     Case: 13-40151       Document: 00512631961          Page: 1     Date Filed: 05/15/2014




                             REVISED May 15, 2014

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

                                                                                  FILED
                                       No. 13-40151                           May 13, 2014
                                                                             Lyle W. Cayce
ROY ECKHARDT; YOLANDA C. ECKHARDT,                                                Clerk


                                                   Plaintiffs – Appellants
v.

QUALITEST PHARMACEUTICALS, INCORPORATED; WYETH,
INCORPORATED, individually and as Successor-in-Interest to A.H. ROBINS
COMPANY, INCORPORATED and AMERICAN HOME PRODUCTS;
SCHWARZ PHARMA, INCORPORATED; VINTAGE PHARMACEUTICALS,
L.L.C.,

                                                   Defendants – Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas


Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
       The plaintiff, Roy Eckhardt, 1 appeals the judgment of the district court
dismissing his claims again Wyeth and Schwarz Pharma (together, the “Brand
Defendants”) under Rule 12(b)(6) and granting summary judgment to



       1Although both Roy and Yolanda Eckhardt are plaintiffs in this case, this opinion will
treat Roy Eckhardt as the sole plaintiff because all of the claims before us arise out of Roy’s
use of metoclopramide.
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Qualitest Pharmaceuticals and Vintage Pharmaceuticals (together, the
“Generic Defendants”). Eckhardt alleges that as a result of his prolonged use
of the drug metoclopramide, he developed tardive dyskinesia, a severe
neurological disorder. Eckhardt brought various products liability and general
tort claims against the Brand Defendants – who initially developed and
received FDA approval for metoclopramide – and the Generic Defendants –
who manufactured and sold the product that Eckhardt used. Because we hold
that Eckhardt’s claims against both the Brand and the Generic Defendants are
all either preempted, not adequately pleaded, or not recognized under Texas
law, we AFFIRM the judgment of the district court.
                                      I.
      In order to provide the necessary background regarding Eckhardt’s
claims and the defenses asserted, we will begin with a general discussion of
the FDA approval process for pharmaceuticals and a brief history of
metoclopramide specifically. We then turn to Eckhardt’s factual allegations.
                                     A.
      Before a manufacturer can market a new drug, the FDA must approve
“that it is safe and effective and that the proposed label is accurate and
adequate.” PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2574 (2011). In 1984,
through   the   Hatch-Waxman     Amendments,      Congress    modified    these
procedures for generic drug manufacturers, creating an expedited process for
approving generic drugs.    See Drug Price Competition and Patent Term
Restoration Act of 1984, Pub. L. 98-417, 98 Stat. 1585 (codified in scattered
sections of 21 and 35 U.S.C.). In essence, these amendments allow a generic
drug manufacturer to piggy-back on the FDA approval of a brand name drug –
greatly accelerating the process for receiving approval – provided that the
generic drug has active ingredients and labeling identical to that of the FDA-
approved brand name drug. Mensing, 131 S. Ct. at 2574 & n.2.
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      After the generic drug receives approval, the generic manufacturer is
prohibited from making changes to the drug itself or from unilaterally
changing the drug’s label. See Mutual Pharmaceutical Co., Inc. v. Bartlett, 133
S. Ct. 2466, 2471 (2013).     In receiving FDA approval for their generic
metoclopramide, the Generic Manufacturers used this expedited process.
      Metoclopramide was first approved by the FDA in 1980 under the brand
name Reglan for use in treating various gastrointestinal problems by speeding
the movement of food through the digestive track. Since 1985, when Reglan’s
patent exclusivity expired, several companies have manufactured a generic
version of the drug. Beginning in 1985, the label for metoclopramide was
modified to warn that “tardive dyskinesia . . . may develop in patients treated
with metoclopramide,” and the package insert included with the drug indicated
that “therapy longer than 12 weeks has not been evaluated and cannot be
recommended.” Mensing, 131 S. Ct. at 2572 (citing Physician’s Desk Reference
1635–36 (41st ed. 1987)).        In 2004, brand-name manufacturers of
metoclopramide requested that the FDA approve a change to the labeling of
metoclopramide to state that therapy using the drug should not exceed twelve
weeks.   The FDA granted the request.       Subsequently, in 2009, the FDA
mandated that a “black box” warning – the strongest warning the FDA can
mandate on a drug – be added to metoclopramide making clear the risk of
developing tardive dyskinesia.
                                      B.
      From late 2007 until at least July 2009, Eckhardt’s physician prescribed
Reglan, the brand name for metoclopramide, to treat his gastrointestinal
problems. When filling this prescription, Eckhardt’s pharmacy substituted a
less-expensive generic version of metoclopramide manufactured by the Generic
Defendants.   It is undisputed that Eckhardt never used metoclopramide


