Opinion
MASTER FILE (MDL No. 1348); 00 Civ. 2843 (LAK), 01 Civ. 6054 (LAK)
March 14, 2002
This Document Relates to: PRETRIAL ORDER NO. 65 (Motion of Forshag's Drug Store)
Plaintiffs in Ashby v. Warner-Lambert, No. 01 Civ. 6054 (LAK), seek to hold defendants, including Forshag's Drug Store ("Forshag's"), liable under theories of negligence, negligent misrepresentation, breach of warranty, strict liability, and fraud and deceit. The essence of the claims against Forshag's is that it dispensed Rezulin to the plaintiffs without warning them of Rezulin's alleged dangers. The complaint fails to state a claim upon which relief may be granted against Forshag.
Plaintiffs argue that their strict liability claim under the Louisiana Products Liability Act ("LPLA") is not based on Forshag's failure to warn. As plainitffs acknowledge, however, the LPLA holds a seller liable for "damages resulting from defects in a product of which a seller knew or should have known, but failed to declare." Pl. Mem. at 6. See also Pilet v. Ciba-Geigy Corp., No. 96-021, 1996 WL 8962, at *1 (E.D.La. Feb. 28, 1996); Wilson v. State Farm Fire and Cas. Ins. Co., 654 So.2d 385, 387 (La.App. 3d Cir. 1995) . Thus this claim, too, rests on the allegation that Forshag's failed to declare the dangers of Rezulin or, in other words, that Forshag's failed to warn the plaintiffs.
This Court already has ruled that in Louisiana, where Forshag's is located, "a pharmacist's duties are solely to fill a prescription correctly and to warn the patient or to notify the prescribing physician of an excessive dosage or of obvious inadequacies on the face of the prescription which create a substantial risk of harm to the patient." In re Rezulin Products Liab. Litig., 133 F. Supp.2d 272, 294 (S.D.N.Y. 2001) (internal quotations omitted). Plaintiffs have not alleged that Forshag's filled their prescriptions incorrectly, filled prescriptions for excessive dosages or that there were obvious inadequacies on the face of their prescriptions. They therefore have not stated a legally viable claim against Forshag's.
This Court further ruled that there was no reason to suppose that pharmacists could be held liable under Louisiana law for failing to tell patients of alleged harmful side effects of Rezulin under a failure to warn, breach of warranty or fraudulent misrepresentation theory. Id. In so ruling, the Court duly considered the issues raised by what plaintiffs label "recent changes" in the state of the law governing pharmacists.
These "recent changes" include Louisiana court opinions from 1986, 1993 and 1996, the federal Omnibus Budget Reconciliation Act of 1990, and multiple amicus briefs submitted to the Supreme Court of Illinois in a 1992 case. See Pl. Mem. at 3-4. None of this material calls the Court's prior ruling into question.
Even if plaintiffs' theories of liability potentially were viable as a matter of law, the complaint would fail to state a claim against Forshag's. Plaintiffs allege no factual basis for their assertion that Forshag's knew or should have known about the alleged dangers of Rezulin. As this Court noted in Rezulin I, there is no likelihood that such an allegation would succeed given that the crux of plaintiffs' case is that the manufacturer defendants hid the information regarding Rezulin's alleged dangers from everyone, including pharmacies. See id. at 290. This failure is fatal also to plaintiffs' attempt to hold Forshag's liable as a "seller" of Rezulin. Even if the Lousiana courts were to consider Forshag's a "seller" of Rezulin, under the Louisiana Products Liability Act a "[s]eller's liability is limited to damages resulting from defects in the product of which he knew, or should have known, and failed to declare." Wilson v. State Farm Fire and Cas. Ins. Co., 654 So.2d 385 (La.App. 3 Cir. 1995). Additionally, there are no factual allegations that could support plaintiffs' "Agent Misrepresentation" or fraudulent misrepresentation claim against Forshag's because plaintiffs fail to allege with the necessary specificity that Forshag's made any intentional misrepresentations to them with regard to Rezulin.
Cf. Rezulin I, 133 F. Supp.2d at 288-92 n. 74 (holding that Mississippi would not impose strict liability on pharmacists as the "sellers" of prescription drugs).
Accordingly, Forshag's motion for judgment on the pleadings dismissing the complaint (No. 01 Civ. 6054) against it is granted.
SO ORDERED.