The opinion of the court was delivered by: David Stewart Cercone United States District Judge
Dale Aaron, Plaintiff and Personal Representative of the Estate of Randy Aaron ("Plaintiff" or "D. Aaron"), filed a five (5) count complaint against Defendant Wyeth alleging causes of action under theories of: (1) strict liability*fn1; (2) negligence; (3) breach of warranty; (4) wrongful death; as well as (5) a cause of action under the Pennsylvania Survival Statute, 42 PA. CONS. STAT. ANN. § 8302. Wyeth has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and in support of its motion filed a memorandum of law and a concise statement of undisputed material facts. Plaintiff has responded and the motion is now before the Court.
The Local Rules of the United States District Court for the Western District of Pennsylvania require that Plaintiff file responsive "concise statement which responds to each numbered paragraph in the moving party's Concise Statement." See LR 56.1(C)(1). Material facts set forth in a moving party's concise statement of material facts will be deemed admitted for the purpose of deciding the motion for summary judgment "unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." See LR 56.1(E).
Plaintiff has failed to file a response to Wyeth's concise statement of undisputed material facts. The material facts set forth in Wyeth's concise statement of undisputed material facts, therefore, are deemed admitted for the purpose of this motion for summary judgment.
II. STATEMENT OF THE CASE
In the summer of 2005, Randy Aaron ("Aaron"), thirty-six (36) years of age, began exhibiting signs of depression. Wyeth Concise Statement of Undisputed Facts ("Wyeth CSUF") ¶¶ 5, 6 & 7. Aaron's supervisor at the Pennsylvania Department of Transportation suggested that he seek help through the Commonwealth's employee assistance program. Wyeth CSUF ¶ 8. Aaron took advantage of the Commonwealth's program and made an appointment to see Joseph Perry, Ph.D., a licensed counseling psychologist. Wyeth CSUF ¶ 9.
During his appointment on July 27, 2005, Aaron told Dr. Perry, inter alia, that: (1) he had suffered from anxiety for several years; (2) more recently, he had been feeling depressed on a daily basis; (3) he believed his employer was "bugging" his home; and (4) three to four days per week, he would consume six to seven beers at a sitting. Wyeth CSUF ¶¶ 9, 10 & 11. Dr. Perry diagnosed Aaron as suffering from major Depressive Disorder, Generalized Anxiety Disorder, Panic Disorder and Delusional Disorder, and gauged Aaron's mental illness as "moderate to severe." Wyeth CSUF ¶ 12. Though Dr. Perry planned to continue counseling Aaron, he recommended that Aaron consider hospitalization and an evaluation by either a psychiatrist or another medical doctor for antidepressant treatment. Wyeth CSUF ¶ 13. Aaron decided against hospitalization, but indicated to Dr. Perry that he would consider seeing a psychiatrist. Wyeth CSUF ¶ 14.
Dr. Perry also discussed the possible occurrence of suicidal thoughts with Aaron, and instructed him to either call Dr. Perry or go to the nearest hospital if Aaron should have such thoughts. Id. On that same day, Dr. Perry called Aaron's primary care physician's office, spoke with a nurse and recommended that Aaron be evaluated for antidepressant treatment. Wyeth CSUF ¶ 15. Although he was not Aaron's regular physician, the nurse informed Jason Rasefske, M.D. ("Dr. Rasefske") that Dr. Perry called and had recommended that Aaron be evaluated for the appropriateness of an antidepressant prescription. Wyeth CSUF ¶ 16.
Dr. Rasefske reviewed Aaron's chart, which indicated Aaron had no prior mental health treatment, and without speaking with either Aaron's regular physician or with Dr. Perry, prescribed thirty 75 mg. Effexor XR capsules for Aaron. Wyeth CSUF ¶¶ 16 & 17. The nurse called the prescription in to a local pharmacy and it was filled on July 27, 2005. Wyeth CSUF ¶¶ 18 & 27.
On August 3, 2005, Aaron met with Dr. Perry and informed him that since his last visit he had quit his job, had stop taking his medication, and had resumed the medication that morning. Wyeth CSUF ¶ 28. Aaron refused Dr. Perry's suggestion that he consider hospitalization, but agreed to allow Dr. Perry to set an appointment for him with a psychiatrist. Id. Aaron met with Dr. Perry again on August 5, 2005, and reported that: he did not want to take his medication; he would not consider hospitalization; and he would keep his appointment with a psychiatrist scheduled for August 8, 2005. Wyeth CSUF ¶ 29. Aaron denied having had any suicidal thoughts or plans. Wyeth CSUF ¶ 30. On August 7, 2005, Aaron died in his home due to a self-inflicted gunshot wound to the head. Wyeth CSUF ¶ 31.
Plaintiff alleges that it was not Aaron's mental illness, but rather the inadequate warnings on his antidepressant medication that caused him to commit suicide. Plaintiff herein is asserting claims of negligent failure to warn, negligent design, and breach of express warranty against Wyeth, Effexor's manufacturer.
III. LEGAL STANDARD FOR SUMMARY JUDGMENT
Pursuant to FED. R. CIV. P 56(c), summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. To support denial of summary judgment, an issue of fact in dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Id. The court's consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable inferences from the facts must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P 56(e). Further, the nonmoving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The non-moving party must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994). Moreover, the non-moving party cannot defeat a well supported motion for summary judgment by simply reasserting unsupported factual allegations contained in his pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
A. Preemption and Plaintiff's Negligent Failure-to-Warn Claim
Wyeth argues that the Food and Drug Administration's (FDA's) drug labeling determinations and/or requirements preempts Plaintiff's state negligent failure-to-warn claim. Federal "preemption is an affirmative defense on which [the] defendant bears the burden of proof." Cambridge Literary Props., Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. KG, 510 F.3d 77, 102 (1st Cir. 2007), cert. denied, 129 S.Ct. 58, 172 L.Ed. 2d 25 (2008); see also Wyeth v. Levine, 129 S.Ct. 1187, 1193 (2009)(characterizing a manufacturer's argument that federal drug law pre-empted the plaintiff's claims as a defense).
The Supreme Court has recognized that federal preemption comes in three forms. The first is explicit preemption which occurs when a federal enactment expressly preempts state law. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001); English v. General Electric Co., 496 U.S. 72, 78 (1990)("Congress can define explicitly the extent to which its enactments pre-empt state law."). The second is implied conflict preemption which arises when state law conflicts with a federal statute. See Bruesewitz v. Wyeth Inc., 561 F.3d 233, 239 (3d Cir. Pa. 2009). Implied conflict preemption can arise in one of two situations; (1) when it is "impossible for a private party to comply with both state and federal requirements" id. (quoting English v. General Elec. Co., 496 U.S. at 78-79); or (2) when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). Finally, implied field preemption can "be inferred from a scheme of federal regulation... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, or ...