               Case: 12-13321     Date Filed: 08/01/2013     Page: 1 of 4


                                                                  [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT

                         _____________________________

                                  No. 12-13321
                         _____________________________

                     D. C. Docket No. 8:10-cv-02658-JDW-AEP



BARBARA METZ, et al.

                                                                  Plaintiffs -Appellants,

                                         versus

WYETH, LLC, et al.,

                                                                 Defendants-Appellees.


                 _________________________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                       _________________________________________

                                  (August 1, 2013)

Before MARTIN and FAY, Circuit Judges, and EDENFIELD, * District Judge.




  *
   Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
              Case: 12-13321      Date Filed: 08/01/2013   Page: 2 of 4


PER CURIAM:


       The Metz’s case had a bad two days in June, as their attorney has

recognized in a model display of professionalism. The opinions in Mutual

Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466 (2013), and Guarino v. Wyeth,

LLC, et al., __F.3d__, No. 12-13263, 2013 WL 3185084 (11th Cir. June 25, 2013),

disposed of all the claims before us, including the Metz’s negligent design claim

against Wyeth and Schwarz. See Guarino, 2013 WL 3185084, at *5. The

judgment of the district court therefore is


AFFIRMED.




                                              2
              Case: 12-13321     Date Filed: 08/01/2013   Page: 3 of 4


MARTIN, Circuit Judge, concurring:

      While conceding that most of their arguments on appeal were disposed of by

Mutual Pharm. Co., Inc. v. Bartlett, ___ U.S. ___, 133 S. Ct. 2466 (2013), and

Guarino v. Wyeth LLC, et al., ___ F.3d ___, No. 12-13263, 2013 WL 3185084

(11th Cir. June 25, 2013), the Metzes asserted at oral argument that their negligent

design claim against Wyeth and Schwarz survived. I write separately only to

elaborate on the majority’s conclusion that Guarino also precludes that claim.

      The holding in Guarino is clear: “Florida law does not recognize a claim

against the brand manufacturer of a prescription drug when the plaintiff is known

to have consumed only the generic form.” 2013 WL 3185084, at *7. Because

Mrs. Metz only consumed the generic form of metoclopramide, Guarino’s analysis

bars any claims, including a negligent design claim, against Wyeth and Schwarz,

the brand name manufacturers.

      Also, contrary to the Metzes’ argument, Vincent v. C.R. Bard, Inc., 944 So.

2d 1083 (Fla. 2d DCA 2006), does not alter our analysis. In that case, the Florida

Second District Court of Appeal held that “a designer who defectively designs a

product should not be shielded from liability for negligence because of the mere

fact that there was an intervening manufacturer or distributor.” Id. at 1086.

However, unlike Vincent, where the designer used a separate firm to manufacture

                                          3
              Case: 12-13321    Date Filed: 08/01/2013   Page: 4 of 4


its product and profited from that product’s sale, here Wyeth did not use Actavis to

manufacture its drug and profit from Mrs. Metz’s purchase of the Actavis product.

The relationships between the designer and the manufacturer and purchaser in

Vincent are not analogous to the relationships between Wyeth and Actavis or

Wyeth and Mrs. Metz. Tellingly, a number of the Florida cases on which Guarino

relied for its holding were issued after Vincent. Guarino, 2013 WL 3185084, at

*5; see also, e.g., Howe v. Wyeth Inc., No. 8:09-CV-610-T-17AEP, 2010 WL

1708857, at *3 (M.D. Fla. April 26, 2010).




                                         4
