MEMORANDUM
Pending before the court is the Motion for Summary Judgment filed by defendants Pfizer Inc. and Warner-Lambert Company LLC (Docket No. 17), the plaintiffs response (Docket No. 51), and the defendants’ reply (Docket No. 55). For the reasons discussed below, the defendants’ motion will be denied.
FACTS
On May 13, 2004, 79-year-old Richard Smith (“Smith”) committed suicide. 1 Two months earlier, Smith had filled a prescription for the medication Neurontin, which is manufactured by defendants Pfizer Inc. and Warner-Lambert Company LLC (collectively, “Pfizer” or “defendants”). Smith’s widow, plaintiff Ruth Smith, alleges that Neurontin caused Smith’s suicide.
In the years leading up to his death, Smith suffered from chronic joint and spine conditions that caused him severe pain and required numerous surgeries. *739 Smith underwent back surgery in April 2003. A month later, he was diagnosed with depression and anxiety, and in the year following the surgery, he mentioned suicide at least twice. Smith was prescribed Neurontin in May 2003, but he did not fill that prescription. Another doctor suggested Neurontin in January 2004, but Smith did not follow up.
On March 9, 2004, Smith’s orthopedic surgeon, Dr. Edward Mackey, prescribed 300 mg of Neurontin, twice daily, in an effort to treat Smith’s chronic pain. Smith filled a 30-day prescription later that day. He also received several sample packages of Neurontin from a nurse in Dr. Mackey’s office.
Although Neurontin has been approved by the FDA to treat epilepsy, doctors frequently prescribe it for the “off-label” usage of treating pain. 2 During visits to Dr. Mackey’s office, Pfizer sales representatives promoted Neurontin’s ability to treat neuropathic pain, but they failed to disclose that the drug may cause depression and suicidality in patients. There is evidence that the defendants were aware of these side effects.
In March and April of 2004, Smith continued to experience excruciating pain, which, according to the plaintiff, forced him to spend most of his time “[lying] around.” (D. Mass., No. 04-10981 (“MDL”) Docket No. 1644, Ex. 4 at 166.) On May 13, Smith committed suicide in his bedroom by shooting himself in the head. He left a note:
Pain has taken over my mind and body! I need back surgery, left and right rota-tor cuffs, right bicep torn, back surgery to correct pain in legs. Forgive me; I cannot go on like this. I cannot have my body, the temple of the Holy Spirit, cut on anymore. I have talked to God all night and he understands.
(MDL Docket No. 1644, Ex. 2 at 497-98.)
The investigator who examined the scene of the suicide collected Smith’s medications, including the Neurontin. He testified that there were pills remaining in the Neurontin bottle, although he “probably” did not record the number of pills, because it did not appear at that time that Smith’s death was related to Neurontin. (MDL Docket No. 1679, Ex. 24 at 49-50.) For the same reason, the medical examiner did not run a toxicology screen to test the level of Neurontin in Smith’s blood. One of the plaintiffs expert witnesses, Dr. Ronald Maris, conceded at his deposition that the investigator’s report indicated that the bottle “looks like it’s full of Neurontin.” (MDL Docket No. 1644, Ex. 3 at 527-28.) There were also unopened sample packages of Neurontin in Smith’s bedroom.
Ruth Smith testified that she cannot recall observing Smith take his Neurontin every time the prescription called for it. But she testified that Smith did take his prescriptions as prescribed because “that was just the way he did things”:
Q. ... [D]o you have personal knowledge as to whether your husband took this medication, the Neurontin prescription you picked up on March 9 or '04, in the way that the doctor had prescribed it?
A. I did know he did that.
Q. How do you know that?
A. That was just the way he did things, and that’s one reason I picked up the prescription that day, make sure he could start it.
Q. So you didn’t observe him take it each time he took it; correct?
*740 A. At this time I can’t recall whether I observed him every time, but he usually kept it on the dinette table, and that’s where he would take it.
Q. But your knowledge about how he normally conducted himself was that he would take it as the doctor prescribed? A. Absolutely.
