     Case: 13-50404   Document: 00512642732   Page: 1   Date Filed: 05/27/2014




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

                               No. 13-50404
                                                                            Fifth Circuit

                                                                          FILED
                                                                      May 27, 2014

THOMAS W. MCKAY; LETICIA MCKAY,                                      Lyle W. Cayce
                                                                          Clerk
                                         Plaintiffs – Appellants
v.

NOVARTIS PHARMACEUTICAL CORPORATION,

                                         Defendant – Appellee




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


Before WIENER, ELROD, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      Thomas and Leticia McKay’s lawsuit against Novartis Pharmaceutical
Corporation (“Novartis”) has spanned eight years and two forums. Originally
filed by Thomas McKay in the Western District of Texas, this case was
transferred by the Judicial Panel on Multidistrict Litigation (“MDL”) to the
Middle District of Tennessee in May 2006 as part of the ongoing multidistrict
litigation involving, inter alia, two drugs manufactured and distributed by
Novartis. The MDL court granted partial summary judgment for Novartis and
made two significant rulings: (1) Texas law applied to the McKays’ case, and
(2) Tex. Civ. Prac. & Rem. Code § 82.007(a)—which provides manufacturers a
rebuttable presumption against liability for failing to warn—foreclosed the
McKays’ failure to warn claims. On remand, the district court in Texas (the
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                                     No. 13-50404
“remand court”) granted summary judgment on the McKays’ remaining claims.
Concluding that neither court erred, we AFFIRM.
                                            I.
       As part of Thomas McKay’s treatment for prostate cancer, he took two
drugs—Aredia and Zometa. Novartis manufactures both drugs and markets
them accompanied by warnings approved by the FDA. In 2006, McKay sued
Novartis in the Western District of Texas. He alleged that Aredia and Zometa
caused him to develop “osteonecrosis of the mandible or jaw bone [sic].” As a
result of this condition, McKay has lost a number of teeth, has a large, exposed
bone protruding through his gums, and has undergone many corrective
surgeries on his jawbone. His complaint faults Novartis for, among other
things, failing to notify the public and physicians of “the possibility of suffering
osteonecrosis of the jaw” until 2004, and failing to notify dental professionals
until 2005. McKay’s claims sound in strict liability, negligence, breach of
express warranty, and breach of implied warranty. McKay subsequently
amended his complaint to add his wife, Leticia McKay as a plaintiff and to add
claims for failure to warn and loss of consortium.
      In June 2008—almost a year and a half after the McKays amended their
complaint—Novartis moved for partial summary judgment on the McKays’
failure to warn claims in the MDL court. 1 Novartis relied on Tex. Civ. Prac. &
Rem. Code § 82.007(a), which provides defendant manufacturers a rebuttable
presumption against liability when plaintiffs assert failure to warn claims
involving drugs accompanied by FDA-approved warnings.
      The MDL court granted Novartis’s motion for partial summary
judgment. First, the MDL court applied the transferor forum’s choice of law



      1  Novartis also moved for partial summary judgment on eight other Texas plaintiffs’
failure to warn claims.
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                                     No. 13-50404
rules (Texas) to determine that Texas substantive law governed the McKays’
case. Second, the MDL court denied the McKays’ Federal Rule of Civil
Procedure 56(d) 2 motion for additional discovery on the choice of law issue
because “McKay has not shown that, for specified reasons, he cannot present
facts essential to justify his position concerning the choice of substantive law
applicable to his claims.” Finally, the MDL court applied § 82.007(a)’s
rebuttable presumption and granted partial summary judgment on the
McKays’ failure to warn claims. The MDL court recognized that the FDA
approved the warnings accompanying Aredia and Zometa and that “[n]either
side claims that any of the specifically enumerated ways to rebut the
presumption applies in this instance except subsection (b)(1).” Section
82.007(b)(1) provides that a plaintiff may rebut § 82.007(a)’s presumption
against liability if     the plaintiff establishes, among other things, that a
defendant “withheld from or misrepresented to the United States Food and
Drug Administration required information that was material and relevant to
the performance of the product and was causally related to the claimant’s
injury.” § 82.007(b)(1). Correctly anticipating our decision in Lofton v. McNeil
Consumer & Specialty Pharmaceuticals, 672 F.3d 372 (5th Cir. 2012), the MDL
court held that federal law preempted one application of § 82.007(b)(1). See
Lofton, 672 F.3d at 380 (holding that § 82.007(b)(1) is preempted “unless the
FDA itself has found fraud”). The MDL court granted summary judgment on
the McKays’ claims premised on Novartis’s “failure to provide adequate
warnings or information,” holding them precluded by § 82.007(a)’s unrebutted
presumption.




