REVISED, FEBRUARY 8, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-40591

_____________________

In Re: NORPLANT CONTRACEPTIVE PRODUCTS LIABILITY LITIGATION

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THERESA HARRISON, ET AL.,

Plaintiffs,

THERESA HARRISON; ANDREA ELAINE HAUGHT,

Plaintiffs-Appellants,

versus

AMERICAN HOME PRODUCTS CORPORATION, doing

business as Wyeth-Ayerst Laboratories, a

Delaware Corporation; WYETH LABORATORIES

INCORPORATED,

Defendants-Appellees.

------------------------------------------

BARBARA WOODS, ET AL.,

Plaintiffs,

KRISTY YOUNGBLOOD,

Plaintiff-Appellant,

versus

AMERICAN HOME PRODUCTS CORPORATION, doing

business as Wyeth-Ayerst Laboratories, a

Delaware Corporation; WYETH LABORATORIES

INCORPORATED,

Defendants-Appellees.2

-------------------------------------------

CRYSTAL McDONALD, ET AL.,

Plaintiffs,

BEVERLY McDANIEL,

Plaintiff-Appellant

versus

AMERICAN HOME PRODUCTS CORPORATION, doing

business as Wyeth-Ayerst Laboratories, a

Delaware Corporation; WYETH LABORATORIES,

INCORPORATED,

Defendants-Appellees.

------------------------------------------

WENDY BOEHM, ET AL.,

Plaintiffs,

JENNIFER L. BURTON,

Plaintiff-Appellant,

versus

AMERICAN HOME PRODUCTS CORPORATION, doing

business as Wyeth-Ayerst Laboratories, a

Delaware Corporation; WYETH LABORATORIES

INCORPORATED,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the

Eastern District of Texas, Beaumont

_________________________________________________________________ January 29, 1999

Before JOLLY, DAVIS, and DUHÉ, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:1 These effect s include severe headaches, mood swings,

depression, nausea, acne, a rm pain, numbness, breast tenderness,

weight gain, hair loss, cramps, and bleeding irregularities,

including amenorrhea.

3 T he appellants in this matter (collectively referred to as

“Harrison”) are five plaintiffs who each suffered side effects from

their use of the prescription contraceptive Norplant, manufactured

by Wyeth Lab oratories Incorporated, a company owned by American

Home Products (“AHP”). They appeal a district court ruling for

summary judgment in favor of AHP. The primary question presented

on appeal is whether the learned intermediary doctrine should apply

to the plaintiffs’ claim s. Because we find no error in the

district court’s ruling, we affirm. AHP cross-appeals the district

court’s denial of its motion for partial summary judgment based on

the statute of limi tations bar. Because we find that AHP is

entitled to summary judgment, we need not address this issue on

appeal.

I

This case involves litigation over the side effects of the

contraceptive Norplant. Norplant is a long-term birth control

method whereby the recipient has six thin capsules of the hormone

progestin inserted just below the skin of her upper arm. Harrison

claims that Norplant can also have significant, unwanted side

effects. 14

In this case, all five plaintiffs received Norplant from their

personal physicians and each suffered side effects. On July 22,

1994, a class action was filed against AHP, as the parent entity of

Wyeth Laboratories—the manufacturer of Norplant, on behalf of “all

adult women who have had Norplant inserted in their bodies and who

have sustained damages.” On December 8, 1994, the Judicial Panel

on Multidistrict Litigation transferred all federal Norplant

actions to the Eastern District of Texas for consolidated pretrial

proceedings before Judge Richard Schell. Each of the plaintiffs in

this matter subsequently filed individual actions in the Eastern

District of Texas. On August 5, 1996, the court denied the

plaintiffs’ motion for class certificatio n, deciding that class

certification was prema ture and that bellwether trials were

appropriate to determine whether the class should be certified

under rule 23(c)(4). The plaintiffs in this case were selected for

the first of three bellwether trials.