Q. So did he take his first dosage that very day [on March 9]?
A. Yes.
(MDL Docket No. 1644, Ex. 4 at 143.)
On April 14, 2004, Smith filled out a list of current medications for his physical therapist. On that sheet, Smith wrote that he was taking “Neurontin 300” for “pain in lower back + legs to ankles.” (MDL Docket No. 1679, Ex. 30.)
Lewis Carnahan, Smith’s son-in-law, is a pharmacist at a VA medical center. Carnahan testified that Smith “occasionally would come to [him] about some medications.” (Docket No. 1679, Ex. 26 at 20.) He said that Smith asked him about Neurontin’s side effects five days before committing suicide:
Q. And how did it come about on May 8th of 2004 that you learned that Richard was taking a medication called Neurontin?
A. ... We were at a gathering at Sherri’s house.... He pulled me aside and asked me about — he didn’t ask me about side effects. He described side effects to me and asked if I thought it was the Neurontin.
Q. Tell me what side effects he described to you, please.
A. He told me that he was feeling loopy. He did not feel like himself since taking the Neurontin....
Q. And did he either volunteer or did you ask him what he meant by feeling loopy? ...
A. I don’t recall anything offhand, anything additional that he said. He just kept saying that it made him loopy; he didn’t feel like himself. And that was the main side effect that bothered him, so that’s what he brought up with me in that conversation....
Q. Okay. And what did you tell him?
A. I told him that it was a possibility.
Q. And how did you know or believe that was a possibility?
A. Because patients that I have seen [at the YA medical center] have also described similar [Neurontin] side effects to me.
(Id. at 20-23.)
Dr. Mackey, who prescribed Smith’s Neurontin, testified that knowledge about the drug’s suicide-related risks would have been relevant to his decision to treat Smith with the drug:
Q. On page 117 it talks about [Neuron-tin’s] problems with suicide.... Is that the kind of thing that would be important to know before you start prescribing a drug? ...
A. Yes.
Q. All right. Because if you’re going— if you have got a drug that, that may cause suicide, clinically significant depression, you probably had other optional drugs you could have given Mr. Smith that, that don’t seem to have that side effect; true? ...
A. Potentially, yes.
(MDL Docket No. 1679, Ex. 12 at 35-86.)
Dr. Mackey further testified that, had he known about an increased suicide risk, he would have warned Smith to be aware of such risk while taking Neurontin:
Q. Now if you had been told either in the labeling information or through sales reps or, Dr. Mackey, through your partners, if you had been told that Neuron-tin was a drug with some of the problems we’ve talked about so far today, would it have changed the way you treated Mr. Smith? ...
*741 A. Possibly. Probably.
Q. Probably. And by probably, would it have meant you would have either tried another drug first, or would you have at least put out some warnings and some safeties and precautions and told them what to be observant about? ...
A. Certainly I would have done the latter.... And I don’t know about the former....
Q. Okay. Mr. Smith, when he presented to you, I’ve read through your chart, there’s nothing about him that made you think he was a suicide risk when he presented, was there?
A. No.
(Id. at 42-43.)
Even though Dr. Mackey now knows about Neurontin’s possible side effects, he still “selectively” prescribes the drug. (MDL Docket No. 1644, Ex. 7 at 92.) But had Smith come to him today, he would have prescribed a different, newer drug:
Q. And my understanding from your testimony ... is, based on what you know today, you don’t know one way or the other whether you would still prescribe for Mr. Smith, is that accurate?
A. If Mr. Smith came into my office today, I would not prescribe him Neurontin as — he would have gotten Lyrica.
Q. Okay. Lyrica wasn’t available in 2004, was it?
A. No. Not that I’m aware of. Not that I recall.
(Id. at 92-93.)
The plaintiff originally filed suit in Tennessee state court. Pfizer removed to this court in June 2005, and in July 2005, the case was transferred to the District of Massachusetts (the “MDL court”), pursuant to an order from the Judicial Panel on Multidistrict Litigation. There, the case underwent consolidated pre-trial proceedings with similar cases in MDL No. 1629,
In re Neurontin Marketing, Sales Practices and Products Liability Litigation.
