Dietz v. Smithkline Beecham Corp.

                                                                    [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                               No. 09-10167                  MAR 5, 2010
                         ________________________             JOHN LEY
                                                                CLERK
                     D. C. Docket No. 07-00077-CV-RLV4

DONNA LADEAN DIETZ,
individually, and as Surviving Spouse
of Garrison David Dietz,
deceased, and as Temporary
Administratrix of the Estate of
Garrison David Dietz, Deceased,

                                                             Plaintiff-Appellant,

                                    versus

SMITHKLINE BEECHAM CORP.
d.b.a. Glaxo SmithKline,

                                                           Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                                (March 5, 2010)
Before TJOFLAT and BARKETT, Circuit Judges, and BARZILAY,* Judge.

BARZILAY, Judge:

       Plaintiff-Appellant Donna Dietz (“Appellant”) appeals the district court’s

grant of summary judgment for Defendant-Appellee Smithkline Beecham Corp.

(“SBC”) in her wrongful death suit, which arose out of her husband’s suicide

while taking Paxil, a drug manufactured by SBC. For the reasons stated below,

the district court’s decision is affirmed.

                         I. Background & Procedural History

       On April 3, 2002, the 33 year-old Garrison David Dietz (“Dietz”),

Appellant’s late husband, met with his family practitioner, James Zuppa, M.D.

Dietz presented with anxiety, depression, insomnia, and stress, but expressed that

he had no suicidal ideation and disclosed no history of psychological illness. R.E.

Doc. 43 Ex. B at 56:5-19, 61:14-23. Dr. Zuppa diagnosed Dietz with major

depression and offered him hospitalization for psychiatric treatment, which Dietz

declined. R.E. Doc. 43 at 62:2-5, 66:3-4. Consequently, Dr. Zuppa prescribed

him Paxil, a selective serotonin reuptake inhibitor (“SSRI”) antidepressant

manufactured by SBC, and Ambien, a sleep aid. R.E. Doc. 43 at 62:11. He then



       *
        Honorable Judith M. Barzilay, Judge, United States Court of International Trade, sitting
by designation.

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instructed Dietz to schedule a follow-up visit in three weeks and to contact him in

the event of an “acute crisis.” R.E. Doc. 43 at 65:19-22, 66:4-5. He also referred

him to a nearby psychologist. R.E. Doc. 43 at 62:25-63:2. Eight days after having

filled and begun his Paxil prescription, Dietz committed suicide by throwing

himself in front of a train.

       Appellant filed a diversity suit in the Northern District of Georgia on April

24, 2007, alleging that under Georgia law SBC was (1) strictly liable as “a

manufacturer of a defective and unreasonably dangerous product, and for

marketing defects and misrepresentations, which proximately caused Gary Dietz’s

injuries and death,” (2) “unreasonable, or negligent, and was a proximate cause of

Garry Deitz’s injuries and death,” and (3) “liable under a breach of warranty.”

R.E. Doc. 1 at ¶¶ 10-12. SBC filed two motions for summary judgment, the first

of which raised Georgia’s learned intermediary doctrine as an affirmative defense

and is at issue in the present opinion.1

       During discovery, the parties deposed Dietz’s physician, Dr. Zuppa. He

testified that he considered the potential risks and benefits of prescribing Paxil to

Dietz when he wrote the prescription in 2002. R.E. Doc. 75 (Dietz v. Smithkline



       1
        The second motion claimed that Appellant’s claims are preempted by federal law.
Because the district court did not reach this issue, this Court need not discuss it.

                                              3
Beecham Corp., No. 4:07-CV-0077 (N.D. Ga. Dec. 9, 2008) (order granting

summary judgment)) at 2. He also acknowledged that subsequent studies have

pointed to a “slight[ly] increase[d]” risk of suicide among children and adolescents

taking SSRIs, but stated that he still does not usually explain the increased risks to

adult patients whom he considers stable. R.E. Doc. 75 at 3 (brackets in original).

Moreover, Dr. Zuppa testified that, even in retrospect, he agreed with his decision

to treat Dietz with Paxil and would do so again today under the same

circumstances:

Q. And you testified that you still agree with your decision to prescribe Paxil for

Mr. Dietz, right?

A [Dr. Zuppa]. Yes.

R.E. Doc. 43 Ex. B at 80:15-18; accord R.E. Doc. 43 Ex. B at 42:14-23.

      Q. (By Mr. Norden) The current prescribing information for Paxil. I
      want to give you an opportunity to read exactly what the black box
      says. . . .
      A [Dr. Zuppa]. Okay.
      ....
      Q. . . . . Based after having read this [new, updated] 2008 prescribing
      information for Paxil, is there anything in that that makes you believe
      that if you had read that same information in April of 2002 you would
      have decided not to prescribe Paxil for Gary Dietz?
      A. No.
      Q. So sitting here today, . . . knowing Gary Dietz ultimately took his
      own life, do you still consider your decision to prescribe Paxil for him
      on April 3rd, 2002, to be an appropriate decision?

                                          4
        A. I felt the risk of not treating him was worse. So I would have to
        make a decision, and I felt like I needed to prescribe him Paxil.

