Opinion
Master File 00 Civ. 2843 (LAK).
February 12, 2002.
PRETRIAL ORDER NO. 53 (Disposition of Certain Motions)
The following motions are disposed of as follows:
1. The motion to substitute local counsel in No. 00 Civ. 4499 is granted.
2. The motion of Sherman Salkow Petoyan Weber P.C. to withdraw as counsel for plaintiffs in No. 01 Civ. 1963 is granted.
3. The motion of Warner-Lambert and Pfizer, Inc. to dismiss count three of the complaint in No. 01 Civ. 6510 is granted. Count three purports to allege a claim for breach of implied warranty, which has been abolished in Florida for plaintiffs not in privity with the defendant with Florida's adoption of strict products liability. E.g., Kramer v. Piper Aircraft Corp., 520 So.2d 37, 39 (Fla. 1988). As plaintiff fails to allege that his decedent purchased Rezulin from these defendants, count three of his complaint is insufficient.
4. The motion of Eckerd Corporation of Florida, Inc. to dismiss the complaint in No. 01 Civ. 6510 as to it is granted. The only allegation against Eckerd is that it may have dispensed Rezulin that was prescribed for plaintiff's decedent by her physician. Under Florida's learned intermediary doctrine, no claim lies against the pharmacy in circumstances such as those alleged. E.g., McLeod v. W.S. Merrill Co., 174 So.2d 736 (Fla. 1965).
5. The motion of Warner-Lambert Company and Pfizer, Inc. to dismiss Count V of the complaint in No. 01 Civ. 6968 is granted. This count purports to allege a claim for breach of implied warranty. As plaintiff does not allege that her decedent purchased the drug from these defendants, this count fails to state a claim upon which relief may be granted for the reasons set forth in paragraph 3.
6. Plaintiffs' motion in No. 01 Civ. 7767 for an extension of time within which to file fact sheets is granted to the extent that the time is extended nunc pro tunc by seventy days.
7. The motion of defendant Katherine Jew, M.D., to dismiss the complaint in No. 01 Civ. 9831 is granted. It is undisputed that the malpractice claim is barred by virtue of plaintiffs' failure to comply with the Texas Medical Liability and Insurance Improvement Act, Tex. Rev. Civ. Stat. Ann. art. 4190i. The only disputed question is whether plaintiffs' self-styled claim for breach of express warranty is outside the Act. Plaintiffs rely on Sorokolit v. Rhodes, 889 S.W.2d 239 (Tex. 1994), which held that the Texas Deceptive Trade Practices Act, which ordinarily precludes recasting of medical malpractice claims as suits under the DTPA, does not preclude suits for "knowing misrepresentation or breach of express warranty in cases in which a physician or health care provider warrants a particular result." Id. at 243. They contend that Dr. Jew warranted a particular result and, in consequence, that the warranty claim survives despite the MLIIA.
The principle of Sorokolit has been extended to the MLIIA. See Walden v. Jeffrey, 907 S.W.2d 446, 447-48 (Tex. 1995). But the availability of a claim for breach of express warranty depends upon the presence of a concrete guaranty of a particular result. Indeed, in Walden the plaintiff's breach of warranty claim — which was based on an allegation that the dentist had breached an express warranty that her dentures would fit — was dismissed under the MLIIA on the ground that "the allegation that Walden provided ill-fitting dentures cannot be anything other than that he was negligent." Id. at 448.
Here, plaintiffs allege only that Dr. Jew said "that Rezulin was safe, effective and well accepted by patients." That is not even arguably a guarantee of a particular result, particularly given the view of the Texas Supreme Court in Walden. Accordingly, the action will be dismissed as to Dr. Jew.
8. Plaintiffs' motion to preserve testimony in No. 01 Civ. 7767 is granted without opposition.
9. The motion of defendant Kam Wyatt in No. 01 Civ. 7751 to dismiss the complaint as to him is granted for the reasons set forth in In re Rezulin Products Liab. Litig., 133 F. Supp.2d 272, 287 (S.D.N.Y. 2001) (Alabama sales representative protected from liability by Alabama extended manufacturers' liability doctrine).
SO ORDERED.