Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court County of San Luis Obispo No. CV040243. Barry T. La Barbera, Judge.
Baum Hedlund, Karen Barth Menzies, Robert M. Brava-Partain; Ronald L.M. Goldman; Law Office of Donald J. Farber and Donald J. Farber for Plaintiffs and Appellants.
Drinker, Biddle & Reath, Thomas W. Pulliam, Jr., Michelle A. Childers, Alan J. Lazarus; King & Spalding, Chilton Davis Varner (pro hac vice), Andrew T. Bayman (pro hac vice), S. Samuel Griffin (pro hac vice), and Eric M. Wachter (pro hac vice), for Defendant and Respondent.
GILBERT, P.J.
The heirs of decedent Jack Lord appeal a summary judgment entered in favor of SmithKline Beecham Corporation, doing business as GlaxoSmithKline ("GSK"). We review the record independently and affirm. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.)
FACTS AND PROCEDURAL HISTORY
On November 18, 2002, Jack Lord sought advice from his long-time physician, Doctor Armando Siqueiros, because he was experiencing anxiety and sleeplessness due to financial problems. Siqueiros prescribed the antidepressant medication "Paxilâ," a member of a class of drugs known as selective serotonin reuptake inhibitors ("SSRIs"). On December 11 and 19, 2002, Siqueiros treated Lord and increased his dosage of Paxil because of his continued complaint of insomnia.
Following his last visit with Siqueiros, Lord displayed frightening and tragic behavior consistent with emergent suicidality. He was restless, withdrawn, disoriented, could not eat or sleep, and commenced dictating and writing suicide messages to Mrs. Lord and his children. On December 26, 2002, Lord pointed a firearm at his daughter and Mrs. Lord, and threatened to kill them. A family member summoned police officers. When Lord heard the police sirens, he committed suicide. His suicide note stated that "Paxil . . . made it easier" for him to commit suicide.
Lord's heirs brought this action against GSK for negligence, strict liability, breach of express and implied warranty, intentional and negligent misrepresentation, concealment, and fraud. Among other things, the heirs allege that GSK did not provide Siqueiros with adequate warnings regarding the use of Paxil and suicidality. Plaintiffs also allege a cause of action against Siqueiros for professional negligence. GSK answered the complaint and participated in discovery. It then moved for summary judgment, contending that alleged deficiencies in the Paxil warning label provided to Siqueiros was not the proximate cause of Lord's suicide.
The Lord heirs now have settled their action against Siqueiros and dismissed him from the lawsuit.
Discovery responses, deposition testimony, and declarations submitted by the parties in support of and in opposition to the summary judgment motion established this:
In deposition testimony, Siqueiros testified that he knew that the Food and Drug Administration had approved Paxil for treatment of general anxiety. He had initiated treatment with Paxil for approximately 25 patients with beneficial results. Siqueiros had continued treatment with Paxil for approximately 75 additional patients, also with good results. He stated that he did not read the warning label, consult the Physicians Desk Reference, or read any peer review articles prior to prescribing Paxil for Lord. Siqueiros testified that in his opinion, it was "not settled" that SSRIs were associated with an increased risk of suicidality. Based upon his conversations with Lord, Siqueiros believed that Paxil was beneficial to him. He also testified that in hindsight, his advice and warnings to Lord would not have been different: "I would give the same general warnings. . . [I]f you don't feel good with this medication, . . . stop it. . . . I believe the drug was working. I believe this drug was helping him."
Siqueiros also testified that he generally did not provide specific warnings to patients regarding possible side effects because he did not want to suggest side effects that patients might anticipate. He stated that he warned Lord of decreased libido, advised him to read the Paxil package insert, and recommended that he cease using the medication if his symptoms did not abate.
In a declaration written after the filing of GSK's summary judgment motion, Siqueiros declared that he was "confident" that he reviewed the warning label pursuant to "custom and practice" prior to prescribing Paxil to Lord. Siqueiros stated that he would have warned Lord and monitored him closely had GSK published a warning informing him of an increased risk of suicidality.
Mrs. Lord declared that the prescribed Paxil regimen resulted in dramatic changes in her husband's behavior. She stated that she would have monitored him closely had she known of an increased risk of suicidality associated with Paxil.
Doctor Peter Breggin, a psychiatrist specializing in clinical psychopharmacology, declared that in his opinion, Siqueiros would have informed Lord of the increased risk of suicidality and monitored him had GSK provided a warning.
The trial court sustained the evidentiary objections of GSK to the declarations of Siqueiros, Mrs. Lord, and Doctor Breggin. In part, it concluded that the declaration of Siqueiros was contradictory to his earlier deposition testimony. (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613 ["Admissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment."].) The trial court then granted summary judgment for GSK, concluding that plaintiffs did not present evidence of causation.
The Lord heirs appeal and contend that the trial court erred by: 1) not applying a "heeding presumption," presuming that Siqueiros would have read and heeded an adequate warning; 2) improperly sustaining objections to their declaratory evidence; and 3) improperly deciding disputed factual issues.
DISCUSSION
I.
The Lord heirs argue that the trial court erred by not applying the heeding presumption of section 402A of the Restatement Second of Torts, comment j: "Where a warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous." The heirs point out that many jurisdictions have applied the comment as a presumption in failure-to-warn cases. (see, e.g., Reyes v, Wyeth Laboratories (5th Cir. C.A. Tex. 1974) 498 F.2d 1264, 1282.) They acknowledge that California courts have not done so, and urge its application here. (Diamond v. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173, 184, fn. 8 [discussing but not adopting the heeding presumption].) The heirs assert that otherwise, they must prove causation with speculative evidence.
