Esposito v. Eli Lilly & Co.
856 F. Supp. 2d 904
E.D. Ky.2012Background
- Xanodyne moved to dismiss consolidated MDL and an individual case under Rule 12(b)(6).
- Plaintiffs alleged injuries from propoxyphene products and asserted various theories including product liability and misrepresentation.
- Court analyzes product identification as a threshold requirement in product-liability claims.
- Plaintiffs argued misrepresentation claims are separate theories not dependent on product identification.
- Court also evaluates whether brand-name manufacturer duties extend to consumers of generic propoxyphene forms.
- In Wagers, Lilly removed on diversity grounds and Xanodyne was found fraudulently joined; jurisdiction maintained after dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is product identification required for product-liability claims against Xanodyne? | Plaintiffs identify Xanodyne as responsible for ingested products. | Xanodyne cannot be liable for products it did not sell/manufacture. | Yes; product claims require identification; claims fail without identified Xanodyne product. |
| Are misrepresentation claims distinct from product-liability claims? | Misrepresentation claims survive even if product-liability fails. | Misrepresentation claims are subsumed by product-liability law or lack duty. | Misrepresentation claims are treated as product-liability claims for dismissal purposes. |
| Does brand-name manufacturer owe a duty to consumers of generic drugs? | Conte and Kellogg create a broad duty to generic users. | Majority rule rejects duty to users of generics. | Court follows majority; no duty to consumers of generics; plaintiffs cannot proceed without Xanodyne's product. |
| Is Xanodyne fraudulently joined in Wagers and is federal jurisdiction proper? | Wagers alleges injury from generic products; non-diverse defendant present. | Xanodyne not properly liable; fraudulently joined. | Fraudulent joinder established; removal proper; jurisdiction retained and Xanodyne dismissed. |
Key Cases Cited
- Iqbal v. United States, 556 U.S. 662 (U.S. 2009) (plausibility standard for pleading)
- Twombly v. Bell Atl. Corp., 550 U.S. 544 (U.S. 2007) (requiring non-conclusory factual allegations)
- Smith v. Wyeth, 657 F.3d 420 (6th Cir. 2011) (threshold product-identification requirement in product-liability claims)
- Conte v. Wyeth, Inc., 168 Cal.App.4th 89 (Cal. Ct. App. 2008) (duty to generic-drug consumers discussed (Cal. App. 2008))
- Kellogg v. Wyeth, 762 F. Supp. 2d 694 (D. Vt. 2010) (duty to consumers of generics discussed (District of Vermont 2010))
- Foster v. Am. Home Prods. Corp., 29 F.3d 165 (4th Cir. 1994) (majority view rejecting brand-duty to generic-users)
- Swicegood v. Pliva, Inc., 543 F. Supp. 2d 1351 (N.D. Ga. 2008) (misrepresentation claims collapse into failure-to-warn claims)
- Patterson v. Novartis Pharm. Corp., 451 F. App’x 495 (6th Cir. 2011) (briefing on product identification requirements)