Stanley, Richard Dean, PRO HAC VICE, Tucker Ellis LLP, Cleveland, OH.

For Teva Pharmaceuticals USA, Defendant: Henry James Koch, LEAD ATTORNEY, Armbrecht Jackson, LLP, Mobile, AL; Katherine Dacey Seib, LEAD ATTORNEY, Goodwin Procter LLP, New York, NY; Christopher Gadsden Hume, III, Armbrecht Jackson LLP, Mobile, AL; Jonathan I Price, PRO HAC VICE, Goodwin Procter LLP, New York, NY; Richard A. Oetheimer, PRO HAC VICE, Goodwin Procter LLP, Boston, MA.

Page 1279

MEMORANDUM OPINION AND ORDER

W. Keith Watkins, CHIEF UNITED STATES DISTRICT JUDGE.

This action is one in a long line of lawsuits alleging inadequate and illegal conduct on the part of the various pharmaceutical companies that " innovated, made, promoted, and sold" the prescription drug Reglan® or its generic counterpart, Metoclopramide (" MCP" ). (Doc. # 142, at 1.) Plaintiffs Danny and Vicki Weeks contend that Mr. Weeks ingested MCP in accordance with a prescription from his treating physician and developed a severe and incurable neurological disorder as a result. The Weeks allege that his diagnosis is the proximate result of Defendants Wyeth, Inc. (" Wyeth" ),[1] Pfizer, Inc. (" Pfizer" ), Schwarz Pharma, Inc. (" Schwarz" ),[2] Actavis Elizabeth, LLC, (" Actavis" ), and Teva Pharmaceuticals USA's (" Teva" ) dissemination of " inaccurate, misleading, materially incomplete, false and/or otherwise inadequate information" concerning the potential effects of exposure to Reglan/MCP. (Doc. # 142, at 8.) They bring the following claims against each Defendant: strict liability (Count I); negligence (Count II); breach of implied warranty (Count III); breach of express warranty (Count IV); fraud by misrepresentation (Count V); fraud by concealment, suppression, or omission of material facts (Count VI); failure to adequately warn (Count VII); and loss of consortium (Count VIII).

Presently before the court is Defendants Teva and Actavis's (" Generic Defendants" ) Motion for Judgment on the Pleadings, in which they argue that the Weeks's claims against them are preempted by federal law. (Doc. # 191.) The motion has been fully briefed. (Docs. # 191, 194, 197.) Upon consideration of the parties' arguments, the record, and the relevant case law, the court finds that the Generic Defendants' motion is due to be granted.

I. JURISDICTION AND VENUE

Subject-matter jurisdiction is proper pursuant to 28 U.S.C. § 1332. The parties do not contest personal jurisdiction or venue.

Page 1280

II. BACKGROUND

A. Facts

The FDA approved Reglan® in 1980 as a short-term therapy[3] for adults suffering from gastroesophageal reflux who did not respond to conventional therapy and to relieve the symptoms associated with acute and recurrent diabetic gastric stasis. Simply pet, Reglan® was designed to increase the speed at which food travels through the digestive system. In 1985, pharmaceutical manufacturers began producing MCP -- a generic version of Reglan® . MCP is equivalent to Reglan® in all therapeutically relevant aspects, including dosage, strength, and active ingredients.

Mr. Weeks's physician prescribed him MCP in 2007, and he took the drug for approximately two years. In 2009, Mr. Weeks was diagnosed with tardive dyskinesia (" TD" ). TD is a neurological disorder that commonly causes " involuntary, repetitive movements of the extremities, or lip smacking, grimacing, tongue protrusion, teeth grinding, rapid eye movements or blinking, puckering and pursing of the lips, and/or impaired and involuntary movement of the fingers." (Doc. # 142, at 12.) Mr. Weeks suffers from one or more of these symptoms. At present, there is no known cure for TD, and its effects rarely are reversible.

The Weeks allege that Mr. Weeks's prolonged ingestion of MCP caused him to develop TD. The active ingredient in MCP works to block the transfer of dopamine within the brain, which in turn causes the brain to produce additional dopamine receptors. Ultimately, prolonged MCP ingestion may lead the areas within the brain that control movement to become hypersensitive to dopamine, potentially resulting in the development of a neurological movement disorder. " Studies have shown that up to 29% of patients who take [MCP] for several years develop [TD]." PLIVA, Inc. v. Mensing, 564 U.S. 604, 131 S.Ct. 2567, 2572, 180 L.Ed.2d 580 (2011).

In the Amended Complaint, the Weeks allege that Defendants had actual knowledge that the risk of developing TD or another neurological side effect from long-term use of Reglan® or MCP was " approximately 100 times greater" than the risk that Defendants disclosed to medical professionals. (Doc. # 142, at 13.) The Weeks contend that Defendants failed to warn doctors and patients of the risks associated with long-term use and even " encouraged long term use of the drug," concealing the drug's " true risks and the true prevalence of side effects." (Doc. # 142, at 13.) The Weeks assert that, had Mr. Weeks's treating physician been warned of the true risks of MCP, he would have adjusted the prescription to avoid the risks associated with long-term use or not prescribed the drug at all.

B. Procedural History

This case has a lengthy and complex procedural history. The Weeks initially brought suit in July 2010. The Brand-Name Defendants[4] responded with a motion to dismiss. In the motion, they argued that Mr. Weeks only ingested the generic MCP, and accordingly, the Weeks could not maintain products-liability claims against them as the manufacturers and sellers of ReglanĀ® . On March 31, 2011, the Brand-Name Defendants' motion to dismiss was granted in part and denied in part. The court held that to the extent the Weeks were seeking " ...


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