A plaintiff asserting causes of action based upon a failure to warn must prove not only that the warning was inadequate, but also that its inadequacy caused plaintiff's injury. (Motus v. Pfizer, Inc. (C.D. Cal. 2001) 196 F.Supp.2d 984, 991, affd. (9th Cir. 2004) 358 F.3d 659 [plaintiff's decedent committed suicide following use of SSRI antidepressant].) The heeding presumption is a rebuttable presumption that is a burden-shifting device assisting a plaintiff in establishing causation. (Ibid.) No California court has adopted the heeding presumption in a failure-to-warn case. (Id., at p. 993 ["N]o California court has adopted or applied that presumption, and several California courts have decided whether proximate cause has been or can be established in prescription drug and medical device failure-to-warn cases without mentioning the rebuttable presumption."].) Moreover, application of the heeding presumption in a prescription drug context raises "distinct policy concerns" concerning the use of prescription drugs to alleviate suffering and sustain life. (Id., at pp. 992.)
We need not decide the question, however, because Siqueiros's deposition testimony rebuts any heeding presumption. Siqueiros testified that he did not review the Paxil label prior to or following the prescription to Lord, nor did he rely upon the representations of GSK representatives in his prescription. He also had not read peer-review articles regarding Paxil. Siqueiros testified that he prescribed Paxil to Lord because of the beneficial results obtained by approximately 100 of his patients from the medication. He stated that it was his practice not to advise patients of possible side effects. Instead, he suggested that patients read the prescription insert and cease taking the medication if side effects occur. Siqueiros also testified that based upon his present state of information regarding Paxil, he would advise with the same general warnings because he believed "the drug was working . . . this drug was helping [Lord]." Thus stronger warnings would not have changed Lord's medical treatment or averted his suicide. (Motus v. Pfizer, Inc., supra, 358 F.3d 659, 661.)
II.
The Lord heirs assert that the trial court erred by sustaining GSK's objections to the declaration of Siqueiros. They claim that the declaration clarifies and is not inconsistent with his deposition testimony. The heirs also argue that the evidentiary rules regarding contradictory declarations in a summary judgment motion apply only to parties, not witnesses. They add that the declaration of Mrs. Lord and Doctor Breggin are also admissible to establish causation.
In our review of the trial court's evidentiary rulings in a summary judgment motion, we examine the rulings for an abuse of discretion. (Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457, 467; Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)
The trial court did not abuse its discretion by sustaining GSK's evidentiary objections. Siqueiros testified that he did not consult the Physicians Desk Reference prior to or following his prescription to Lord, and that in view of his present information regarding SSRIs, he would not have changed his warnings to him. His declaration contradicted his deposition testimony because it stated that it was his custom and practice to read the warning label prior to prescribing a drug and that he would have warned Lord had he known of an increased risk of suicidality. The trial court may disregard a declaration that conflicts with the deposition testimony of a party or a witness. (Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451.) Siqueiros was a party to the lawsuit and also an important witness to plaintiffs' case.
Moreover, Siqueiros's deposition testimony is not itself inconsistent. He testified that he obtained general information from many sources regarding the use of Paxil "for anxiety," but that he did not review the Physicians Desk Reference prior to prescribing it to Lord. Thus his declaration is not necessary to explain his deposition answers. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1524-1525 [trial court may disregard declaration that contradicts discovery responses but may not ignore credible evidence that explains party's answers].)
The trial court also properly sustained objections to the depositions of Mrs. Lord and Doctor Breggin as irrelevant and speculative. Under the learned intermediary doctrine, GSK owed a duty to warn to Siqueiros, but not Mrs. Lord. (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1116 ["[I]n the case of prescription drugs, the duty to warn runs to the physician, not to the patient."].) Breggin's declaration is speculative and irrelevant because it purports to predict that Siqueiros would have treated Lord differently had he known of Paxil's increased risk of suicide. Siqueiros testified in his deposition that he would not have advised Lord differently in light of his current knowledge of the association between SSRIs and suicidality.
III.
The Lord heirs contend that the trial court improperly disregarded their evidence raising triable issues of material fact. They point out that the standard of causation requires only that defendant's conduct be more than negligible or theoretical. (Bunch v. Hoffinger Industries, Inc. (2004) 123 Cal.App.4th 1278, 1302.) The heirs add that Siqueiros's declaration "shed[s] a different light on [his] deposition testimony." (Scalf v. D. B. Log Homes, Inc., supra, 128 Cal.App.4th 1510, 1523-1524.)
The trial court may grant a motion for summary judgment if no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th 264, 274.) A moving defendant bears the burden of showing that plaintiff has not established a prima facie case. (Ibid.) Once he establishes that plaintiff cannot establish one or more elements of his cause of action, the burden shifts to plaintiff to show the existence of a triable factual issue. (Ibid.) On appeal, the reviewing court examines the record independently, liberally construing the evidence in support of the resisting party and resolving all doubts concerning the evidence in his favor. (Ibid.)
Here the trial court properly sustained GSK's objections to Siqueiros's declaration. The remaining evidence does not raise an issue of material fact regarding causation because Siqueiros testified that he did not read the warning label prior to or after prescribing Paxil to Lord, and that he would not have advised Lord differently if he knew the information he now knows.
The judgment is affirmed. Respondent to recover costs on appeal.
We concur: COFFEE, J., PERREN, J.