Anderson v. Wyeth LLC

Background

Emily R. Anderson alleged that she took Fen-Phen—fenfluramine or dexfenfluramine combined with phentermine—for about six months in 1996. The opinion states that she was prescribed the drugs by a physician in Ohio, lived in Ohio while using them, and ingested them there. She later developed primary pulmonary hypertension and sued Wyeth LLC and Pfizer Inc., seeking damages.

The complaint asserted seven state-law causes of action: strict liability based on failure to warn, negligence, breach of implied warranty, breach of express warranty, negligent misrepresentation, fraud or fraudulent concealment, and loss of consortium. Jason Anderson asserted the loss-of-consortium claim. The defendants moved to dismiss on several grounds and moved to strike the request for punitive damages.

Choice of Law

Because the case was in federal court based on diversity of citizenship, the court applied New York’s choice-of-law rules. The court found an actual conflict among Ohio, Idaho, New York, and New Jersey law. It concluded that Ohio law governed because the alleged injury-producing conduct occurred there: Emily was prescribed and ingested the drugs in Ohio.

The court held that Ohio’s Products Liability Act provides the exclusive remedies for covered product-liability claims. Under that statute, common-law product-liability claims are replaced by specified statutory claims, including inadequate warning claims.

Ruling on the Motion to Dismiss

The court granted the defendants’ motion to dismiss. It held that the common-law failure-to-warn, negligence, and express-warranty theories were covered by the Ohio statute and had to be pleaded under that statute rather than as common-law claims. The court also held that Ohio’s statute did not recognize the asserted implied-warranty claim and that the fraud and negligent-misrepresentation theories were, as pleaded, failure-to-warn theories that could be pursued only under the Ohio statute.

The court dismissed the complaint without prejudice and granted leave to amend certain claims in a manner complying with the Ohio Products Liability Act. Its conclusion states that Counts I, II, IV, V, and VI could be repleaded under the statute, while also stating that Count II was dismissed with prejudice and without leave to amend. The court dismissed Count VII, Jason Anderson’s loss-of-consortium claim, without prejudice, but allowed amendment only if Ohio law recognizes such a claim in connection with claims under the Ohio statute. The court did not decide that issue because the parties had not briefed it.

The court denied the motion to strike the punitive-damages request as moot because the complaint had been dismissed. It stated that punitive damages could be included in an amended complaint only if Ohio law allowed them and the plaintiffs could plead that the Food and Drug Administration had expressly found fraud by the manufacturer in connection with marketing the drugs.

Disposition

The complaint was dismissed without prejudice and with leave to amend as described in the order. Count II was separately stated to be dismissed with prejudice and without leave to amend. Count VII was dismissed without prejudice, with limited leave to amend. The motion to strike the punitive-damages demand was denied as moot.