United States Court of Appeals

Fifth Circuit

FILED

June 22, 2004

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_____________________

No. 03-31030

Summary Calendar

_____________________

BARBARA HALL AND DENNIS HALL,

Plaintiffs-Intervenor DefendantsAppellants/Appellees,

VERSUS

ELKINS SINN, INC.; WYETH,

Defendants-Intervenor DefendantsAppellees,

VERSUS

LOUISIANA PATIENT COMPENSATION FUND OVERSIGHT BOARD,

Intervenor Plaintiff-Appellant.

____________________

Appeals from the United States District Court

for the Western District of Louisiana

m 02-CV-684

____________________
2

Before SMITH, DEMOSS, and STEWART,

Circuit Judges.

PER CURIAM:

*

Plaintiffs, Barbara and Dennis Hall, and intervenor, Louisiana Patient Compensation

Fund Oversight Board (“PCF”), appeal a summary judgment for defendants, Wyeth Company, d/b/a Wyeth-Ayerst Laboratories, and

Elkins Sinn, Inc. (“Wyeth”). Plaintiffs’ original claim was pursuant to the Louisiana Products Liability Act (“LPLA)1

and asserted that

Gentamicin, a drug manufactured by Wyeth,

was unreasonably dangerous because an adequate warning ofits potentially harmful effects

was not provided. For fundamentally the same

reasons expressed in the district court’s Memorandum Ruling and Order, we affirm.

I.

The facts are not in dispute. Barbara Hall,

suffering fromrecurrent boils on her right arm,

sought treatment from Dr. Kent Seale, who

prescribed injections of Gentamicin, a powerful drug that can have serious potential side

effects, especially when taken in large dosages

or for prolonged periods of time. Seale wrote

Hall a prescription for 21 days, well beyond

the recommended 7-10 day course of treatment. The pharmacist compounded Hall’s risk

by providing her with a 33-day supply. 

After taking the drug for 28 days, Hall began to experience dizziness and was told by

Seale to discontinue her use of Gentamicin.

Since then, she hassuffered the numerousside

effects associatedwithpermanent bilateral vestibular damage, or ototoxicity, as a result of

using the drug. 

II.

Plaintiffs filed a medical malpractice claim

against Seale under the Louisiana Medical

Malpractice Act. A medical review panel

found that Seale had deviated from the applicable standard of care, and the claim against

him was settled for $100,000; the settlement

triggered access to the PCF. Plaintiffs also

sued the pharmacist; the parties also settled,

and the case went to trial against the PCF.

The jury returned a verdict finding Seale 85%

liable, the pharmacist 10%, and Hall 5%. The

state appellate courts affirmed.2

After bringing the above-described case in

state court, plaintiffssued themanufacturers of

Gentamicin in federal court, using diversity

jurisdiction. Plaintiffs charged that defendants

failed to provide adequate warnings for their

drug and that the failure to warn was a legal

and proximate cause of Hall’sinjuries. Defendants sought summary judgment, asking to

dismiss the claim for five reasons: (1) The

warnings accompanying Gentamicin were clear

and unambiguous as a matter of law; (2) Seale

did not read the physician labeling supplied

with the product, but acknowledged he was

aware ofthe risks associated with the drug;(3)

the labeling supplied with Gentamicin was

approved bythe Food & Drug Administration;

(4) plaintiffsoffer no expert testimony refuting

the adequacy ofthe warning; and (5) plaintiffs’

claims against Wyeth are precluded by the

state court judgment. The district court * Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be published and is not precedent except under the limited

circumstances set fort in 5TH CIR. R. 47.5.4.

1

 LA. REV. STAT. art. 9:2800.57. 

2

See Hall v. Brookshire Bros., Ltd., 831 So. 2d

1010 (La. App. 3d Cir. 2002); Hall v. Brookshire

Bros., Ltd., 848 So. 2d 559 (La. 2003).
3

granted summary judgment based on defendants’ final assertion that the claim was barred

under issue preclusion, a concept that had been

adopted in 1991 by the Louisiana legislature.3

The court also noted that, putting aside any

question of issue preclusion, summary judgmentshould be granted because ofthe applicability of the “learned intermediary doctrine”

and the plaintiffs’ subsequent failure to establish causation. 

III.

A.

A motion for summary judgment under

Federal Rule of Civil Procedure 56 should be

granted only ifthere is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. In determining

whether there is a genuine issue of material

fact, evidence and inferences must be drawn in

the light most favorable to the non-moving

party. Daniels v. City of Arlington, Tex., 246

F.3d 500, 502 (5th Cir. 2001). We review a

summary judgment de novo. Meditrust Fin.

Serv. Corp. v. Sterling Chem., Inc., 168 F.3d

211, 213 (5th Cir. 1999).

B.

The district court held that plaintiffs’ claim

against Wyeth was barred by the state litigation. Pursuant to LA. CIV. CODE art. 425, the

court maintained that the claim was issueprecluded, and plaintiffs’ failure to join Wyeth

as a party in the first litigation effectively

amounted to a waiver of any claim against the

manufacturers.4

Plaintiffs argue that the district court erred

in applying art. 425 and that Hall’s claim

against Wyeth is of a fundamentally different

nature from the claims asserted in the earlier

litigation, because the new cause of action involves different parties and derives from different circumstances. This argument is without merit.

