Fisher v. Pelstring
2012 U.S. Dist. LEXIS 18729
D.S.C.2012Background
- Removed from South Carolina state court; plaintiffs allege Mr. Fisher's tardive dyskinesia from long‑term metoclopramide use; Dr. Pelstring prescribed the drug; Wyeth/Schwarz (brand) dismissed earlier; PLIVA is generic metoclopramide manufacturer; multiple motions addressing preemption, summary judgment, and expert testimony; plaintiffs seek various state-law theories including negligence, warranties, misrepresentation, and UTPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether state-law claims are preempted by federal law | Mensing not dispositive due to possible labeling deviations | Mensing controls; impossible to comply with state and federal duties | Partial preemption; some claims not fully preempted; remaining issues proceed to summary judgment analysis |
| Whether claims are timely under statute of limitations | tolling under 15-79-125 applies; May 2008 diagnosis supported | limitations began earlier; May 2005 or earlier dates alleged | Genuine issue of material fact on timeliness; tolling may apply; amendment granted |
| Whether proximate cause/learned intermediary doctrine bars claims | Physician's knowledge/reading warnings; chain of causation established | Learned intermediary relieves manufacturer of liability if physician aware | Issues of fact; summary judgment denied on proximate cause/learned intermediary |
| Whether plaintiffs show general/specific causation | Experts support causation of TD by metoclopramide | Challenged reliability/alternative explanations; differential diagnosis required | General causation: admissible at this stage; specific causation: not excluded; issues for trial |
| Whether certain implied warranties claims survive Mensing | Implied warranties independent of labeling; long-term use as ordinary purpose | Preempted by Mensing for labeling-related warranties | Implied warranty of merchantability/fitness viable; preemption not bar to these claims |
Key Cases Cited
- PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (U.S. 2011) (preemption of generic-drug labeling claims)
- Odom v. G.D. Searle & Co., 979 F.2d 1001 (4th Cir. 1992) (learned intermediary doctrine; physician warnings burden)
- In re Bausch & Lomb Inc. Contacts Lens Solution Prods. Liab. Litig., 693 F. Supp. 2d 515 (D.S.C. 2010) (Daubert/admissibility considerations in medical causation)