09-3723-cv
Dean v. Eli Lilly & Co.



                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING TO A SUM M ARY ORDER M UST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 16 th day of July, two thousand ten.

PRESENT:         REENA RAGGI,
                 GERARD E. LYNCH,
                 DENNY CHIN,
                         Circuit Judges.
-----------------------------------------------------
DWIGHT L. DEAN,

                           Plaintiff-Appellant,

                      v.                                                    No. 09-3723-cv

ELI LILLY & CO.,

                         Defendant-Appellee.
-----------------------------------------------------
APPEARING FOR APPELLANT:                          JORDAN M. KIRBY, The Ferraro Law Firm,
                                                  P.A., Miami, Florida.

APPEARING FOR APPELLEE:                           ERIC ROTHSCHILD (Nina M. Gussack, Andrew
                                                  R. Rogoff, on the brief), Pepper Hamilton, LLP,
                                                  Philadelphia, Pennsylvania.
       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Jack B. Weinstein, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the July 1, 2009 judgment of the district court is AFFIRMED.

       Plaintiff Dwight L. Dean appeals from an award of summary judgment in favor of

defendant Eli Lilly & Co. (“Lilly”) in this diversity action for personal injury damages

allegedly caused by Zyprexa, an antipsychotic medication manufactured by Lilly. We review

such a ruling de novo, “resolving all ambiguities and drawing all permissible factual

inferences in favor of the party against whom summary judgment is sought.” Burg v.

Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal quotation marks omitted). In doing so, we

assume familiarity with the facts and procedural history, which we reference only as

necessary to explain our decision to affirm.

       Dean, who suffers from schizophrenia, was prescribed Zyprexa first in September

1998, and almost continuously from June 2002 until October 2006, when he was diagnosed

with diabetes. Dean asserts that Zyprexa caused his diabetes and that he would not have been

prescribed Zyprexa had Lilly properly warned of the drug’s dangers.

       To prevail on his failure-to-warn claim under Florida law,1 Dean must demonstrate



       1
         It is undisputed that Florida law governs this action, which arises from events
occurring in Florida and was transferred to the Eastern District of New York pursuant to an
order of the Judicial Panel on Multidistrict Litigation.

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both that Lilly failed to provide an adequate warning “of dangers inherent in the use” of

Zyprexa, Zanzuri v. G.D. Searle & Co., 748 F. Supp. 1511, 1514 (S.D. Fla. 1990), and that

the omission was the proximate cause of his injury, see Christopher v. Cutter Labs., 53 F.3d

1184, 1191 (11th Cir. 1995); Beale v. Biomet, Inc., 492 F. Supp. 2d 1360, 1365 (S.D. Fla.

2007). Dean faults the district court’s reliance on the “learned intermediary” doctrine to

support its conclusion that Dean could not make such a showing. See Zanzuri v. G.D. Searle

& Co., 748 F. Supp. at 1514-15 (collecting cases demonstrating Florida’s adherence to

doctrine under which “manufacturer of a prescription drug discharges its duty to warn by

providing an adequate warning to the prescribing physician”).

       Upon de novo review, we agree with the district court that Lilly is entitled to the

learned intermediary defense as a matter of law. Dean’s physician, Dr. Roger Rousseau,

testified that, when he first prescribed Zyprexa to Dean in June 2002, he was aware of a link

between the drug and diabetes:

       Q:     And then does the weight gain relate to the risk of other potential
              consequences?
       A:     Yes, sir.
       Q:     What are they?
       A:     Well, obesity, you know, diabetes; those.
       :
       Q      Okay. So is that what you were looking to see whether [Dean] was
              experiencing at that time, when you first prescribed Zyprexa?
       A:     Yes.




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Rousseau Dep. at 34-35.2 Dr. Rousseau testified further that nothing he learned after 2002

caused him to second-guess his decisions about Dean’s treatment. Id. at 54-55. This

testimony is sufficient to demonstrate that Dr. Rousseau had “actual knowledge of the

substance of the alleged warning and would have taken the same course of action even with

the information the plaintiff contends should have been provided.” Beale v. Biomet, 492 F.

Supp. 2d at 1371 (internal quotation marks omitted). Such evidence breaks the causal chain

between the purported inadequacy of Lilly’s warnings and the alleged injury to Dean.

       Dean nevertheless contends that his case falls within an exception to the learned

intermediary doctrine applicable where “overpromotion of a product negates any warnings.”

Id. at 1377.3 We are not persuaded. Although the record reflects a vigorous sales campaign

for Zyprexa aimed at Dr. Rousseau, Dean points to no evidence that Lilly’s salespeople either

misled Dr. Rousseau about the link between Zyprexa and diabetes or caused Dr. Rousseau

to prescribe Zyprexa to Dean. Cf. id. (collecting cases in which sales representatives “made

the drug appear much safer than it actually was”); In re Zyprexa Prods. Liab. Litig., 489 F.

Supp. 2d 230, 252-54 (E.D.N.Y. 2007) (describing outright denial by Lilly salespeople of


       2
         Dean does not challenge the district court’s determination that he failed to raise a
triable question of fact as to whether an alternate warning would have caused Dr. Fernando
Mendez-Villamil, who prescribed Zyprexa to Dean between 1998 and 2002, to do otherwise.
       3
         Although Beale discusses overpromotion, neither it nor any other Florida case cited
to this court actually applies the exception. Assuming arguendo that the exception is
recognized in Florida law, we conclude, for the reasons explained in text, that it does not
apply here.

                                             4
Zyprexa-diabetes link). Rather, the evidence indicates that Dr. Rousseau’s prescription of

Zyprexa for Dean was based on Dean’s prior success on the drug, the expressed wishes of

Dean’s family, and Dr. Rousseau’s own assessment of Dean’s needs. Thus, even if an

overpromotion exception to the learned intermediary doctrine exists under Florida law, it

does not apply here because no record evidence indicates that overpromotion induced

prescription of Zyprexa to Dean. See Beale v. Biomet, 492 F. Supp. at 1377.

      We have considered Dean’s remaining arguments on appeal, and we conclude that

they are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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