The fact that the causes of action involve

different defendants is irrelevant, because the

purpose of article 425 is to encourage plaintiffs to join all possible defendants in a single

litigation and to prevent relitigation of issues

rather than claims. The purpose of issue preclusion is to prevent relitigation of issues already dealt with by the courts, so as to maximize judicial economy and minimize conflicting judgments. 

The state jury apportioned 100% of the

fault of Hall’s injuries. To allow the claim

against Wyeth to proceed would require a reapportionment of fault and a relitigation of the

same issues of causation already dealt with in

the first suit. This result would be fundamentally at odds with the principles behind res

judicata.

Moreover, plaintiffs contend the cause of

action against Wyeth derivesfrom a set of circumstances different from those underlying

the causes of action against earlier defendants.

Although, however, three independent alleged

faults can be discerned from the facts, all of

these alleged faults arise from the same nucleus of facts and unite to create a single, indivisible harm. 

Hall’s use of Gentamicin resulted in her

3

 LA. CIV. CODE art. 425. 

4

 The relevant section of art. 425 states that “a

party shall assert all causes of action arising out of

the transaction or occurrence that is the subject

(continued...)

4

(...continued)

matter of the litigation.”
4

developing ototoxicity. The question whether

this was the result of the doctor’s negligence

or the manufacturer’s inadequate warnings

representstwo separate causes of action rather

than two separate transactions or occurrences.

Plaintiffs’ interpretation that article 425 asks

the court to examine whether “the same transaction or same cause of action is asserted in

the second suit” is a blatant misreading of the

statute, which instead requires a plaintiff to

assert “all causes of action arising out of the

transaction or occurrence that is the subject

matter of the litigation” (emphasis added).

Just because one cause of action is governed

by the rules of medical malpractice and another by products’ liability is no reason to

allow for a separation of the claims when they

involve the same facts and the same questions

of fault and causation.

The district court cites Westerman v. State

Farm Mut. Auto. Ins. Co., 834 So. 2d 445

(La. App. 1st Cir. 2002), to illustrate this

point. Westerman holds that plaintiff’s first

action based in tort barred her from bringing a

second action based in contract, because the

two causes of action arose from the same

occurrence (an automobile accident). Requiring Hall to have joined Wyeth and the earlier

defendants in the same suit or lose her claim

against Wyeth is consistent with Westerman

and the proper reading of article 425.

C.

Although it is not necessaryto our decision,

we note that the district court was correct in

its analysis of the learned intermediary doctrine. On that issue, plaintiffs argue that Stahl

v. Novartis Pharms. Corp., 283 F.3d 254 (5th

Cir. 2002), should be the guiding authority. 

Plaintiffsreasonthatforsummaryjudgment

to be proper, defendantsmust prove that plaintiff’s doctor “unequivocally” testified that

“warning was adequate to informhimor her of

the risks involved” in addition to proving that

the warning contains a “clear and unambiguousreference to the adverse reactionssuffered

by the Plaintiff.” Id. at 267. Although plaintiffs maintain that the warning is lacking, they

offer no expert testimony to back this claim

up, nor do they attempt to refute defendants’

expert testimony or evidence to the contrary.

Plaintiffs also aver that because Seale’s affidavit does not unequivocally testify regarding

the adequacy of the warning, questions of fact

remain that make summary judgment improper. Because, however, Seale failed to

read the warnings provided, he could not

truthfully testify as to whether the warnings

were adequate to prevent himfromprescribing

the drug to Hall. Additionally, Seale acknowledged his awareness of the risks anyway,

further making Stahl an inappropriate guide in

this case. 

Contrary to the plaintiffs’ argument, the

“learned intermediary doctrine” applies in this

case, because it involves a prescription drug.

Under the doctrine, a manufacturer’s duty to

warn the end-user is discharged to the physician because of the expertise necessary to understand the warning labels adequately. Easterling v. Cardiac Pacemakers, Inc., 1998 WL

50021, at *3 (E.D. La. Feb. 6, 1998) (denying

motion for reconsideration); Reyes v. Wyeth

Labs., 498 F.2d 1264, 1276 (5th Cir. 1974).

To prevail on a failure to warn case under the

LPLA, a plaintiffmust prove that the manufacturer failed to warning the treating physician of

the dangers associated with the drug and that

this failure was both a cause in fact and a

proximate cause of plaintiff’sinjury. Willett v.

Baxter, 929 F.2d 1094 (5th Cir. 1991).
5

Under this two-prong test, failure to warn

is just one part necessary to find the manufacturer at fault. Plaintiffs never address the second prong of causation, because they cannot

offer any evidence to support a jury finding in

their favor. Seale’s affidavit acknowledges

that he never read the warning and that he was

aware of the risks ofthe drug independently of

Wyeth’s labels; therefore, Wyeth’s warning

(adequate or inadequate) played no role in the

events leading to Hall’s injury. Even if we assume, arguendo, that the warning was inadequate, plaintiffs would be unable to show that

a proper warning would have changed Seale’s

decision to prescribe Gentamicin. Because

plaintiffs are unable to provide any evidence to

support proximate and legal causation, their

claim fails as a matter of law.

AFFIRMED.