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King v. Pfizer, Inc.

United States District Court, D. Nebraska

August 19, 2016

CATHY KING, an individual, and STEVE KING, an individual, Plaintiffs,


          Laurie Smith Camp Chief United States District Judge.

         This 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.

         Because 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).


         The 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).[1] For purposes of the pending Motion, all facts are viewed in a light most favorable to Plaintiffs.

         The 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.

         Plaintiff 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.

         Since 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.)

         From 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 lip-smacking.

         In 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.

         On 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 jurisdiction.

         In 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®.

         Plaintiffs’ First Cause of Action concerns personal injury to Mrs. King, and presents five remaining theories of recovery[2]: (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.

         STANDARD ...

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