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manufactured by the Brand Defendants. As a result of his prolonged use of
metoclopramide, Eckhardt alleges that he developed tardive dyskinesia.
      In 2011, Eckhardt filed        his     original complaint against      Endo
Pharmaceutical Holdings and Qualitest. The complaint asserted causes of
action for negligence, strict liability, breach of implied warranties,
misrepresentation, fraud, and under the Texas Deceptive Practices –
Consumer Protection Act. In June 2011, Eckhardt amended his complaint to
add Wyeth and Schwarz as defendants, alleging misrepresentations by them
to the medical community in their status as owners of the marketing
application for Reglan. Eckhardt and Endo later filed a stipulation of dismissal
as to the claims against Endo, and the district court granted leave to Eckhardt
to add Vintage in Endo’s place as a defendant. Eckhardt did so in his second
amended complaint. In September, the Generic Defendants moved to dismiss
for failure to state a claim. The Brand Defendants subsequently filed a motion
for summary judgment. The district court eventually granted both motions
and entered a final judgment dismissing all of Eckhardt’s claims against all
defendants.
      Eckhardt then filed a motion to alter or amend the judgment. The
district court denied the motion, and Eckhardt brought this appeal.
                                       II.
      We will first examine, de novo, the district court’s Rule 12(b)(6) dismissal
of Eckhardt’s claims against the Generic Defendants. BP Exploration Libya
Ltd. v. ExxonMobil Libya Ltd., 689 F.3d 481, 490 (5th Cir. 2012). To survive a
Rule 12(b)(6) motion, a plaintiff must plead enough facts to state a claim for
relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 127 S. Ct.
1955, 1974 (2007).
      Eckhardt brings a number of different claims against the Generic
Defendants. And although it is at times difficult to construe precisely what
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cause of action Eckhardt is asserting against the Generic Defendants, the
claims fit into one of a few categories: products liability claims, strict liability
design defect claims, failure-to-warn claims, breach of warranty claims, and
consumer protection claims. We analyze each claim in turn.
                                        A.
      Though Eckhardt fails to classify it as such, his main claim against the
Generic Defendants is a products liability claim for a failure to warn about the
dangers of metoclopramide. As the district court correctly pointed out, the
Texas Products Liability statute is intentionally broad; that is, it is written to
cover products liability claims, even in situations where the plaintiffs do not
label their claims thusly. See Tex. Civ. Prac. & Rem. Code Ann. § 82.001(2)
(“‘Products liability action’ means any action against a manufacturer or seller
for recovery of damages arising out of personal injury, death, or property
damage allegedly caused by a defective product whether the action is based in
strict tort liability, strict products liability, negligence, misrepresentation,
breach of express or implied warranty, or any other theory or combination of
theories.”).
      It is not mind-taxing to discern why Eckhardt shies from labeling his
claims as products liability claims: A products liability claim against the
Generic Defendants simply cannot succeed. In Mensing, the Supreme Court
explained the extent to which federal law regarding pharmaceuticals
preempted state laws applicable to those same products. Mensing establishes
two points relevant to Eckhardt’s claims. First, under federal law, generic
manufacturers of a prescription drug are not permitted unilaterally to change
the labeling on that drug, even if that change “strengthens” the warnings.
Mensing, 131 S. Ct. at 2575 (accepting FDA’s interpretation of regulations that
“changes unilaterally made to strengthen a generic drug’s warning label would
violate” laws requiring a generic drug label to match the brand name
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counterparts). Second, it follows that any state law tort claim that is based on
a generic manufacturer’s failure to update the labeling on its drug directly
conflicts with this federal law requirement and is therefore preempted. See id.
at 2577–78.
      Those two linked principles dispose of Eckhardt’s products liability
claims against the Generic Manufacturers: Eckhardt’s products liability claims
are premised on the Generic Defendants’ failure to warn adequately about the
dangers associated with metoclopramide. More specifically, Eckhardt alleges
that Texas state law imposed a duty on the Generic Manufacturers to provide
stronger warnings on their product. But Mensing makes clear the Generic
Defendants were estopped from unilaterally doing so under federal law. See
also Lashley v. Pfizer, Inc., Nos. 12-60861 & 12-41148, 2014 WL 661058, at *2–
3 (5th Cir. Feb. 21, 2014) (holding failure-to-warn claims in identical factual
setting preempted).    The district court’s dismissal of Eckhardt’s products
liability claims against the Generic Defendants was therefore proper.
                                      B.
      Moving next to Eckhardt’s strict liability design defect claim, we find
that Eckhardt is again on the wrong side of the Supreme Court. In Bartlett, a
quite recent decision, the Supreme Court analyzed whether a strict liability
claim under New Hampshire law was preempted by federal law. Once again,
the Supreme Court found that the state law was trumped by the federal
regulatory regime. And while Eckhardt argues that the Texas law is different
from New Hampshire law, he simply cannot escape Bartlett’s application to
this case.
      The Court in Bartlett held that a New Hampshire strict liability claim
was preempted because, as an element of the claim, the fact-finder, in
considering the product’s labeling, was required to balance the product’s harms