The case was remanded to this court on November 9, 2009. (Docket No. 10.) The MDL court previously denied the defendants’ motion to strike the plaintiffs expert testimony regarding general and specific causation,
In re Neurontin Mktg.,
No. 04-cv-10981,
ANALYSIS
The plaintiffs remaining claims are for negligence, products liability, breach of implied warranties, and fraudulent concealment. The defendants have filed a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56, arguing that the plaintiff cannot show that Neuron-tin was the actual or proximate cause of Smith’s death and that the warranty and fraudulent concealment claims must be dismissed.
I. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) requires the court to grant a motion for summary judgment if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” If a moving defendant shows that there is no genuine issue of material fact as to at least one essential element of the plaintiffs claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings “set[ting] forth specific facts showing that there is a genuine issue for trial.”
Moldowan v. City of War
*742
ren,
“ ‘[T]he judge’s function is not ... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.’ ”
Id.
(quoting
Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249,
II. Whether Smith Ingested Neurontin
The defendants first argue that there is insufficient evidence to show that Smith took Neurontin in the time period relevant to his suicide.
Unless Neurontin is the cause in fact of Smith’s suicide, the plaintiff cannot prevail on any of her claims.
3
See In re Neurontin,
Here, the plaintiff must prove that Smith actually ingested Neurontin. In their brief, the defendants vigorously argue that Smith did not consume the drug in the days leading up to his death:
Mr. Smith did not take his Neurontin as prescribed. Mr. Smith failed to fill an earlier prescription for Neurontin and failed to take even one pill from a blister pack given to him by his physician’s nurse. 4 Had Mr. Smith been following directions, the one and only
Neurontin prescription that he filled should have been empty by April 8, 2004, more than one month before his May 13, 2004 death. Yet a bottle of Neurontin — which Dr. Maris described as “full” — was found on Mr. Smith’s dresser after his death. On this basis, even Dr. Maris conceded that Mr. Smith had to have “skipped a few doses.”
(Docket No. 18 at 10 (citations omitted).)
But the plaintiff presents evidence that, five days before committing suicide, *743 Smith told Carnahan that he “was feeling loopy” and that he “did not feel like himself since taking the Neurontin.” (Docket No. 1679, Ex. 26 at 21.) The plaintiff herself testified that it was Smith’s habit to take his medication as prescribed, and she observed him taking the pills on at least one occasion. Also, one month before his suicide — and therefore one month after filling his Neurontin prescription— Smith informed his physical therapist that he was taking Neurontin. This evidence all tends to support the plaintiffs contention that Smith took Neurontin up to the time of his death. 5
The defendants characterize the above evidence as mere “speculation,” and they claim that there is an “utter lack” of evidence that Smith “ingested Neurontin at any time temporally related to his suicide.” (Docket No. 18 at 9 n. 4; Docket No. 55 at 1-2.) Certainly, the plaintiffs case is weakened by the fact that some number of Neurontin pills remained in the bottle two months after Smith filled his 30-day prescription. The defendants have raised a question of fact regarding Smith’s Neuron-tin intake, and it is possible that their arguments will persuade a jury at trial. But drawing all inferences in favor of the plaintiff, the court finds that a reasonable jury could still conclude that Smith took Neurontin in the days leading up to his death.
6
The testimony' — particularly Carnahan’s testimony — and document described above provide more than a “scintilla” of evidence supporting the plaintiffs case.
See Moldowan,
Under the defendants’ standard, a wrongful-death plaintiff in a pharmaceutical case could not prevail unless (1) someone directly observed the deceased taking the drug immediately before death, or (2) a toxicology report indicated that the drug was in the deceased’s system. These strict requirements are not supported by case law.