At the close of discovery, AHP moved for summary judgment and

the district court granted the motion. The district court held

that the learned intermediary doctrine applied to all of the claims

filed by Harrison. Under that doctrine “when a drug manufacturer

properly warns a prescribing physician of the dangerous

propensities of its product, the manufacturer is excused from

warning each patient who receives the drug. The doctor stands as

a lea rned intermediary between the manufacturer and the ultimate5

consumer. ” Alm v. Aluminum Co. of America , 717 S.W.2d 588, 592

( Tex. 1986) (citations omitted). The district court concluded

that, under the doctrine, AHP ha d no obligation to warn the end

user of the potential side effects of Norplant. The district court

then concluded that Harrison had failed to produce evidence that

AHP had not properly notified the prescribing ph ysicians of

Norplant’s potential side effects. Harrison now timely appeals.

II

Summary judgment is proper if “the pl eadings, depositions,

answers to interrogatories and admissions on file, togeth er with

affidavits, if any, show that there is no genuine dispute as to any

material fact and that the moving party is entitled to judgment as

a matter of law.” Fed.R.Civ.P. 56(c). A summary judgment ruling

is reviewed de novo

, applying the same criteria employed by the

district court. Conkling v. Turner , 18 F.3d 1285, 1295 (5th Cir.

1994).

Harrison raises a number of objections to the district court’s

application of the learned intermediary doctrine. First, Harrison

argues that the learned intermediary doctrine cannot be applied to

claims under the Texas Decept ive Trade Practices Act (“DTPA”) as

the doctrine is a common law defense and cannot be applied to a

statute like the DTPA. Second, Harrison urges that even if the

doctrine could be applied to the claims in this case, it should not

as AHP marketed Norplant directly to the end users and that the end2 Harr i son alleges violations of T EX

. B US

. & C OM

. C ODE

§ 17.46(b)(5) (“representing that goods or services have

sponsorship, approval, characteristics, ingredients, uses,

benefits, or quantities which they do not have or that a person has

a sponsorship, approval, status, affiliation, or connection which

he does not”); (b)(7) (“representing that goods or services are of

a particular stand ard, quality, or grade, or that goods are of a

particular style or model, if they are of another”); and (b)(23)

(“the failure to disclose information concerning goods or services

which was known at the time of the transaction if such failure to

disclose such information was intended to induce the consumer into

a transaction into which the consumer would not have entered had

the information been disclosed”). Harrison also alleges violations

of implied and express warranties under § 17.45(5) of the Act.

6 users relied on warnings (and the absence of warnings) provided by

AHP’s marketing rather than warnings provided by their physicians.

Finally, Harrison argues that the doctrine should not apply because

Norplant was required by the Food and Drug Administration (“FDA”)

to provide warnings about the side effects.

A

Harrison argues that the learned intermediary doctrine is

inapplicable to t he claims made under the DTPA. 2 The district

court did not address this issue below, apparently concluding that,

because the DTPA claim was equivalent to the other common law

claims, the learned intermediary doctrine should apply to it.

On appeal, Ha r rison argues that the learned intermediary

doctrine is a common law defense, and that common law defenses may

not be applied to the DTPA. Harrison’s support for this argument

comes from a line of cases spawned by the Te xas Supreme Court’s

decision in Smith v. Baldwin

, where that court stated: “The DTPA7

does not represent a codification of the common law. A primary

purpose of the enactment of the DTPA was to provide consumers a

cause of action for deceptive practices without the burden of proof

and numerous defenses encountered in a common law fraud or breach

of warranty suit.” 611 S.W.2d 611, 616 (Tex. 1980).

Subsequent Texas cases have applied Baldwin to ge n erally

disallow the us e in DTPA claims of both common law defenses and

common law doctrines that affect the burden of proof. A lvarado v.

Bolton

, 749 S.W.2d 47, 48 (Tex. 1988)(barring use of doctrine of

merger); Weitzel v. Barnes

, 691 S.W.2d 598, 600 (Tex. 1985)(barring

use of parole evidence rule and common law burden of proof); O’Hern

v. Hogard

, 841 S.W.2d 135, 137 (Tex. App. --Hous. 1992) (barring

common law doctrine of new and independent cause); Shenandoah

A ssociates v. J & K Properties, Inc. , 741 S.W.2d 470, 496 (Tex.

App.--Dalla s 1987, writ denied) (barring defense based on waiver

and ratification); Home Savings Association v. Guerra , 720 S.W.2d

636, 644 (Tex. App.--San Antonio 1986) (barring estoppel defense),

aff'd in part, rev'd in part , 733 S.W.2d 134 (Tex. 1987); R oy E.

