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

_____________________



### B ARBARA 

### H ALL AND 

### D ENNIS 

### H ALL



### ,

Plaintiffs-Intervenor DefendantsAppellants/Appellees,

VERSUS



### E LKINS 

### S INN



### , I NC 

### .; W YETH



### ,

Defendants-Intervenor DefendantsAppellees,

VERSUS



### L OUISIANA 

### P ATIENT 

### C OMPENSATION 

### F UND 

### O VERSIGHT 

### B OARD



### ,

Intervenor Plaintiff-Appellant.

____________________

Appeals from the United States District Court

for the Western District of Louisiana



### m 02-CV-684

____________________2

Before S MITH , D E M OSS , and S TEWART

, Circuit Judges.

P ER C URIAM : *

Plaint iffs, 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 Liabilit

y Act (“LPLA) 1 and asserted that

Gentamicin, a drug m a nufactured by Wyeth,

was unreasonably dangerous because an adequate warning of its 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 from recurrent boils on her right arm,

sought treatment from Dr. Kent Seale , who

prescribed injections of Gentamicin, a pow

erful drug that can have serious potential side

effects, especially when taken in large dosages

or for prolonged periods of time. Seale wrote

Hall a pres cript ion 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

Sea le t o discontinue her use of Gentamicin. Since then, she has suffered the numerous side

effects associated with perm anent bilateral vestibular damage, or ot o t oxicity, as a result of

using the drug.

II.

Plaint iffs filed a medical

malpractice claim

against Seale under the Louisiana Medical

Malpracti ce Act. A medical review panel

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

him was settle d for $100,000; the settlement

triggered access to t he PCF. Plaintiffs also

sued the pharmacist; the p art ies also settled,

and the case went to trial ag ainst 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, plaint iffs sued the manufacturers of

Gentamicin in federal court, usi n g diversity

jurisdiction. Plaintiffs charged that defendants

failed to provide adequate warnings for their

drug and t hat t he failure to warn was a legal

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

dismiss the claim for five reasons : (1) The

warni ngs accompanying Gentamicin were cl ear

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

did not read the physician labeling supplied

wit h the product, but acknowledged he was

aware of the risks associated with the drug; (3)

the labeling supplied with Gentamici n was

approved by the Food & Drug Administration;

(4) plaint iffs offer no expert testimony refuting

the adequacy of the warning; and (5) plaint iffs’

claims against Wyeth are p recluded by the

sta t e court judgment. The district court

* Pursuant to 5 TH C IR

. R. 47.5, th e court has

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

circumstances set fort in 5 TH C IR

. R. 47.5.4.

1 L A

. R EV

. S TAT . 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 j udgment should be granted because of the applicabilit y of the “learned in t ermediary doctrine”

and the plaintiffs’ subsequent failure to establish causation.

III.

A.

A motion for s ummary judgment under

Federal Rule of Civil Procedure 56 should be

granted only if there is no genuine issue of material fact and the moving party is enti tled to

judgment as a matter o f law. In determining

whether there is a genuine issue of m ateri al

fact, evidence and inferences must be drawn in

the light most favora ble to the non-moving

party. D aniels v. City of Arlington, Tex.

, 246

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

summary judgment de novo

. M editrust Fin.

Serv. Corp. v. Sterling Chem., Inc.

, 168 F.3d

211, 213 (5th

Cir. 1999).

B.

The district court held that plaint iffs’ claim

against Wyeth was barred by the state litigation. Pursuant to L A

. C IV

. C ODE art. 425, the

co urt maintained that the claim was issueprecluded, and plaint iffs’ failure to join Wyeth

as a party in the first litigation effectively

amounted to a waiver of any claim against the

manufacturers. 4 Plaint iffs argue that the district court erred

in applying art. 425 and that Hall ’s claim

against Wyeth i s of a fundamentally different

nature from the claims asserted in the earlier

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

Th e fact that the causes of action involve

different defendants is irrelev ant, because the

purpos e of article 425 is to encourage plaintiff s t o jo in all possible defendants in a single

litigation and t o prevent relitigation of issues

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

The state jury apportioned 100% of the

fault of Ha ll’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

t he principles behind r

es

judicata

.

Moreo ver, plaintiffs contend the cause of

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

the causes of action against earlier defendants.

Although, however, three independent alleged

faults can be discerned fro m the facts, all of

these alleged faults a rise from the same nucleus of facts and unite to c reat e a single, indivisible harm.

H all’s use of Gentamicin resulted in h e r 3 L A

. C IV

. C ODE 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 res ult o f the doctor’s negligence

or the manufacturer’s inade q uate warnings

represents two separate causes of action rather

than two separate transactions or occurrences.

Plaint iffs’ interpretation tha t 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 requi res a plaintiff to

assert “all cau s es of action arising out of the

transaction or occurrence that is the subject

matter of the litigati o n” (emphasis added).

Just b e cause one cause of action is governed

by the rule s of medical malpractice and another by products’ liabilit y is no r eason 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 ci tes Westerman v. State

Farm M ut. Auto. Ins. Co. , 834 So. 2d 445

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

point. W esterman holds th a t plaint iff’s first

action based in tort barred her from bringing a

second act io n 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 consis tent wi th W esterman

and the proper reading of article 425.

C.

Although it is not necessary to our decision,

w e note that the district court was correct in

its analysis of the learne d intermediary doctrine. On that issue, plaintiffs argue that S tahl

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

Cir. 2002), should be the guiding authority.

Plaint iffs reason that for summary judgment

to be proper, defendants must prove that plaint iff’s doctor “unequivoca lly” testified that

“warning was adequate to inform him or her of

the risks involved” in addition to proving that

the warning contains a “c lear and unambiguous reference to the adverse reactions suffered

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

o ffer no expert testimony to back this cla i m

up, nor do they attempt to refute defendants’

expert testimony or evi d ence to the contrary.

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

the adequacy of the warning, questions of fact

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

read the warnings pr o vided, he could not

truthfully testify as to whether the warnings

were adequate to prevent him from prescribing

the drug to Hall. Additionally, Seale acknowledged his awaren ess 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 involve s a prescription drug.

Under the doctrine, a manufacturer’s duty to

warn the end-user is discharged t o t he physician because of the expertise necessary to understand the warning labels adequately. E asterling v. Cardiac Pacemakers, Inc.

, 1998 WL

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

motio n 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 plaint iff must prove that the manufacturer failed to warning the treating physician of

the dangers associated with the drug and that

this failure wa s bo t h a cause in fact and a

proximate cause of plaint iff’s injury. W illett v.

B axter

, 929 F.2d 1094 (5th Cir. 1 991).5

Under thi s two-prong test, failure to warn

is just one part necessary to find the manufacturer at fault. Plaintiffs never address the seco nd prong of causation, because they ca nnot

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 of the drug independently of

Wyeth’s labels; the r efore, 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

plaint iffs are unable to provide any evidence to

support proximate and legal causation , thei r

claim fails as a matter of law.

AFFIRMED.