      2 Rule 56(f) has been recodified “without substantial change” as Rule 56(d). See Sapp
v. Mem’l Hermann Healthcare Sys., 406 F. App’x 866, 869 (5th Cir. 2010).
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                                  No. 13-50404
      On May 22, 2011—almost three years after the MDL court’s summary
judgment ruling—the McKays moved the MDL court to reconsider under Rule
60(b)(6). The MDL court denied the McKays’ motion because their purportedly
“new” evidence was available prior to discovery and had been available long
before the McKays filed their Rule 60(b) motion. On August 23, 2011, the MDL
Panel remanded the case to the Western District of Texas.
      On remand, Novartis recognized that “[t]he MDL court’s order did not
specify the particular counts from each case’s complaint that were resolved by
its order,” and moved for summary judgment on the McKays’ remaining claims
“because they all involve the adequacy of [Novartis’s] warnings or
information.” 3 The “remand court” interpreted the MDL court’s order as
deciding that § 82.007(a)’s presumption applied to the McKays’ complaint,
leaving open only “which of Plaintiff’s claims rest on allegations that Novartis
failed to warn of Aredia and Zometa’s dangerous side effects.” Noting that it
would “not disturb or revisit the findings made by the MDL court,” the remand
court recognized that if any of the McKays’ remaining claims were premised
on inadequate warnings, then they did not survive the MDL court’s ruling.
      The remand court rejected the McKays’ attempt to rebut § 82.007’s
presumption under § 82.007(b)(3)–(5) by providing evidence of off-label
promotion because the McKays did not make this argument in the MDL court
and the MDL court’s prior ruling was the law of the case. Alternatively, the
remand court held that the McKays’ evidence did not create a genuine issue of
fact on off-label promotion. The remand court next rejected the McKays’
argument that, Lofton requires that § 82.007 be struck. Again, the remand
court held that the MDL court had already decided the applicability of



      3Novartis, however, had explicitly moved for summary judgment in the MDL court
on Counts I, II, III, IV, and V, and the MDL court granted Novartis’s motion.
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                                No. 13-50404
§ 82.007(a)’s rebuttable presumption but alternatively found that the
remaining provisions of § 82.007 were severable from § 82.007(b)(1)’s invalid
application.
      The remand court then held that most of the McKays’ remaining claims
were premised on Novartis’s failure to warn and therefore were precluded by
§ 82.007(a)’s presumption against liability, as decided by the MDL court.
Although it determined that the McKays’ breach of warranty claims were not
premised on inadequate warnings, the remand court nevertheless granted
summary judgment on these claims because the McKays failed to provide
Novartis with statutorily required notice. Finally, having dismissed all of the
underlying claims, the remand court granted Novartis summary judgment on
the McKays’ loss of consortium claim. This appeal followed.
                                      II.
      The McKays assert on appeal that the MDL court abused its discretion
by denying their Rule 56(d) motion to continue summary judgment and by
“subsequently . . . refusing to apply the overwhelming facts to that decision.”
The McKays also fault the remand court for refusing to consider evidence of
off-label promotion under § 82.007(b)(3) and rejecting their argument that
§ 82.007 should be struck down in its entirety. Finally, they contend that the
remand court erred when it granted summary judgment on their breach of
warranty claims.
                                      A.
      We begin with the McKays’ appeal of the MDL court’s denials of their
Rule 56(d) and Rule 60(b) motions.