R.E. Doc. 43 Ex. B at 112:4-113:7; see also R.E. Doc. 55 Exs. 9, 12 (letters from

SBC to doctors informing them of increased risk of suicide for adults under age of

25 taking SSRIs).

                      II. Jurisdiction & Standard of Review

        The Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

The court reviews a district court’s grant of summary judgment de novo. Int’l

Stamp Art, Inc. v. USPS, 456 F.3d 1270, 1273 (11th Cir. 2006) (citation omitted).

The court will deem summary judgment appropriate “if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c)(2). Once the movant adequately

supports its motion, the burden shifts to the nonmoving party to show that specific

facts exist that raise a genuine issue for trial. Int’l Stamp Art, Inc., 456 F.3d at

1274.

                     III. The Learned Intermediary Doctrine

        In standard products liability cases premised on a failure to warn, Georgia

law insists that a plaintiff show that the defendant had a duty to warn, that the



                                           5
defendant breached that duty, and that the breach proximately caused the

plaintiff’s injury. Wheat v. Sofamor, S.N.C., 46 F. Supp. 2d 1351, 1362 (N.D. Ga.

1999) (holding that proximate cause is necessary element of plaintiff’s case

whether proceeding under strict liability or negligence theory). Within the context

of prescription drugs, however, Georgia employs the learned intermediary

doctrine, which alters the general rule that imposes liability on a manufacturer for

failing to warn an end user of the known risks or hazards of its products. Id. at

1363. According to the doctrine, the manufacturer of

      a prescription drug [manufacturer] . . . does not have a duty to warn
      the patient of the dangers involved with the product, but instead has a
      duty to warn the patient’s doctor, who acts as a learned intermediary
      between the patient and the manufacturer. The rationale for the
      doctrine is that the treating physician is in a better position to warn
      the patient than the manufacturer, in that the decision to employ
      prescription medication . . . involves professional assessment of
      medical risks in light of the physician’s knowledge of a patient’s
      particular need and susceptibilities.

McCombs v. Synthes (U.S.A.), 587 S.E.2d 594, 594 (Ga. 2003) (footnotes &

quotation marks omitted); accord Ellis v. C.R. Bard, Inc., 311 F.3d 1272, 1279-81

(11th Cir. 2002) (per curiam); see Wheat, 46 F. Supp. 2d at 1363; Bryant v.

Hoffmann-La Roche, Inc., 585 S.E.2d 723, 730 (Ga. Ct. App. 2003). In most

cases, a court begins its inquiry under this doctrine by determining whether the

manufacturer provided the learned intermediary with an adequate warning. Wheat,

                                          6
46 F. Supp. 2d at 1363 (citation omitted). If the warning was adequate, the inquiry

ends, and the plaintiff cannot recover. See Singleton v. Airco, Inc., 314 S.E.2d

680, 682 (Ga. Ct. App. 1984). If the warning is inadequate, or merely presumed to

be, the plaintiff must demonstrate that the deficient warning proximately caused

the alleged injury to prevail. See Wheat, 46 F. Supp. 2d at 1363. Therefore, in

cases where “a learned intermediary has actual knowledge of the substance of the

alleged warning and would have taken the same course of action even with the

information the plaintiff contends should have been provided, courts typically

conclude that . . . the causal link is broken and the plaintiff cannot recover.” Ellis,

311 F.3d at 1283 n.8 (quoting Wheat, 46 F. Supp. 2d at 1363) (quotation marks

omitted).2

                                      IV. Discussion

       Appellant cannot demonstrate that SBC’s alleged failure to warn Dr. Zuppa

about increased suicide risks associated with Paxil proximately caused Dietz to

commit suicide. The doctor provided explicit, uncontroverted testimony that, even

when provided with the most current research and FDA mandated warnings, he

       2
         Georgia’s long-recognized, unwavering use of the learned intermediary doctrine has cast
no “substantial doubt” on the doctrine’s continued validity under Georgia law. The court
therefore denies Appellant’s request to certify to the Georgia Supreme Court the question on
whether Georgia law required SBC to warn Dietz directly about the risks associated with taking
Paxil. See Jackson-Shaw Co. v. Jacksonville Aviation Auth., 508 F.3d 653, 654 n.2 (11th Cir.
2007) (quotation marks omitted).

                                               7
still would have prescribed Paxil for Dietz’s depression. Pursuant to Georgia’s

learned intermediary doctrine, this assertion severs any potential chain of

causation through which Appellant could seek relief, and Appellant’s claims thus

fail.3

                                      VI. Conclusion

         The district court’s grant of summary judgment for SBC is affirmed.

         AFFIRMED




         3
         At oral argument, Appellant’s attorney asked the court to consider whether a stronger
warning from SBC would have affected Dr. Zuppa’s prescribing practice, not simply whether he
would have prescribed Dietz the drug, the assumption being that had Dietz or his family
members received the current information on Paxil’s side effects, they would have taken actions
to prevent his suicide. As a thorough examination of the record reveals no evidence to support
this argument, Appellant’s claim cannot survive summary judgment. See Int’l Stamp Art, Inc.,
456 F.3d at 1274.

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