United States Court of Appeals,

Fifth Circuit.

No. 93-3341.

Margaret Ann WHEAT, et al., Plaintiffs-Appellants,

v.

PFIZER, INC., et al., Defendants-Appellees.

Sept. 14, 1994.

Appeal from the United States District Court for the Middle District of Louisiana.

Before WISDOM, DAVIS, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge.

Plaint iffs, the survivors of Margaret Gordon, brought this product liabilit y case against Pfizer,

Inc. ("Pfizer"), and McNeil Pharmaceutical, a division of McNeil Lab, Inc., ("McNeil"). The district

court granted summary judgment for McNeil. The case against Pfizer proceeded to trial and during

jury deliberation a mistrial was declared. Following the mistrial, the district co urt granted Pfizer's

motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b). Plaint iffs

appeal. Pfizer and McNeil moved to dismiss the appeal as untimely. We deny the motion to dismiss

and affirm the grant of summary judgment and judgment as a matter of law.

FACTS

In July 1989, Margaret Gordon's treating physician prescribed Feldene, a drug manufactured

by Pfizer, for her chronic neck pain. The prescribed dosage was one capsule per day. She filled this

prescription four times over the next four months, for a total of one-hundred capsules. A series of

routine tests at that time indicated that her liver was generally healthy.

Mrs. Gordon returned to her physician about five weeks later complaining that the Feldene

had not alleviated her d isco mfo rt . Her physician then prescribed Parafon Forte DSC, a drug

manufactured by McNeil, and told her to continue using the Feldene as well. On this visit, the doctor

may have given Mrs. Gordon some samples of Parafon Forte DSC. At trial, he did not recall having

done so, but one of her children testified that he had seen a box at her home similar to the one i n1 The Lemmon Company, manufacturer of Chlorzoxazone, was a party in the district court but

is not a party to this appeal. which Parafon Forte DSC is packaged. It is undisputed that Mrs. Go rdon did not fill the Parafon

Forte DSC prescription until six days after she received it. At that time, the pharmacist substituted

the drug Chlorzoxazone, a generic form of Parafon Forte DSC ma nufact ured by the Lemmon

Company. Thus, Mrs. Gordon's only possible exposure to McNeil's product Parafon Forte DSC

would have been from samples, which the Defendants deny she was ever given.

During the week of Thanksgiving 1989, Mrs. Gordon became violently ill. On November 28,

1989 she again saw her physician who found her jaundi ced and ordered her to stop taking the

Feldene. He apparently did not instruct her to stop taking the Chlorzoxazone. Tests performed at

that time s ho wed serious liver dysfunction, and her condition was diagnosed as hepatitis. Mrs.

Gordon tested negative for hepatitis A and hepatitis B. At the time of Mrs. Gordon's illness there was

no available test for hepatitis C, so it was never determined whethe r she suffered from that ty pe.

Hepatitis A, B, and C are collectively referred to as "viral hepatitis" and are not caused by medication.

Mrs. Gordon was hospitalized on December 1, lapsed into a coma on December 12, and died

the following evening. Plaintiffs, claiming t hat the Feldene and Parafon Forte DSC caused Mrs.

Gordon's hepatitis, sued Pfizer and McNeil. 1 Plaintiffs later moved to join the physicians who had

treated Mrs. Gordon, and to remand the case to the state court. The motion was denied.

The primary issue in this ca se is whether the Plaintiffs have made a sufficient showing that

Mrs. Gordon's hepatitis was caused by Feldene or by Parafon Forte DSC, rather than by viral hepatitis

so as to su rvive Pfizer's motion for judgment as a matter of law and McNeil's pretrial motion for

summary judgment.

DISCUSSION

I. Timeliness of the Appeal

Pfizer and McNeil contend that Plaint iffs' notice of appeal was untimely fi led and ask this

Court to dismiss the appeal for lack of jurisdiction. They argue that because the district court's denial

of Plaintiffs' post-trial motion was filed on April 1, Plaintiffs' notice of appeal filed on May 5, morethan thirty days after the denial of the post-tri al motion, was unt imely. This argument ignores the rule

that, for purposes of determining whether a notice of appeal was t imely, the relevant date is the date

the post-tri al mo t ion was entered on the docket, not the date it was filed. S ee Vincent v.

Consolidated Operating Co., 17 F.3d 782, 785 and n. 8 (5th Cir.1994) (citing Burrell v. Newsome,

883 F.2d 416, 418 (5th Cir.1989)). The district court's denial was entered on the docket sheet on

May 13. Thus the Plaintiffs' May 5 notice of appeal was timely and is treated as if it had been filed

immediately after the entry of the judgment. See Fed.R.App.P. 4(a)(2).

II. Suit Against Pfizer

A. Pfizer's Motion for Judgment as a Matter of Law

We review a motion for judgment as a matte r o f law de novo, applying the same legal

stan dard as di d the tri al

court. O mnitech Int'l, Inc. v. Clorox Co., 11 F.3d 1316, 1322-23 (5th

Cir.1994). Judgment as a matter of law is appropriate if the evidence at trial points so strongly and

overwhelmingly in the movant's favor that reasonable jurors could not reach a contrary conclusion.

Fed.R.Civ.P. 50(a); Omnitech, 11 F.3d at 1323.

