Hogue v. Pfizer, Inc.
893 F. Supp. 2d 914
S.D. Ohio2012Background
- Plaintiff Hogue alleges Ohio product liability claims for tardive dyskinesia from metoclopramide ingestion; she never ingested brand-name Reglan®, only a generic version not manufactured by Brand Defendants.
- Brand Defendants Schwartz, Pfizer, Wyeth manufactured Reglan®; Hogue's ingestion involved generic metoclopramide beginning in 2000 until 2009, with symptoms appearing by 2009.
- Plaintiff asserts the risk of long-term metoclopramide use and insufficient warnings; claims include negligence, strict liability, warranties, misrepresentation, negligence per se, and gross negligence.
- This is a diversity action; Ohio law governs and the question is whether Brand Defendants can be liable under the Ohio Product Liability Act (OPLA).
- OPLA abrogates common law product liability claims and requires proof that the defendant designed/produced the actual product that caused harm; market-share liability is not allowed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OPLA abrogation of fraud/misrepresentation | Hogue—OPLA does not bar fraud claims based on failure to warn. | Brand Defendants—OPLA precludes common law fraud/misrepresentation claims arising from warnings. | OPLA abrogates misrepresentation and fraud claims. |
| Liability when defendant did not manufacture the ingested product | Hogue seeks liability based on dissemination of information and duty to warn. | OPLA requires the defendant to have manufactured the actual product that caused harm. | Brand Defendants cannot be liable under OPLA because they did not manufacture the generic metoclopramide ingested. |
| Impact of Mensing on Ohio product liability claims | PLIVA v. Mensing changes the landscape for generic/drug liability. | Mensing has no bearing on brand manufacturers under Ohio law in this context. | Mensing has no effect on Brand Defendants under Ohio product liability law for ingested generics not manufactured by them. |
| Inventor/primary manufacturer theory under OPLA | Brand Defendants may be liable as inventors/primary manufacturers of metoclopramide. | OPLA precludes liability as to those theories when the actual product causing harm was not manufactured by them. | OPLA precludes liability based on inventor/primary-manufacturer theories. |
Key Cases Cited
- Smith v. Wyeth, Inc., 657 F.3d 420 (6th Cir. 2011) (applies Kentucky Product Liability Act to all damages; rejects duty to individuals who never took the drug)
- Glassner v. R.J. Reynolds Tobacco Co., 223 F.3d 343 (6th Cir. 2000) (distinguishes preemption of fraud claims based on duty to warn vs. duty not to deceive)
- Miles v. Raymond Corp., 612 F.Supp.2d 913 (N.D. Ohio 2009) (OPLA abrogation of common law product liability claims in Ohio context)