and benefits. Bartlett, 133 S. Ct. at 2474–75. Because generic manufacturers
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are, as a matter of federal law, forbidden from changing the labeling of the
product regardless of the cost-benefit analysis, the Supreme Court held that
the claim was preempted. Id. at 2477.
      Eckhardt attempts to distinguish Texas law on the basis that Texas law
does not require a cost-benefit analysis as a factor in proving a strict liability
cause of action. Although this fact is true, it will not save Eckhardt’s claim.
To prove a strict liability design defect claim under Texas law as alleged here,
the plaintiff must prove that “a safer alternative design existed.” Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009). Thus, a fact finder must
not only conclude that a safer alternative design existed, but further that the
Generic Defendants breached their duty by failing to adopt that alternative
design.   But the Generic Defendants were prohibited by federal law from
changing the design of the drug, and, therefore, no alternative design existed.
As in Bartlett, the state law claim against the Generic Defendants is preempted
because the state law claim is in direct conflict with the federal law. See
Lashley, 2014 WL 661058, *3 (holding that strict liability claims under Texas
law are preempted).
                                       C.
      Eckhardt raises additional failure-to-warn claims, which are of a slightly
different kind than the products liability claims discussed above. Specifically,
Eckhardt asserts that he has alleged that the Generic Defendants failed to
provide Eckhardt or his physician with any of the FDA-approved warnings. As
failing to provide FDA-approved warnings would be a violation of both state
and federal law, this is a parallel claim that is not preempted. Nevertheless,
the district court was correct in dismissing the claim.
      Eckhardt simply does not adequately allege that the Generic Defendants
failed to provide him with FDA-approved warnings. As the district court noted,
this allegation was most clearly stated in Eckhardt’s response to the Generic
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Defendants’ motion to dismiss below. In that filing, Eckhardt alleges, “Generic
Defendants never provided Plaintiff or his physicians with ANY warning or
other information with regard to metoclopramide.” The district court held that
this was a new factual allegation that was directly contradicted by Eckhardt’s
second amended complaint. The district court interpreted the addition of a
new factual allegation as a motion to amend and denied the motion,
considering only the factual allegations in the second amended complaint. This
denial was not an abuse of discretion. See Mayeaux v. La. Health Serv. and
Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004) (“We review the district court’s
denial of leave to amend a complaint . . . for abuse of discretion).
      And looking at the factual allegations in the second amended complaint,
it is clear that this untimely factual allegation is contradicted. In the second
amended complaint, Eckhardt alleges several times that he was provided
warnings by the Generic Defendants. He has thus failed adequately to plead
the Generic Defendants’ failure to provide any information, and the argument
lacks merit.
                                        D.
      Turning to the breach of warranty claims, Eckhardt argues that the
district court failed to address these claims in its opinion.          The Generic
Defendants respond that the district court only failed to discuss these claims
because Eckhardt failed to press them in opposition to the Generic Defendants’
motion to dismiss.     Regardless of which party is correct, this court has
previously held that such breach of warranty claims are preempted. See Morris
v. PLIVA, Inc., 713 F.3d 774, 778 (5th Cir. 2013) (“A breach of warranty claim
that goes directly to the sufficiency of the generic manufacturer’s labeling is
clearly unacceptable. . . . This claim is preempted.”). This precedent makes
clear that Eckhardt’s breach of warranty claims are preempted, and thus
meritless.
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                                       E.
      Finally, Eckhardt argues that his claims under the Deceptive Trade
Practices – Consumer Protection Act (“DTPA”) should have survived the
motion to dismiss. Again, it is clear that the district court’s dismissal was
proper.   Eckhardt’s claim under the DTPA is based on the same factual
allegations as his other claims – namely, that the Generic Defendants failed
sufficiently to warn consumers of the harms associated with metoclopramide.
As discussed in the foregoing sections, the Generic Defendants’ labeling was
FDA-approved, and federal law forbade the Generic Defendants from making
any changes. Because these actions were mandated by federal law, any state
law claim based on these actions is in direct conflict with the federal law and
thus preempted. Accordingly, Eckhardt’s DTPA claim was properly dismissed.
                                      III.
      We turn now to Eckhardt’s claims against the Brand Defendants. The
district court granted summary judgment to the Brand Defendants on all of
Eckhardt’s claims. We review a grant of summary judgment de novo. Royal v.
CCC&R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013).
      As with the Generic Defendants, Eckhardt alleges a number of different
claims against the Brand Defendants and, again, the parties disagree over how
the claims should be categorized.      In the view of the Brand Defendants,
Eckhardt’s various allegations are merely superficial glosses on a products
liability action. Eckhardt denies that his complaint alleges a products liability
claim at all. Although it is clear to us that the essence of Eckhardt’s claim
sounds in products liability, we will analyze Eckhardt’s claims against the
Brand Defendants both as a single products liability claim, and as various
general tort claims.