Louisiana imposes liabilit

y on the manufacturer of an unreasonably dangerous product when

the characteristic of that product, which renders it unreasonably dangerous, proximately causes the

complained of injuries. La.Rev.Stat.Ann. § 9:2800.54(A). A plaintiff must prove not only causation

in fact, but also that the produ ct defect was "the most probable cause" of the injury. B rown v.

Parker-Hannifin Corp., 919 F.2d 308, 311 and n. 9, 312 (5th C ir.1990). Plaintiffs' evidence of

causation does not meet this standard.

Plaint iffs have shown that Feldene can cause hepatitis, although the exact incidenc e is

disputed. Plaintiffs have also shown that Mrs. Gordon took Feldene over a period of several months

prior to her death. What Plaintiffs' evidence fails to do, however, is to show that Feldene was "the

most probable cause" of her death. There is, for example, evidence that Mrs. Gordon reported to one

of her physicians that she had been in contact with a family member infected with hepatitis. There

is no evidence excluding the possibility that this contact caused her illness. Similarly, Plaint iffs have

offered no evidence excluding the possibility that Mrs. Gordon contracted hepatitis C, a form of viralhepatitis unrelated to medication. Some of the treating physicians testified that they believed that this

is the illness that she had, a view shared by Defendant's expert wit ness. Finally, assuming that

decedent's death was caused by drug induced hepatitis, there is in the record no scientific evidence

which would support any expert opinion that Feldene, rather than Chlorzoxazone was the cause of

Mrs. Gordon's hepatitis. In short, Plaintiffs did not offer sufficient evidence from which a reasonable

jury could have concluded that Feldene was the most probable cause of Mrs. Gordon's hepatitis.

Likewise, Plaint iffs' evidence is insufficient to est ablish t hat the warning in the Feldene

package insert was inadequate. To prevail on such a claim, Plaintiffs must demonstrate that "a proper

warning would have changed the decision of the treating physician, i.e., that but for the inadequate

warning, the treating physician would not have used or prescribed the product." W illett v. Baxter

International, Inc., 929 F.2d 1094, 1099 (5th Cir.1991). There is absolutely no evidence in this

record to support that proposi ti on.

B. Limiting Expert Testimony

Plaint iffs complain that the district court improperly restricted the testimony of their expert

witness. We need not determine whether the restriction was error because, if it was, it was harmless.

Plaint iffs' expert, Dr. George, did not purport to testify to the facts on which the Plaint iffs' case was

found lacking: Dr. George did not offer to testify that Feldene was the most probable cause of Mrs.

Gordon's hepatitis, nor did he offer to testify that the treating physician would not have prescribed

Feldene had it included the warning label, which Plaint iffs claim it should have included. Accordingly,

even if Dr. George had been permitted to testify to the extent sought by Plaint iffs, the outcom e of the

case would not have been affected.

We note in passing that Dr. George's testimony would not have survived the test of Daubert

v. Merrell Dow Pharmaceuticals, Inc.,

--- U.S.

----, ----, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469

(1993). Under D aubert

, befo re the district court permits expert scientific testimony, it must

determine "whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist

the trier of fact to understand or determine a fact in issue." Key to this test is whether the expert's

hypothesis can be and has been tested. Id. At the hearing held to evaluate his proffered testimony,Dr. George hypothesized that the combination of Feldene and Chlorzoxazone may have caused Mrs.

Gordon's hepatitis. He admitted, however, that no study of the combined effects of the drugs had

ever been done, and thus his hypothesis lacked an empirical foundation. Neither had it been subjected

to peer review and publication, which Daubert also identifies as key. I d. at ----, 113 S.Ct. at 2797.

III. Suit Against McNeil

We review de novo the district court's grant of summary judgment in favor of McNeil using

the familiar standard of Fe deral Rule o f Civil Procedure 56(c). Under this standard, summary

judgment is appropriate if there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law.

Plaint iffs' case against McNeil was properly dismissed on summary judgment because there

was no genuine i ssue as t o whether Mrs. Gordon was ever exposed to McNeil's product. Mrs.

Gordon's physician prescribed the McNeil drug, but that prescription was filled with a different

medication f

ro m another manufacturer. One witness stated that she had seen a green pill in Mrs.

Gordon's possession but was unable to identify it as Parafon Forte DSC. Another stated that he had

noticed a package at Mrs. Gordon's home resembling the packaging of Parafon Forte DSC but was

unable to definitely identify it or pro duce the package. This evidence was insufficient to create a

material issue that Mrs. Gordon actually used this drug.

IV. Joinder and Remand

Finally, Plaint iffs contend that the district court abused its discretion in denying their motion

to join Mrs. Gordon's treating physicians, non-diverse defendants, and to have the case remanded to

state court. The district court listed a number of reasons for its denial: the claims made against the

physicians were essentially malpractice claims which are different from the claims made against the

drug manufacturers; the physicians were not necessary or indispensable parties under Federal Rule

of Civil Procedure 19; and granting the motion would prejudice the pharmaceutical company

defendants. After considering these reasons, we conclude that the court did not abuse its discretion.

CONCLUSION

Moti on DENIED. Grant of summary judgment and judgment as a matter of law AFFIRMED.