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                                 No. 13-50404
                                        1.
      In opposition to Novartis’s motion for summary judgment in the MDL
court, the McKays disputed the application of Texas substantive law to their
claims. They filed a Rule 56(d) motion for additional time to discover McKay’s
own medical records in order to adequately brief which state has the “most
significant relationship” to the litigation. The MDL court denied the McKays’
Rule 56(d) motion because the information that the McKays requested—
information concerning Thomas McKay’s own treatment—was already
available to them:
      The information concerning McKay’s infusions, prescriptions and
      other treatments, however, is available to McKay without any
      need for formal discovery. Indeed, that information became
      available to McKay when the infusions, prescriptions and
      treatments occurred. The issues concerning where and how
      Plaintiff McKay’s injuries occurred involve information in the
      possession of McKay and his treating health care providers, and
      there has been no showing that anything prevented Plaintiff from
      obtaining that information before he filed this action or, more
      specifically, in response to Defendant’s Motion.
On appeal, the McKays contend that this ruling was an abuse of discretion
because Thomas McKay did not have his medical records at the time of
discovery, and because discovery was stayed.
      We review a denial of a Rule 56(d) motion for abuse of discretion. Am.
Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir.
2013). Rule 56(d) provides:
      If a nonmovant shows by affidavit or declaration that, for specified
      reasons, it cannot present facts essential to justify its opposition,
      the court may: (1) defer considering the motion or deny it; (2) allow
      time to obtain affidavits or declarations or to take discovery; or (3)
      issue any other appropriate order.
Rule 56(d) motions are “broadly favored and should be liberally granted.” Raby
v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010). The Rule 56(d) movant “must

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                                 No. 13-50404
set forth a plausible basis for believing that specified facts, susceptible of
collection within a reasonable time frame, probably exist and indicate how the
emergent facts, if adduced, will influence the outcome of the pending summary
judgment motion.” Id. (quoting C.B. Trucking, Inc. v. Waste Mgmt. Inc., 137
F.3d 41, 44 (1st Cir. 1998)). If the requesting party “has not diligently pursued
discovery, however, she is not entitled to relief” under Rule 56(d). Beattie v.
Madison Cnty. Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001).
      The MDL court “acted within its discretion in concluding that [the
McKays] had not pursued discovery diligently enough to warrant relief under”
Rule 56(d). Beattie, 254 F.3d at 606. McKay did not need formal discovery to
request his own medical records; therefore, it is of no moment that discovery
was stayed at the time of summary judgment. See, e.g., St. Bernard Parish v.
Lafarge N. Am., Inc., No. 13-30030, 2013 WL 6671807, at *2 (5th Cir. Dec. 19,
2013) (unpublished) (“The discovery needed by the Parish—its own final expert
testimony—was not dependent on the defendant but rather facts and reports
completely within its control.”). The fact that the McKays sought formal
discovery of evidence that was available to them through informal means is
what distinguishes this case from Xerox Corp. v. Genmoora Corp., where the
evidence requested was in the hands of the opposing party. 888 F.2d 345, 354
(5th Cir. 1989) (noting that the requested discovery “must come largely, if not
entirely, from the ex-directors”). Moreover, McKay filed this suit in 2006, and
Novartis did not move for summary judgment until 2008. This two-year period
calls into question the McKays’ attempt to frame Novartis’s motion as a
“surprise summary judgment.” See, e.g., Beattie, 254 F.3d at 606 (requesting
party did not diligently pursue discovery as to gain Rule 56(d) relief when she




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                                      No. 13-50404
“had several months, from the time she sued, to depose the board members,
who are named defendants”). 4
       “A district court has broad discretion in all discovery matters, and such
discretion will not be disturbed ordinarily unless there are unusual
circumstances showing a clear abuse.” Kelly v. Syria Shell Petroleum Dev. B.V.,
213 F.3d 841, 855 (5th Cir. 2000) (internal quotation marks omitted). The MDL
court did not clearly abuse its discretion here.
                                             2.
       The McKays next fault the MDL court for “not correcting the [Rule 56(d)]
error when, discovery in hand, Plaintiff moved for reconsideration” under Rule
60(b)(6) almost three years after the MDL court granted partial summary
judgment. In their Rule 60(b)(6) motion, the McKays insisted that “new
evidence revealed through discovery, and unavailable in the Plaintiff’s medical
records, demonstrates convincingly that California law should be applied to
Plaintiff’s failure to warn claim.” The MDL court denied their motion.
       The McKays moved under Rule 60(b), but “[b]y its own terms, Rule 60(b)
is limited to relief from a ‘final’ judgment or order.” Zimzores v. Veterans