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                                            A.
       To the extent Eckhardt raises products liability claims against the Brand
Defendants, those claims may be quickly rejected. A prior panel of this court
held that Texas products liability law does not impose liability in this exact
factual situation. Lashley, 2014 WL 661058, at *5 (“[The plaintiff] admits that
she did not ingest the Schwarz brand defendants’ product; thus, we find that
Schwarz brand defendants are not liable under Texas products liability law.”). 2
We are bound by this determination.
       In post-argument submissions, Eckhardt argues that Lashley did not
discuss the possibility that “the control Brand Defendants exercised over
metoclopramide’s design rendered them manufacturers of the metoclopramide
ingested by Plaintiff in this case for purposes of Texas product liability law.”
This contention is contradicted by the filings in Lashley. The plaintiff in
Lashley advanced this precise argument, and Lashley considered the
possibility of liability under the Texas products liability statute and rejected
any such argument. Lashley, 2014 WL 661058, *5. Thus, to the extent that
Eckhardt raises products liability claims against the Brand Defendants, the
district court properly granted summary judgment to the Brand Defendants
on those claims.
                                            B.
       Analyzing Eckhardt’s claims against the Brand Defendants as general
tort claims, we address the three causes of action he asserts: fraud, negligence,
and negligent misrepresentation.




