United States District Court, D. Nebraska
CATHY KING, an individual, and STEVE KING, an individual, Plaintiffs,
PFIZER, INC., WYETH, LLC, WYETH PHARMACEUTICALS, INC., SCHWARZ PHARMA, INC., PLIVA, INC., and JOHN DOE PHARMACEUTICAL COMPANIES 1-40, Defendants.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
matter is before the Court on the Motion for Summary Judgment
submitted by Defendants Pfizer Inc. (“Pfizer”),
Wyeth LLC, and Wyeth Pharmaceuticals Inc. (collectively
“Wyeth”), and Schwarz Pharma, Inc. n/k/a UCB,
Inc. (“Schwarz”) (Filing No. 112, hereafter the
“Motion”). Pfizer, Wyeth, and Schwarz
(collectively “Defendants”) all move for summary
judgment on issues of statutes of limitations and repose.
the Court concludes that the Plaintiffs’ claims are
barred by Nebraska’s applicable statute of repose, the
Court will grant Defendants’ Motion (Filing No. 112).
AND PROCEDURAL HISTORY
following facts are those presented in the Defendants’
Memorandum of Law in Support of Motion for Summary Judgment
(Filing No. 113), supported by pinpoint citations to the
evidentiary record (Filing No. 114) in compliance with NECivR
56.1(a), and not contested by Plaintiffs in their Brief and
evidentiary submissions (Filing No. 164). See NECivR
56.1(b). Also included are some additional relevant facts
presented in Plaintiffs’ Brief, supported by pinpoint
citations to the evidentiary record, and not contested in
Defendants’ Reply Brief (Filing No. 166). For purposes of
the pending Motion, all facts are viewed in a light most
favorable to Plaintiffs.
Defendants are Delaware corporations with their principal
places of business in New Jersey (Wyeth), New York (Pfizer),
and Georgia (Schwartz). The Defendants are engaged in the
business of manufacturing and distributing pharmaceuticals.
Cathy King (“Mrs. King”) was at all relevant
times a Nebraska resident. She was first prescribed the
pharmaceutical product known as Reglan®, or its generic
bioequivalent metoclopramide, in 1988 for treatment of
gastrointestinal conditions. Injectable Reglan® was
administered to her on several occasions between September
1992 and May 1994. She stopped taking
Reglan®/metoclopramide in or about 1995, but resumed
again in or about May 2000, then stopped in late 2005.
the mid-1980s, before Mrs. King began ingesting
Reglan®/metoclopramide, the product labeling for
Reglan® warned that tardive dyskinesia, “a syndrome
consisting of potentially irreversible, involuntary,
dyskinetic movements may develop in patients treated with
metoclopramide” and “[b]oth the risk of
developing the syndrome and the likelihood that it will
become irreversible are believed to increase with the
duration of treatment and the total cumulative dose.”
(Filing No. 114-5 at ECF 3.)
1989 to 1991, Mrs. King began to experience involuntary
facial movements, rapid eye blinking, teeth grinding, and
tongue biting. She and her husband, Plaintiff Steve King
(“Mr. King”), were aware that she suffered from
movement disorders in the 1990s. By January 2001, Mrs.
King’s involuntary movements occurred more often, and
her symptoms included lip-smacking. In February 2001, a
treating physician noted that Mrs. King experienced rhythmic
movements of the mouth and tongue. When Mrs. King was
admitted to a hospital in March of 2001, staff observed and
noted her lip-smacking. By February 2002, her symptoms
included lip-smacking, teeth grinding, facial twitching,
rapid blinking, and tongue movement. In February 2006, a
physician’s assistant noted that Mrs. King had
tongue-thrusting, lip-licking, and abnormal neck movements.
In July 2006, one physician observed Mrs. King’s
automatic movements of the mouth, and another physician noted
that Mrs. King exhibited symptoms like tardive dyskinesia. In
August 2006, a physician’s assistant noted that Mrs.
King had rolling, parkinsonian type movements of the head and
neck. In September 2006, Mrs. King began to see a new
physician’s assistant for psychiatric symptoms,
including hallucinations, anxiety, and depression. That
physician’s assistant noted that Mrs. King had many
tics, including head movement and lip-smacking, and
recommended that she see a neurologist. Mrs. King declined.
On at least five subsequent visits in 2006, and three visits
in early 2007, that physician’s assistant noted that
Mrs. King continued to experience dyskinesia. On December 12,
2006, two physicians noted that Mrs. King had what appeared
to be “worsening tardive dyskinesia, ” and
recommended she discuss the condition with a psychiatrist. In
June 2007, Mrs. King’s medical providers again noted
her dyskinesia, including increased tongue movements and more
tics. In September 2007, a physician noted Mrs. King’s
spontaneous mouth movements, suggestive of side effects of
medication. In December 2008, a treating physician noted Mrs.
King’s involuntary jerking of extremities and
February 2011, Mr. King saw a television advertisement
discussing a link between Reglan®/metoclopramide and
tardive dyskinesia. In March 2011, Mrs. King saw a physician
about her movement disorder and said the movements began when
she was taking Reglan®. In August 2011, the physician
diagnosed Mrs. King with tardive dyskinesia.
August 7, 2013, Plaintiffs filed this action in the District
Court of Lancaster County, Nebraska. Defendants removed the
action to this Court, based on the Court’s diversity
their Complaint (Filing No. 1-13), Plaintiffs allege that
Wyeth’s corporate predecessors developed Reglan®
and marketed it throughout the 1980s; that Wyeth continued to
manufacture, distribute, and sell Reglan® after certain
corporate mergers in 1989; that Wyeth sold its rights to
Reglan® tablets to Schwartz in December 2001; that Pfizer
acquired Wyeth in 2009; and that Defendants Pliva, Inc.
(“Pliva”), and John Doe Pharmaceutical Companies
1-40 (“John Does”), manufactured, distributed,
and sold generic versions of metoclopramide since 1984, using
the same warning labels or package inserts as Reglen®.
First Cause of Action concerns personal injury to Mrs. King,
and presents five remaining theories of
recovery: (1) product liability, asserted against
Wyeth, Schwarz, Pliva, and John Does, (2) conscious
misrepresentation involving physical harm, asserted against
Wyeth, (3) negligent misrepresentation, asserted against
Wyeth, (4) common law fraud and fraudulent concealment,
asserted against Wyeth, and (5) negligent failure to provide
adequate warnings for a prescription drug, asserted against
Schwarz. Plaintiffs’ Second Cause of Action concerns
Mr. King’s loss of consortium.