       4  Because Appellants were not diligent, we need not address whether they have shown
that their additional discovery would have created a genuine issue of fact. Beattie, 254 F.3d
at 606; St. Bernard Parish, 2013 WL 6671807, at *2–3 (holding that district court did not
abuse its discretion and recognizing that “[b]ecause the Parish did not diligently pursue the
discovery it needed to prosecute its claims, we need not address why the Parish needed
additional discovery to create a genuine issue of fact”). Nevertheless, the MDL court did
account for McKay’s purported connections outside of Texas when deciding the choice of law
issue:
        McKay asserts that he received some of his Aredia and Zometa doses in
        California, and his dentist is in Mexico. McKay does not dispute that he has
        lived in Texas since at least 1987. McKay does not dispute that numerous
        Texas physicians have evaluated and/or treated him for prostate cancer.
        McKay also admits that several Texas physicians have prescribed and/or
        administered Aredia and/or Zometa to him.
Even considering the McKays’ assertions about the location of his treatment, then, the MDL
court found Texas law applicable.
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                                        No. 13-50404
Admin., 778 F.2d 264, 266 (5th Cir. 1985). “Interlocutory orders,” such as
grants of partial summary judgment, “are not within the provisions of 60(b),
but are left within the plenary power of the court that rendered them to afford
such relief from them as justice requires.” Id.; see also Bon Air Hotel, Inc. v.
Time, Inc., 426 F.2d 858, 862 (5th Cir. 1970) (noting that an “interlocutory
order” is “not subject to being vacated under Rule 60(b)”). 5 Rule 54(b) provides
that interlocutory orders may be “revised at any time before the entry of a
judgment adjudicating all the claims and all the parties’ rights and liabilities.”
Fed. R. Civ. P. 54(b). “The standard for reviewing the vacation of an
interlocutory order is hence not whether the stringent Rule 60(b) requirements
are met, but is rather whether the district court abused its discretion.”
Zimzores, 778 F.2d at 267. The McKays therefore argue that it is “an abuse of
discretion to refuse to reexamine an interlocutory order when the evidence is
clear it was erroneous.” See, e.g., Xerox, 888 F.2d at 355–57.