*744
None of the cases cited by the defendants are on point. For example, in
Best v. Lowe’s Home Centers, Inc.,
No. 3:04-CV-294,
The defendants also cite
In re Propulsid Products Liability Litigation,
The defendants also argue that the plaintiffs evidence is inadmissible. Specifically, they claim that Carnahan’s testimony is hearsay. But Federal Rule of Evidence 803(4) allows a hearsay exception for “[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof.” Smith’s questions to Carnahan, who is a pharmacist, fall under this exception. Smith told Carnahan that he felt “loopy” and asked him whether he thought that this feeling could be caused by Neurontin; in other words, Smith sought a medical professional’s help in diagnosing the cause of distressing psychological symptoms.
The defendants argue that Carnahan is merely
a
pharmacist, not
Mr. Smith’s
pharmacist, and that, in any event, Rule 803(4) does not apply to pharmacists. (Docket No. 55 at 6-7 n. 8.) Nothing in the text of the rule supports such limits. The Advisory Committee note to 803(4) explains that the exception is rooted in a “patient’s strong motivation to be truthful” when seeking medical advice, which provides a “guarantee of trustworthiness.” Carnahan became “Smith’s pharmacist” when Smith began asking him medical questions, and Smith had every motive to truthfully explain his condition. That Carnahan was Smith’s son-in-law, or that Smith spoke to Carnahan in an informal
*745
setting, does not diminish this motivation. Indeed, the committee note explains that “[statements to hospital attendants, ambulance drivers, or even
members of the family
might be included” in the scope of the exception. Fed.R.Evid. 803(4) advisory committee’s note (emphasis added). And even though pharmacists are not medical doctors, they are trained professionals who are capable of advising patients about pharmaceuticals.
See United States v. Kappell,
The defendants also argue that Ruth Smith’s testimony regarding her husband’s tendency to take medicine as prescribed is not admissible evidence of habit. Rule 406 states that “[e]vidence of the habit of a person ..., whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit.” First, the defendants note that Ruth Smith’s testimony conflicts with the fact that Smith’s bottle of Neurontin was not empty at the time of his death. But additional evidence that a person acted contrary to his general habit does not render habit testimony inadmissible. Second, citing
Bell v. Consolidated Rail Corp.,
In sum, the court finds that the plaintiff has offered enough admissible evidence to create a question of fact as to whether Smith took Neurontin in the days before his death.
III. The Learned Intermediary Doctrine
Next, the defendants argue that the plaintiff has failed to show causation because additional warnings would not have affected Dr. Mackey’s decision to prescribe Neurontin.
Tennessee law recognizes the learned intermediary doctrine. Under this doctrine, “makers of unavoidably unsafe products who have a duty to give warnings may reasonably rely on intermediaries to transmit their warnings and instructions.”
Pittman v. Upjohn Co.,
Of course, “the learned intermediary doctrine does not shield a drug manufacturer from liability for inadequate warnings to the physician,”
id.,
and here, the plaintiff has alleged that Pfizer did not adequately warn Dr. Mackey of Neuron-tin’s side effects. Nevertheless, a pharmaceutical company can escape liability if it can show that additional warnings would not have changed the prescribing doctor’s actions. In other words, the plaintiff must show that “the failure to warn the physician was ... a cause in fact ... of the plaintiffs injury.”
Harden v. Danek Med., Inc.,
There is no evidence that additional warnings from Pfizer would have caused Dr. Mackey to avoid prescribing the drug for Smith. Dr. Mackey did testify, however, that, had he known about Neurontin’s psychological side effects, he “certainly” would have warned Smitn about them and told Smith to look for signs of depression and suicidal ideation. (MDL Docket No. 1679, Ex. 12 at 42-43.) Similarly, the nurse who gave Smith the sample packages of Neurontin testified that she would have warned patients if she had known about Neurontin’s side effects. (Id., Ex. 25 at 15-16.)
