     Case: 10-20485 Document: 00511405136 Page: 1 Date Filed: 03/09/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            March 9, 2011

                                     No. 10-20485                           Lyle W. Cayce
                                   Summary Calendar                              Clerk




CHARLES THURSTON,

                                                   Plaintiff - Appellant

v.

MERCK AND COMPANY INC.

                                                   Defendant - Appellee




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CV-3629



Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Charles Thurston appeals the dismissal of his complaint alleging he
suffered muscle damage from the cholesterol-reducing drug Zocor. He says he
learned that his injuries were possible side effects of the drug from various
websites and that, had he known of these possible side effects in advance, he



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-20485 Document: 00511405136 Page: 2 Date Filed: 03/09/2011


                                 No. 10-20485

would not have taken the drug. He has not pointed to any medical evidence
confirming his alleged injuries or connecting them to his use of the drug.
      Even if Thurston could show he was injured by Zocor, the district court
correctly dismissed Thurston’s complaint under Rule 12(b)(6) for failure to state
a claim upon which relief can be granted. The FDA-approved warning label for
Zocor lists both “myopathy” (muscle damage) and “rhabdomyolysis” (a form of
myopathy affecting skeletal muscle tissue) as known side effects. Thurston’s
failure-to-warn claim fails because Texas law provides that an FDA-approved
warning label is presumed to be an adequate warning, T EX. C IV. P RAC. & R EM.
C ODE § 82.007(a), unless the plaintiff can satisfy one of five enumerated
exceptions, id. § 82.007(b). Thurston’s complaint does not plead facts sufficient
to meet any of the exceptions.
      AFFIRMED.




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