Thomas Const. Co. v. Arbs

, 692 S.W.2d 926, 932 (Tex. App.--Fort

Worth 1985) (barring defense of impossibility), writ rev’d n.r.e.

per curiam ,700 S.W.2d 919 (Tex. 1985); Joseph v. PPG Indus., Inc.

,

674 S.W.2d 862, 865-66 (Tex. App.--Austin 1984, writ rev’d n.r.e.)

(barring defense of failure of consideration).8

The Texas courts have also made clear, however, that at least

some common law common law doctrines are applicable to the DTPA.

Joseph E. Seagram & Sons, Inc. v. McGuire , 814 S.W.2d 385, 387-88

(Tex. 1991) (holding that, under the DTPA, no legal duty exists to

warn of the health risks of alcohol consumption because such risks

are "within the ordinary knowledge common to the community");

Autohaus, Inc. v. Aguilar , 794 S.W.2d 459, 462 (Tex. App.--Dallas

1990) (permitting use of common law doctrine of “puffing” in DTPA

claim), writ denied per curiam

, 800 S.W.2d 853 (Tex. 1991); Jenkins

v. Steakley Bros. Chevrolet Co. , 712 S.W.2d 587, 590 (Tex.

App.--Waco 1986, no writ) (permitting DTPA suit to be barred by

accord and satisfaction). In both S eagram and Autohaus

, Texas

courts therefore permitted a common law doctrine that defined the

degree to which a seller is responsible for a consumer’s reliance

on the safety or quality of a sold product.

Harrison asserts, however, that the learned intermediary

doctrine is a common law defense that should not be applicable to

the DTPA under Baldwin

. The basis for this conclusion arises from

the following language in Rolen v. Burroughs Wellcome Co.

, 856

S.W.2d 607, 609 (Tex. App.--Waco 1993 writ denied): “The ‘learned

intermediary doctrine’ is distantly related to the tort concept of

‘superseding cause.’ Although the doctrine has never been

recognized by the Texas Supreme Court, it has been adopted by

intermediate appellate courts.” Based on this language, Harrison9

argues that the doctrine is a common law defense inapplicable to

the DTPA. To the extent that the learned intermediary doctrine is

comparable to the tort concept o f superseding cause, a credible

argument can be made that, under O’Hern

, the doctrine should not be

applicable to the DTPA.

AHP responds, however, by arguing that the doctrine is not a

defense but instead is “a rule of law that defines a pharmaceutical

manufacturer’ s duty to provide adequate warnings with its

products.” AHP further supports its contention by noting that in

three cases, the Texas courts, though admittedly not the Texas

Supreme Court, have applied the lea rned intermediary doctrine to

the DTPA. R ivers v. Am erican Home Products Corp. , No.

342-160538-95 (Order dated 4/9/98) (Appellee’s Record Excerpt Tab

4); Bean v. Baxter Healthcare Cor p. , 1998 WL 104944, at *8 (Tex.

App.--Houston [14th Dist.] 1998, no writ h.); Jor dan v. Geigy

Pharmaceuticals

, 848 S.W.2d 176 (Tex. App.—Fort Worth 1992, no

writ.). The most telling of these cases is Rivers , which applies

the doctrine to the DTPA in the context o f the same Norplant

litigation addressed in this case.

While Texas courts ha v e applied the learned intermediary

doctrine to the DTPA, none of them have explicitly addressed the

argument made by Harrison here. That Texas appeal courts have

applied the doctrine in DTPA cases despite the edict not to apply

common law defenses to the DTPA, nevertheless suggests the result3 In U.S. v. Johnson

, 160 F.3d 1061, 1063-64 (5th Cir. 1998),

we recently addressed the degree to which we are bound by holdings

of the Texas appeal courts. In this case, where no Texas Supreme

Court case is directly on point, we may look to an appeal court

holding for guidance if it is likely to be adopted by the Texas

Supreme Court.

10 a Texas court would likely reach if presented with this issue. 3 We

therefore make an Erie guess that the Texas Supreme Court would

hold that the learned intermediary doctrine is not a common law

defense but instead a common law doctrine, like those in Seagram

and Autohaus , that establishes the degree to which a prescription

drug manufacturer is liable for an end user’s reliance on the

effects of a prescription drug. Because we hold that the learned

intermediary doctrine is not a common law defense like those barred

by Baldwin

, Harrison’s argument that the district court incorrectly

applied it to the DTPA fails.