The defendants argue that the plaintiff must present evidence that these hypothetical warnings would have caused Smith to stop taking Neurontin. They cite
Vanderwerf v. SmithKlineBeecham Corp.,
In the instant case, though, it is not “entirely speculative” that Smith would have heeded warnings from Dr. Mackey. Even without the benefit of a doctor’s warnings, Smith sought advice from his pharmacist son-in-law as to whether Neurontin could cause him to feel “loopy.” This shows that Smith was concerned with the drug’s side effects and that he was willing to follow up on those concerns. From this evidence, the jury could reasonably conclude that Smith would have stopped taking Neurontin if Dr. Mackey had told him in March 2004 that he should be alert to the possibility of increased depression or suicidality.
See Forst v. SmithKline Beecham Corp.,
Thus, the jury need not rely solely on its common sense to conclude that warnings from Dr. Mackey might have prevented Smith’s suicide. The court finds that the learned intermediary doctrine does not require dismissal of the plaintiffs claims.
IY. Whether Suicide was an Intervening Cause
The defendants further argue that, under Tennessee law, Smith’s suicide is an intervening cause that destroys proximate causation and relieves them of liability. 8
The defendants correctly point out that Tennessee courts have long held that “the voluntary and free act of the deceased in taking [his] own life ... [is] an abnormal thing, which supersedes defendant’s liability.”
Lancaster v. Montesi,
But the doctrine of independent intervening cause only applies when the intervening act (1) was not reasonably foreseeable to the negligent actor and (2) was not a normal response to the negligent actor’s conduct. Id. Accordingly, Tennessee courts have recognized three exceptions to the general rule that suicide constitutes an intervening cause:
(1) [C]ircumstances in which the defendant’s negligence causes delirium or insanity that results in self-destructive acts; (2) custodial settings in which the custodian knew or had reason to know that the inmate or patient might engage in self-destructive acts; and (3) special relationships, such as a physician-patient relationship, when the caregiver knows or has reason to know that the patient might engage in self-destructive acts.
Id.
at 593-94 (citations omitted);
see also MacDermid v. Discover Fin. Servs.,
The defendant argues that these are the only possible exceptions to the general rule regarding suicide and that none of them applies to this case. But this view is too narrow, and it disregards the relatively recent Tennessee Supreme Court case of
White v. Laurrence,
[P]roximate cause, or legal cause, concerns a determination of whether legal liability should be imposed where cause in fact has been established. Proximate or legal cause is a policy decision made by the legislature or the courts to deny liability for otherwise actionable conduct based on considerations of logic, common sense, policy, precedent and “our more or less inadequately expressed ideas of what justice demands or of what is administratively possible and convenient.”
Id. at 529 (citation omitted). The court then noted that “suicide may constitute an intervening cause if it is a willful, calculated, and deliberate act of one who has the power of choice.” Id. at 530 (emphasis added).
But the
White
court explained that “[t]he fact that the deceased was not
*748
insane or bereft of reason does not necessarily lead to the conclusion that the suicide ... is unforeseeable.”
Id.
In examining proximate causation, “the crucial inquiry is whether the defendant’s negligent conduct led to or made it reasonably foreseeable that the deceased would commit suicide. If so, the suicide is not an independent intervening cause breaking the chain of legal causation. Those decisions holding to the contrary are overruled.”
Id.; see also Drake v. Williams,
No. M2007-00979-COA-R3-CV,
This court has little trouble concluding that, if a drug company negligently or intentionally fails to warn doctors that a particular drug increases the risk of suicide, it is foreseeable that some patients who take the drug will commit suicide. Indeed, in that case, an increased rate of suicide is the “normal [result of] the negligent actor’s conduct.”
Rains,
The circumstances in
White
were analogous. There, the deceased suffered from alcoholism and severe depression. The defendant doctor instructed the deceased’s wife to secretly place Antabuse, a drug that interacts with alcohol to create a highly unpleasant physical reaction, in the deceased’s food.
Pfizer argues that, in
MacDermid,
the Sixth Circuit held that “Tennessee’s framework for analyzing suicide as intervening cause is not based on fact issues regarding foreseeability.” (Docket No. 55 at 15.) Thus, according to the defendants, outside of the three narrow exceptions listed in
Rains,
suicide is
always
an intervening factor that destroys proximate causation.
