Hall, et al v. Elkins Sinn Inc, et al

United States Court of Appeals
Fifth Circuit
F I L E D
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 Defendants-
Appellants/Appellees,
VERSUS
ELKINS SINN, INC.; WYETH,
Defendants-Intervenor Defendants-
Appellees,
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
____________________

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Before SMITH, DEMOSS, and STEWART,
Circuit Judges.
PER CURIAM:*
Plaintiffs, Barbara and Dennis Hall, and in-
tervenor, Louisiana Patient Compensation
Fund Oversight Board (“PCF”), appeal a sum-
mary judgment for defendants, Wyeth Com-
pany, d/b/a Wyeth-Ayerst Laboratories, and
Elkins Sinn, Inc. (“Wyeth”). Plaintiffs’ origi-
nal claim was pursuant to the Louisiana Prod-
ucts Liability Act (“LPLA)1 and asserted that
Gentamicin, a drug manufactured by Wyeth,
was unreasonably dangerous because an ade-
quate warning of its potentially harmful effects
was not provided. For fundamentally the same
reasons expressed in the district court’s Mem-
orandum 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 prescript ion for 21 days, well beyond
the recommended 7-10 day course of treat-
ment. The pharmacist compounded Hall’s risk
by providing her with a 33-day supply.
After taking the drug for 28 days, Hall be-
gan to experience dizziness and was told by
Seale to discontinue her use of Gentamicin.
Since then, she has suffered the numerous side
effects associated with permanent bilateral ves-
tibular 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 appli-
cable 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, plaintiffs sued the manufacturers 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’s injuries. Defen-
dants 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 of the risks associated with the drug; (3)
the labeling supplied with Gentamicin was
approved by the Food & Drug Administration;
(4) plaintiffs offer no expert testimony refuting
the adequacy of the 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 pub-
lished 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).

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granted summary judgment based on defen-
dants’ 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 judg-
ment should be granted because of the applica-
bility of the “learned intermediary doctrine”
and the plaintiffs’ subsequent failure to estab-
lish causation.
III.
A.
A motion for summary judgment under
Federal Rule of Civil Procedure 56 should be
granted only if there is no genuine issue of ma-
terial 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 litiga-
tion. Pursuant to LA. CIV. CODE art. 425, the
court maintained that the claim was issue-
precluded, 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 in-
volves different parties and derives from dif-
ferent circumstances. This argument is with-
out merit.
The fact that the causes of action involve
different defendants is irrelevant, because the
purpose of article 425 is to encourage plain-
tiffs to join all possible defendants in a single
litigation and to prevent relitigation of issues
rather than claims. The purpose of issue pre-
clusion is to prevent relitigation of issues al-
ready dealt with by the courts, so as to maxi-
mize judicial economy and minimize conflict-
ing judgments.
The state jury apportioned 100% of the
fault of Hall’s injuries. To allow the claim
against Wyeth to proceed would require a re-
apportionment of fault and a relitigation of the
same issues of causation already dealt with in
the first suit. This result would be fundamen-
tally at odds with the principles behind res
judicata.
Moreover, plaintiffs contend the cause of
action against Wyeth derives from a set of cir-
cumstances 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 nu-
cleus of facts and unite to creat e a single, in-
divisible 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.”

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developing ototoxicity. The question whether
this was the result of the doctor’s negligence
or the manufacturer’s inadequate warnings
represents two separate causes of action rather
than two separate transactions or occurrences.
Plaintiffs’ interpretation that article 425 asks
the court to examine whether “the same trans-
action 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 an-
other 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). Requir-
ing 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 necessary to our decision,
we note that the district court was correct in
its analysis of the learned intermediary doc-
trine. On that issue, plaintiffs argue that Stahl
v. Novartis Pharms. Corp., 283 F.3d 254 (5th
Cir. 2002), should be the guiding authority.
Plaintiffs reason that for summary judgment
to be proper, defendants must prove that plain-
tiff’s doctor “unequivocally” testified that
“warning was adequate to inform him or her of
the risks involved” in addition to proving that
the warning contains a “clear and unambigu-
ous reference to the adverse reactions suffered
by the Plaintiff.” Id. at 267. Although plain-
tiffs 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 af-
fidavit does not unequivocally testify regarding
the adequacy of the warning, questions of fact
remain that make summary judgment im-
proper. Because, however, Seale failed to
read the warnings provided, he could not
truthfully testify as to whether the warnings
were adequate to prevent him from prescribing
the drug to Hall. Additionally, Seale acknowl-
edged 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 physi-
cian because of the expertise necessary to un-
derstand the warning labels adequately. Eas-
terling 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 plaintiff must prove that the manufac-
turer 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’s injury. Willett v.
Baxter, 929 F.2d 1094 (5th Cir. 1991).

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Under this two-prong test, failure to warn
is just one part necessary to find the manufac-
turer at fault. Plaintiffs never address the sec-
ond 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 of the 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 as-
sume, arguendo, that the warning was inade-
quate, 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.

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