       2Lashley was released after oral arguments were heard in this case. It was originally
released as an unpublished decision, but the Lashley panel has since granted a motion for
the opinion to be published. The opinion is thus now binding precedent for this panel.
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                                No. 13-40151
                                      1.
      Reviewing first Eckhardt’s fraud claim, we find that Eckhardt fails to
allege sufficient facts for his fraud claim to survive. In his second amended
complaint, Eckhardt provides only two factual allegations that could support a
fraud claim: (1) The predecessor in interest to Wyeth told physicians that
Reglan was safe for long-term use, and these statements were intentionally
misleading; and (2) Wyeth intentionally disseminated misleading information
about the risk of long-term ingestion of Reglan. These two allegations, without
any additional factual support in Eckhardt’s complaint, are not sufficient to
support a fraud charge under the heightened pleading standard of Rule 9. See
Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir. 2003)
(“Put simply, Rule 9(b) requires the who, what, when, where, and how to be
laid out.”) (internal quotation marks omitted). The district court’s grant of
summary judgment on these claims must therefore be affirmed.
                                      2.
      Next,   Eckhardt   advances    claims    of   negligence   and   negligent
misrepresentation against the Brand Defendants. To establish a claim for
negligence under Texas law, the plaintiff “must establish a duty, a breach of
that duty, and damages proximately caused by the breach.” Kroger Co. v.
Elwood, 197 S.W.3d 793, 794 (Tex. 2006). At this stage of the litigation, the
parties now focus their dispute on whether the Brand Defendants owe a duty
to consumers of generic versions of Brand Defendants’ drugs.
      Although Eckhardt concedes that he has never used a product
manufactured by the Brand Defendants, he argues that given the structure of
the pharmaceutical industry as a result of federal law, the Brand Defendants
owe a duty to eventual consumers of the drugs they design, even if those
consumers use a generic version of the drug. Several courts have faced this
question. Every circuit court has held (under the laws of several different
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states) that a brand-name manufacturer does not owe a duty to consumers who
use a generic version of the drug. See Schrock v. Wyeth, Inc., 727 F.3d 1273,
1285 (10th Cir. 2013) (holding that no duty is owed under Oklahoma law);
Guarino v. Wyeth, LLC, 719 F.3d 1245, 1251–52 (11th Cir. 2013) (same under
Florida law); Bell v. Pfizer, Inc., 716 F.3d 1087, 1093 (8th Cir. 2013) (same
under Arkansas law); Smith v. Wyeth, Inc., 657 F.3d 420, 423–24 (6th Cir.
2011) (same under Kentucky law); Foster v. Am. Home Prods. Corp., 29 F.3d
165, 170–71 (4th Cir. 1994) (same under Maryland law). These authorities
were recently joined by an opinion from this court. See Lashley, 2014 WL
661058, at *4–5 (finding no duty under Mississippi or Texas law).
      Lashley holds that “because [plaintiffs] did not ingest the brand
manufacturers’ products, these defendants have no common-law duty to them.”
Id. at *4. Here, Eckhardt advances the same claims, under the same state law,
against the same Brand Defendants, for the same reasons as the plaintiffs in
Lashley. We see no grounds for distinguishing this binding authority.
      Consequently, Eckhardt’s negligence claim cannot survive because the
Brand Defendants do not owe a duty to Eckhardt. And because a duty must
also exist for a claim of negligent misrepresentation to succeed, this analysis
applies equally to that claim. See Fed. Land Bank Ass’n of Tyler v. Sloane, 825
S.W.2d 439, 442 (Tex. 1991). The district court’s grant of summary judgment
to the Brand Defendants on these claims is therefore affirmed.
                                     IV.
      We sum up: We hold that Eckhardt’s products liability claims against
the Generic Defendants are preempted under the holdings and reasoning of
Mensing and Bartlett, and that Eckhardt has failed to adequately plead any
parallel claims. Similarly, we hold that Eckhardt’s claims against the Brand
Defendants fail because Eckhardt did not use the Brand Defendants’ products
and because Texas does not recognize a duty to a consumer who uses a
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competitor’s products. For those reasons, the judgment of the district court
dismissing Eckhardt’s claims against the Generic Defendants and granting
summary judgment to the Brand Defendants is AFFIRMED.
                                                                 AFFIRMED.




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