(Id.
at 15-16.) But this is a misreading of
MacDennid,
which explicitly stated that “foreseeability is the touchstone of the independent intervening cause inquiry.”
Furthermore,
MacDei"mid
is factually distinguishable from the instant case. There, the defendant credit card company was attempting to collect a debt from the plaintiffs wife. When the defendant threatened the wife with criminal fraud prosecution, she committed suicide.
Id.
at 725-27. After analyzing Tennessee case law, the Sixth Circuit held that the wife’s suicide resulted from a “moderately intelligent power of choice” and thus constituted
*749
an intervening cause.
Id.
at 738. The court relied heavily on
Lancaster,
a 1965 decision from the Tennessee Supreme Court.
See id.
at 737 (citing
Lancaster,
There is a clear difference between a defendant’s harassing or abusive behavior, as in
MacDermid
and
Lancaster,
and a defendant’s negligence that causes a patient to ingest a drug that increases suicidality. In the latter case, suicide is, in some sense, “a normal response” to the defendant’s actions.
See Rains,
Because it is at least a question of fact whether Smith’s suicide is an independent intervening cause, the court will not dismiss the plaintiffs claims for lack of proximate cause.
Accord Rimbert v. Eli Lilly & Co.,
V. Implied Warranty Claims
The defendants argue that the plaintiff cannot maintain her claims for breach of implied warranty because she failed to give Pfizer notice of her claims before filing suit. They also argue that the claim for breach of implied warranty of fitness fails because there is no evidence that Smith or Dr. Mackey relied on the defendants’ skill and judgment.
Under Tennessee law, a buyer claiming breach of warranty “must within a reasonable time after he discovers ... any breach notify the seller of breach or be barred from any remedy.” Tenn.Code Ann. § 47-2-607(3)(a). The term “ ‘within a reasonable time’ should be determined on a case-by-case basis, and in light of the nature, purpose and circumstances of such action.”
Carmichael & Carmichael, Inc. v. Nicholstone Cos.,
No. 01-A-01-9104-CV-00148,
The defendants do not argue that one year was an unreasonably long delay in giving notice.
10
Instead, they argue that the statute required the plaintiff to
*750
give a separate, pre-suit notification of Smith’s death. But section 47-2-607(3)(a) simply requires that a plaintiff “notify the seller of breach within a reasonable time.” Nothing in the plain text of the statute indicates that a lawsuit cannot serve as this notification.
Cf. Ashley v. Goodyear Tire & Rubber Co.,
The defendants claim that
Friedman v. Georgia Showcase Co.,
The defendants also provide some non-Tennessee authority that commercial plaintiffs must give a separate, pre-suit notification.
E.g., Williams v. Mozark Fire Extinguisher Co.,
It does not appear that Tennessee courts have squarely addressed this issue. But in
Moulton v. Ford Motor Co.,
This approach accords with the purpose of the statute. Generally, the notice provision is intended to alert the seller “that the transaction is still troublesome and must be watched,” as well as to “open[ ] the way for normal settlement through negotiation.”
11
U.C.C. § 2-607 cmt. 4. “As envi
*751
sioned by Tenn.Code Ann. § 47-2-607(3)(a), a seller of goods with timely notice that they are nonconforming may inspect the goods ... and then cure the defects or preserve evidence that no breach occurred.”
Duffy Tool & Stamping v. Bosch Auto. Motor Sys. Corp.,
No. M1997-00144-COA-R3-CV,
But notice serves a different purpose in personal injury cases:
The purpose of enabling the seller to cure the defect has significance in a commercial setting but has no significance in a personal injury case[,] because the defect has already caused the harm and the seller can do nothing to remedy the situation that has already occurred. However, the notice still serves the purpose of alerting the seller to the need of gathering evidence in preparation for trial or negotiation, and in order to protect against stale claims. It also serves the general social purpose of informing the manufacturers of the need for making improvements to avoid further injuries.
Lary Lawrence, 6 Lawrence’s Anderson on the Uniform Commercial Code § 2-607:7 (3d. ed. 2009).
