Norma Nicely v. Wyeth, Inc. , 2014 Mo. App. LEXIS 891 ( 2014 )

In the Missouri Court of Appeals
Eastern District
DIVISION III
NORMA NICELY, ) No. ED100313
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
vs. )
) Honorable Richard C. Bresnahan
WYETH, INC., et al. )
)
Respondents. ) FILED: August 26, 2014
Introduction
This appeal arises out of Appellant Norma Nicely’s (“Nicely”) tort action against brand-
name and generic manufacturers of the prescription drug metoclopramide. Nicely was diagnosed
with tardive dyskinesia following her prolonged use of metoclopramide. Although Nicely
ingested only the generic form of the drug, she seeks damages from all parties responsible for
disseminating information about the risks associated with long-term use of brand-name Reglan
and generic metoclopramide. Nicely generally alleges that the manufacturers and sellers of the
generic metoclopramide she ingested (collectively “Generic Defendants”)1 failed to reasonably
and adequately warn of the risks and dangers associated with its long-term use. Nicely similarly
1
PLIVA, Inc., Barr Pharmceuticals, LLC, and Teva Pharmaceuticals USA are the manufacturers of generic
metoclopramide sued by Nicely in this action. Because Nicely voluntarily dismissed her action against Teva
Pharmaceuticals USA on July 16, 2012, it is not a party to this appeal.
seeks to hold the manufacturers and sellers of brand-name Reglan (collectively “Brand
Defendants”)2 liable for her injuries as a result of their failure to reasonably and adequately warn
of the risks and dangers associated with long-term use of metoclopramide. Lastly, Nicely seeks
damages for her injuries from Wolters Kluwer Health, Inc. and Wolters Kluwer United States
Corporation, Inc. (collectively “WKH”), which Nicely alleges disseminated prescription drug
information about metoclopramide to pharmacists, physicians, and their patients.3
Factual and Procedural Background
Around November 2006, Nicely’s physician prescribed her a regimen of 30-40mg of
Reglan/metoclopramide per day to treat gastroparesis. From November 2006 through December
2007, Nicely ingested generic metoclopramide manufactured by the Generic Defendants. In
December 2007, Nicely sought treatment for weakness, clumsiness, and intermittent tremors. At
that time, Nicely discontinued her metoclopramide use. Nicely’s symptoms continued, and in
January 2008 she was diagnosed with tardive dyskinesia secondary to Reglan/metoclopramide.
In January 2010, Nicely received a more specific diagnosis of oral dyskinesia secondary to
Reglan/metoclopramide. Oral dyskinesia is characterized by involuntary, repeated, rhythmic
purposeless movements of the muscles of the lower face, lips, and tongue.
On June 26, 2012, Nicely filed a 12-count amended petition against Defendants.4 The
counts alleged were as follows: Count I: negligence, negligent misrepresentation, and negligent
supply of information for the guidance of others against the Brand Defendants; Count II:
2
Wyeth LLC, Wyeth Pharmaceuticals Inc., Schwarz Pharma Inc. n/k/a UCB Inc., and Alaven Pharmaceuticals, LLC
are the manufacturers of brand-name Reglan sued by Nicely in this action.
3
All defendants will be referred to collectively as “Defendants.”
4
Nicely initially filed this action jointly with several other plaintiffs in the Circuit Court of the City of St. Louis.
The court severed the claims, and Nicely’s case was eventually transferred to the Circuit Court of St. Louis County.
There, pursuant to local practice, the court consolidated Nicely’s case with other Reglan/metoclopramide cases for
pre-trial matters before the Honorable Richard C. Bresnahan. Due to this consolidation, some of the filings in this
case were made on behalf of multiple defendants not individually sued by Nicely. We will only address claims
relevant to the eight defendants named in Nicely’s Second Amended Petition.
2
negligence, negligent misrepresentation, and negligent supply of information for the guidance of
others against the Generic Defendants; Count III: breach of warranty against the Generic
Defendants; Count IV: misrepresentation and fraud against the Generic Defendants; Count V:
misrepresentation and fraud against the Brand Defendants; Count VI: negligence against First
Databank; Count VII: strict product liability against the Generic and Brand Defendants; Count
VIII: violation of the Missouri Merchandising Practices Act and/or Kentucky Consumer
Protection Act against all Defendants; Count XI: punitive damages against all Defendants; and
Count XII: damages against all Defendants.
On July 10, 2012, the Generic Defendants moved to dismiss Nicely’s claims against them
for lack of jurisdiction or, in the alternative, for failure to state a claim.5 The Generic Defendants
argued that under PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011), all state law failure-to-warn
claims against generic pharmaceutical manufacturers are preempted by federal law. The Generic
Defendants asserted that no matter how titled, all of Nicely’s claims were substantively the same
failure-to-warn claims that the Supreme Court found preempted by the Federal Food, Drug, and
Cosmetic Act (“FDCA”) in Mensing and, therefore, must be dismissed with prejudice. The trial
court agreed and dismissed all of Nicely’s claims against the Generic Defendants.
On July 24, 2012, WKH also moved to dismiss Nicely’s claims against it alleging, inter
alia, that Nicely’s claims were barred by the statute of limitations. The trial court found that
under Kentucky law, a one-year statute of limitations applied to Nicely’s claims against WKH.
The trial court further found that under Kentucky’s discovery rule, the statute of limitations
commenced in January 2008, when Nicely was diagnosed with tardive dyskinesia secondary to
Reglan/metoclopramide. Because Nicely did not file her original petition against the Defendants
5
Whether the trial court had personal jurisdiction over the Generic Defendants is not at issue in this appeal, and thus
will not be discussed.
3
until February 25, 2010, the trial court concluded that her claims against WKH were barred by
the statute of limitations. Therefore, the trial court granted WKH’s motion to dismiss.
After initial discovery revealed that Nicely ingested only generic metoclopramide and not
brand-name Reglan, the Brand Defendants moved for summary judgment on all of Nicely’s
claims against them. In their motion filed July 11, 2012, the Brand Defendants argued that all of
Nicely’s claims were product liability claims governed by the Kentucky Products Liability Act
(“KPLA”),6 and under the KPLA, a manufacturer cannot be held liable for harm caused by a
product it did not manufacture or sell. Because Nicely conceded she did not ingest any product
manufactured or sold by the Brand Defendants, the Brand Defendants asserted they owed her no
duty and thus were entitled to judgment as a matter of law. The trial court agreed with the Brand
Defendants that the KPLA applied to all of Nicely’s claims, and further agreed that the Brand
Defendants owed her no duty of care. Accordingly, the trial court granted the Brand Defendant’s
motion for summary judgment and entered judgment in their favor.
Nicely now appeals the judgments of the trial court dismissing her claims against the
Generic Defendants and WKH and the entry of summary judgment in favor of the Brand
Defendants.
Discussion
This appeal was submitted on records, briefs, and oral argument nearly identical to those
presented to this Court in Franzman v. Wyeth, ED 100312, __ S.W.3d __ (Mo. App. E.D. 2014).
Nicely appeals from a nearly identical judgment, presents the same points on appeal, and relies
on the same arguments as those raised by the parties in Franzman. The minor factual differences
between Nicely’s case and Franzman’s case do not affect our analysis of the identical points on
6
It is not disputed that under Missouri’s choice of law principles, Kentucky law applies to Plaintiff’s claims.
4