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Dick v. American Home Products Corp.

June 2, 2009


The opinion of the court was delivered by: (Chief Judge Kane)


Pending before the Court is Defendant Wyeth's motion for summary judgment on Plaintiff's claims.*fn1 Upon due consideration, the motion will be granted because Plaintiff has failed to adduce sufficient evidence to support her claims that one of Defendant's products -- specifically, a prescription arthritis medication allegedly contaminated with a selective beta blocker -- caused her late husband to suffer adverse health effects and premature death. The Court's reasoning is discussed below.


Charles M. Dick, a long-time banker who resided in Perry County, Pennsylvania, died at approximately 3:00 a.m. on September 13, 2000, when he was 63 years old. No autopsy was performed on Mr. Dick and the death certificate issued on September 25, 2000, identified coronary artery disease as the cause of death.

During his lifetime, Mr. Dick suffered from several illnesses or ailments. Mr. Dick was diagnosed with rheumatoid arthritis in 1973. Approximately 20 years later, Mr. Dick was also diagnosed with Parkinson's disease, and treated for this condition with family doctors and specialists. In addition to his arthritis and Parkinson's disease, Mr. Dick suffered a significant anterior wall myocardial infarction in 1992, which permanently impaired his heart function. In 1999, Mr. Dick suffered a subsequent sub-endocardial infarction. An x-ray taken shortly before his death revealed that Mr. Dick was also suffering from mild emphysema, and his medical file notes that he had a history of sleep apnea.

From his diagnosis in 1973 until his death, Mr. Dick treated for his rheumatoid arthritis with Dr. Alan D. Roumm of Camp Hill, Pennsylvania. As part of this treatment, Dr. Roumm prescribed the drug etodolac and Mr. Dick took this medication for a number of years prior to his death. Etodolac is the generic form of the brand-name drug Lodine, and is a non-steroidal anti-inflammatory drug used to relieve pain, tenderness, swelling and stiffness that is caused by rheumatoid arthritis. (Compl.¶ 3; Def. Statement of Material Facts, ¶ 4.) Records show that Merck-Medco, a mail-order pharmacy, filled a prescription for etodolac 300 mg capsules for Mr. Dick on or about July 19, 2000. (Def. Statement of Material Facts ¶ 6 and Ex. 3.)

Approximately three weeks after Mr. Dick's death, on October 5, 2000, ESI Lederle -- a generic drug maker owned by Wyeth at that time -- issued a notice informing customers that it was voluntarily recalling Lot Number 9991052 of etodolac 300 mg capsules after the company discovered that some capsules from the lot contained variable and unknown amounts of acebutolol, a selective beta blocker that can be used to lower heart rate or blood pressure in order to treat hypertension, congestive heart failure, and ventricular arrhythmia. The recall letter, which was sent to Dr. Roumm, stated that Lot No. 9991052 began being manufactured in September 1999 and product from this lot was delivered to wholesalers, health care professionals, and pharmacies between October 18, 1999, and August 31, 2000.

On May 31, 2005, Mr. Dick's widow and the trustee of his estate, Virginia C. Dick, sued Wyeth in the Perry County Court of Common Pleas, asserting claims for products liability and breach of warranty predicated on her allegations that Mr. Dick consumed acebutolol-contaminated etodolac capsules and that the contaminant caused his health to worsen and ultimately led to his death. In particular, Plaintiff alleges that Mr. Dick suffered from hypotension, or low blood pressure, and that Mr. Dick began experiencing episodic shortness of breath and fatigue during July, August, and September 2000, and that these episodes increased in frequency and severity over the time that Mr. Dick ingested etodolac in 2000. Plaintiff avers that Mr. Dick's alleged ingestion of Defendant's acebutolol-contaminated etodolac capsules caused him to suffer these adverse health conditions and eventually caused his death.

On November 16, 2005, Wyeth removed the action to this Court pursuant to 28 U.S.C. § 1441 on the basis of diversity jurisdiction. Following discovery, Wyeth moved for summary judgment on all of Plaintiff's claims and the Court subsequently stayed the action pending resolution of Wyeth's dispositive motion.


Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56; White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). A factual dispute is material if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id. at 249. The evidence presented must be viewed in the light most favorable to the non-moving party. Id. The inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52.

The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, the nonmoving party may not simply sit back and rest on the allegations in the complaint. Instead, the nonmoving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotations omitted). The evidence must be viewed in the light most favorable to the non-movant. See Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322.

With respect to the sufficiency of the evidence that the nonmoving party must provide, a court should grant summary judgment where the non-movant's evidence is merely colorable, conclusory or speculative. Anderson, 477 U.S. at 249-50. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material ...

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