These latter purposes are served just as well by the filing of a lawsuit as by a separate, pre-suit notification.
See Hobbs v. GMC,
Next, the defendants argue that the plaintiffs implied warranty of fitness claim must be dismissed because the plaintiff has not shown that Smith or Dr. Mackey relied on Pfizer’s skill and judgment to furnish suitable goods. See Tenn.Code Ann. § 47-2-315 (requiring that the seller know that “the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods”).
Dr. Mackey explicitly testified, however, that he relied on information from the defendants when assessing Neurontin’s fitness as a pain medication:
Q.... [H]ad you been under the impression that Neurontin was effective for pain relief in a person like Mr. Smith?
A. Yes.
Q. When you make determinations like this ... Do you go out there and do your own independent medical research on drugs before you prescribe them?
A. No.
Q. Do you rely upon the drug companies to be honest and forthright with you? ...
A. Yes.
Q. ... Do you rely on the drug companies to tell you both the, the good and the bad and the ugly about their drugs, be honest about it?
A. Yes.
(MDL Docket No. 1679, Ex. 12 at 27-28.)
Smith, in turn, obviously relied on Dr. Mackey’s determination that Neurontin was a suitable drug. Because this fulfills the reliance requirement of section 47-2- *752 315, the court will not dismiss the plaintiffs claim for breach of implied warranty of fitness.
VI. Fraudulent Concealment Claim
Finally, the defendants argue that the plaintiffs fraudulent concealment claim fails because they had no duty to disclose Neurontin’s risks to Dr. Mackey. 12
Under Tennessee law, “ ‘the tort of fraudulent concealment is committed when a party who has a duty to disclose a known fact or condition fails to do so, and another party reasonably relies upon the resulting misrepresentation, thereby suffering injury.’ ”
Shah,
The duty to disclose arises in three distinct circumstances: (1) “where there is a previous definite fiduciary relation between the parties,” (2) “where it appears one or each of the parties to the contract expressly reposes a trust and confidence in the other,” and (3) “where the contract or transaction is intrinsically fiduciary and calls for perfect good faith.”
Id.
(quoting
Domestic Sewing Mach. Co. v. Jackson,
First, the MDL court already held, in deciding Pfizer’s motion to dismiss, that “a manufacturer of a pharmaceutical has a duty to disclose to physicians and patients material facts about the risks of the drug, particularly when it is engaged in off-label marketing for uses not approved by the FDA, if it knows that the plaintiff and/or his prescriber does not know or cannot reasonably discover the undisclosed facts.”
In re Neurontin,
Under the law of the case doctrine, this determination by the MDL court is binding. “[T]he law of the case doctrine provides that a prior order of the Court in an action controls unless a showing of a manifest injustice arises.”
13
John B. v. Goetz,
No. 3:98-0168,
Second, the defendants ignore the line of Tennessee precedent that arises from
Simmons v. Evans,
Furthermore, it is well settled that a drug manufacturer has “an obligation to advise the prescribing physician of any potential dangers that may result from the drug’s use.”
15
Laws v. Johnson,
In
Shah,
the Sixth Circuit recognized the existence of
Simmons
and subsequent cases but noted that they were generally limited to real estate or automobile sales.
The defendants cite two Eastern District of Tennessee cases in support of their argument, but both are easily distinguishable from the instant case. In
McConkey v. McGhan Med. Corp.,
In
Morgan v. Brush Wellman, Inc.,
Tennessee courts have deemed it important enough for a home seller to disclose that a house is constructed from logs,
Odom,
CONCLUSION
For all of the reasons discussed above, the court will deny the defendants’ Motion for Summary Judgment.
An appropriate order will enter.
Notes
. Unless otherwise noted, the facts are drawn from the defendants' Statement of Undisputed Material Facts (D. Mass., No. 04-10981 (‘'MDL”) Docket No. 1643), the plaintiff's response (MDL Docket No. 1678), and related exhibits. Although facts are drawn from submissions made by both parties, on a motion for summary judgment, the court draws all reasonable inferences in favor of the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
. In June 2004, Warner-Lambert Company LLC pleaded guilty to charges that it marketed the drug for off-label usage.