B

Harrison’s other two arguments, each of which have been

thoroughly addressed by the district court below, also lack merit.

We briefly address each in turn.

Harrison argues that the learned intermediary doctrine should

not apply in this instance given AHP’s knowledge of Norplant’s side

effe cts and its conduct in marketing Norplant. Harrison argues

that, for reasons of public policy, Norplant should have had a duty

to wa rn the end user of Norplant’s side effects because of the

reduced role physicians play in selecting contraceptives for their4 Harrison argues that although none of the plaintiffs were

ever exposed to direct marketing, their physician s did show them

videos and other materials prepared by AHP in explaining Norplant

to them. Those materials, however, were entirely within the

control of the physician and AHP had no control over which, if any,

of the materials were shown to the patient.

11 patients. Harrison contends that the physician’s reduced role

i nvalidates the rationale of the learned intermediary doctrine

because the patient cannot rely on the physician to provide an

adequate warning. Although it may be true that physicians may seek

to provide greater freedom to their patient s in selecting an

appropriat e form of contraception, Norplant is nevertheless a

prescription drug. The record makes it clear that physicians play

a significant role in prescribing Norplant and in educating their

patients about the benefits and disad vantages to using it.

Harrison’s argument therefore is unavailing.

Harrison also argues that because AHP engaged in “aggressive”

marketing, AHP should be liable for not providing adequate

warnings in conjunction with that marketing. This argument is

critically weakened by the absence of any evidence on the record

that any of the five plaintiffs actually saw, let alone relied, on

any m arketing materials issued to them by AHP. 4 Given this

deficiency, e ven if such an exception to the doctrine should

apply, summary judgment wou ld still be appropriate in this case.

It seems clear, however, that even if the facts were in Harrison’s

favor, Harrison would still lose. Two of our cases applying Texas12

law in this area have concluded that, as long a s a physicianpatient relationship exists, the learned intermediary doctrine

applies. H urley v. Lederle Laboratories

, 863 F.2d 1173, 1178 (5th

Cir. 1988); Swayze v. McNeil Laboratories

, 807 F.2d 464 (5th Cir.

1987).

Harrison’s next argument is that there should be an exception

to the learned intermediary doctrine when the FDA has provided

recommended warnings. To support this argument, Harrison relies

on an Oklahoma Supreme Court case for the proposition that, when

the FDA mandate s that labeling information be provided to

patients, the learned intermediary doctrine should not apply.

Edwards v. Basel Pharmaceuticals

, 933 P.2d 298 (Okla. 1997). The

court reached this somewhat counter-intuitive result by concluding

that, where the potential side effects of a prescription drug are

so serious that the FDA place s a requirement on the manufacturer

to warn the end user, the rationale of the learned intermediary

doctrine no longer applies.

At the outset, we find this conclusion t o be puzzling. Our

understanding of the rationale of the learned intermediary

doctrine, at lea st in substantial part, is that it seeks to

encourage the drug manufacturer to make available prescription

drugs despite their potentially harmful side effects, by shielding

the drug manufacturer from liability when the drug is prescribed

by a properly trained physician. Why the learned intermediary13

doctrine should somehow be less applicable when the severity of

the side effects encourages the FDA to promote additional labeling

escapes us.

Regardless of the merits of the Oklahoma Court’s holding,

there are other reasons why it is not applicable to this case.

First, although the state of Oklaho ma has created this exception

to the learned intermediary doctr ine, there is no evidence that

the Texas Supreme Court would be inclined to follow in that

state’s footsteps. In addition, the FDA has explicitly stated

that its regulation should not affect civil tort liability for

drug manufacturers and dispensers. FDA, Prescription Drug

Products; Patient Labeling Requirements, 44 Fed. Reg. 40016, 40023

(July 6, 1979). Finally, even if we were permitted to create such

an exception to the doctrine in Texas law, Harrison’s argument in

this case would still fail as the FDA did not mandate any sort of

labeling for Norplant.

III

The only issue Harrison raises on appea l is whether the

lea rned intermediary doctrine applies to her claims. For the

foregoing reasons, it does. The judgment of the district court is

therefore

A F F I R M E D.