. As mentioned above, the MDL court has already rejected Pfizer's
Daubert
motions, which sought to exclude the testimony of the plaintiffs' experts regarding general causation (i.e., that exposure to Neurontin can, generally speaking, cause suicide-related injuries) and specific causation (i.e., that Neurontin caused Smith’s suicide).
In re Neurontin,
. In response, the plaintiff points out the possibility that Smith finished one or more whole sample packs.
. The plaintiff has also submitted a letter from Smith’s dentist, Christopher Wood, dated May 19, 2004. (MDL Docket No. 1679, Ex. 1.) Dr. Wood, who was a friend of Smith's, wrote about Smith’s May 10 dentist appointment, which was only three days before the suicide: "Smith said well I am on a lot of drugs. You know anything about Neurontin? I shook my head.... He then said he had gone online and looked it up saying it was extremely powerful, with numerous side effects. Plus it makes me feel weird and isn’t helping me." (Id.)
Although this supports the contention that Smith was taking Neurontin, it is inadmissible as double hearsay, because the unsworn statements in the letter are being offered for their truth. Smith’s comments probably fall under the medical-diagnosis hearsay exception, Fed. R. of Evid. 803(4), but the letter itself is also hearsay. The plaintiff’s memorandum suggests that Dr. Wood can testify at trial as to the contents of the letter and be "subject to cross-examination” (Docket No. 51 at 6), but the court cannot consider the unsworn letter, standing alone, at the summary judgment stage.
Alexander v. Care-Source,
. Thus, the court need not rule at this time on the admissibility of Dr. Maris’ and Dr. Trimble’s statements that Neurontin can have prolonged effects on a patient’s brain chemistry, even after the drug has left the bloodstream. (See Docket No. 18 at 10 n. 5; Docket No. 55 at 8-10.) The defendants contend that Neurontin has a half-life of five to seven hours and that the drug is largely eliminated from a patient’s bloodstream within 24 hours of ingestion.
. The plaintiff does not specifically address Rule 406 in her response memorandum, and the defendants raised the argument for the first time in their reply.
. The plaintiff points out that the defendants did not raise this argument in their earlier motion for summary judgment in the MDL court. Nevertheless, this court will consider the issue.
.
White
is the basis for the "doctor-patient” exception listed in
Rains. See Rains,
. In any event, the reasonableness of the delay is a question of fact for the jury.
See, e.g., Artistic Carton Co. v. Thelamco, Inc.,
No. 1:06-CV-316-TS,
. The defendant's argue that the comment to U.C.C. § 2-607 states that the purpose of the notice requirement is to give the parties "the opportunity to settle the dispute pñor to litigation.” (Docket No. 55 at 17.) But the com *751 ment only refers to "normal settlement through negotiation.” U.C.C. § 2-607 cmt. 4. It is not immediately obvious that "normal settlement” cannot occur after a lawsuit has been filed. Also, the comment states that "there [is no] reason to require the notification to be a claim for damages.” Id. (emphasis added). The clear implication is that a claim for damages can serve as notification.
. The MDL court previously dismissed the plaintiff's fraud claim "alleging affirmative misrepresentations or a suppression of information as part of a national marketing campaign.”
In re Neurontin,
. The court realizes that a "holding on a motion to dismiss does not establish the law of the case for purposes of summary judgment, when the complaint has been supplemented by discovery.”
McKenzie v. BellSouth Telecomms., Inc.,
. Although there was no contract directly between Smith and Pfizer, the principle expressed in
Simmons
applies equally to drug manufacturers that conceal information from doctors and patients. For example, in
Collins v. Danek Medical, Inc.,
No. 95-2829,
. The defendants argue that Pfizer's duty to warn of risks is completely unrelated to its duty to disclose those risks (Docket No. 18 at 20 n. 12), but this is unpersuasive. Neither
Shah
nor
McConkey v. McGhan Medical Corp.,