       5   Even if Rule 60(b) were a proper vehicle to attack the prior grant of partial summary
judgment, the McKays’ motion was procedurally defective for other reasons. For instance,
“relief under 60(b)(6) is mutually exclusive from relief available under sections (1)-(5),”
Hesling v. CSX Transp. Inc., 396 F.3d 632, 643 (5th Cir. 2005), and Rule 60(b)(2) provides an
avenue of relief for when a party has “newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a new trial under Rule 59(b).”
Fed. R. Civ. P. 60(b)(2). Therefore, it was improper for the McKays to utilize Rule 60(b)(6) to
introduce newly discovered evidence because, as discussed, reasonable diligence would have
led to its discovery. The McKays’ Rule 60(b)(6) motion is also defective because had the
McKays filed a Rule 60(b)(2) motion it would have been untimely. Fed. R. Civ. P. 60(c)(1)
(providing that motions under Rule 60(b)(2) must be filed “no more than a year after the entry
of the . . . order”); see Wilson v. Johns Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989)
(“We have held that [r]elief under subsection (6) is not available to a movant where . . . the
relief sought would have been, if not for the Rule’s time limits, within the coverage of another
of the subsections of the Rule.” (internal quotations omitted)). Moreover, the district court
faulted the McKays for filing their Rule 60(b)(6) motion over 18 months after the allegedly
unavailable deposition testimony became available. A district court is provided wide
discretion in determining whether a Rule 60(b) motion is filed within a reasonable time, and
“[w]hat constitutes a reasonable time under Rule 60(b) depends on the particular facts of the
case in question.” First RepublicBank Fort Worth v. Norglass, Inc., 958 F.2d 117, 119 (5th
Cir. 1992).
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                                  No. 13-50404
      The MDL court’s application of Texas choice of law principles, however,
was not clearly erroneous, and its refusal to reconsider its ruling was not an
abuse of discretion. “Texas uses the Restatement’s ‘most significant
relationship’ test to decide choice-of-law issues.” Torrington Co. v. Stutzman,
46 S.W.3d 829, 848 (Tex. 2000). Factual matters to be considered when
determining which state has the “most significant relationship” include where
the injury occurred, where the conduct causing the injury occurred, where the
parties reside, and where the parties’ relationship is centered. Gutierrez v.
Collins, 583 S.W.2d 312, 318 (Tex. 1979).
      McKay’s connection to Texas is manifest in the record. First, he is a
Texas citizen who resides in Texas. Second, “McKay does not dispute that
numerous Texas physicians have evaluated and/or treated him for prostate
cancer.” Third, “McKay also admit[ted] that several Texas physicians have
prescribed and/or administered Aredia and/or Zometa to him.” Fourth, McKay
would have Zometa shipped to his house in Texas. Fifth, a majority of McKay’s
Aredia and Zometa infusions took place in Texas. Finally, McKay’s jaw
condition manifested in Texas. The McKays do not dispute these Texas
connections, but assert on appeal that they are outweighed by the evidence
showing that a California physician, Dr. Leibowitz, prescribed and treated him
in California, “[a]lmost all infusions of Aredia and Zometa were purchased in
California and his entire medical course was directed from there,” and McKay
“received the bulk of his infusions [in California].”
      McKay’s contacts with Dr. Leibowitz do not override his Texas
connections to make application of Texas law clearly erroneous. See, e.g.,
Guillory on Behalf of Guillory v. United States, 699 F.2d 781, 784–86 (5th Cir.
1983) (noting that “the district court should have placed great weight upon the
fact that Louisiana citizens were involved in this case” in making a choice of
law inquiry, and recognizing that a state has a “strong interest in insuring that
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                                       No. 13-50404
its citizens and residents are adequately compensated for others’ tortious
conduct”). Although McKay received some of his treatment in California, and
Dr. Leibowitz dictated the progression of McKay’s prescriptions there, it is
undisputed that McKay resided in Texas and received treatment multiple
times in Texas, and that his condition manifested itself in Texas. The district
court did not clearly err by determining that Texas had the most significant
relationship to the occurrence in question. See, e.g., Caton v. Leach Corp., 896
F.2d 939, 943 (5th Cir. 1990) (“Texas has a significant interest in remedying
civil injury to Texas citizens through tort liability and also in defining the outer
limits of tort liability.”). Thus, the McKays’ evidence is not an “overwhelming
showing” allowing the MDL court to know “positively . . . that [its] earlier grant
of summary judgment could no longer be justified.” Xerox, 888 F.2d at 356. 6
                                              B.
       As noted above, Novartis recognized on remand that “[t]he MDL court’s
order did not specify the particular counts from each case’s complaint that were
resolved by its order,” and moved for summary judgment on the McKays’
remaining claims “because they all involve the adequacy of [Novartis’s]
warnings or information.” The remand court recognized that “the adequacy of
the Novartis’ warnings has been previously litigated and decided by the MDL
court”; therefore, it held that the MDL court’s ruling that § 82.007(a)’s




       6  The McKays do not contend on appeal that the MDL court’s choice-of-law
determination was incorrectly decided when it issued its original order. Although their notice
of appeal references the MDL court’s grant of partial summary judgment, their brief asserts
error only in the Rule 56(d) denial and the MDL court’s failure to reconsider the partial
summary judgment grant in light of the new evidence presented in their Rule 60(b) motion.
“[A]n appellant abandons all issues not raised and argued in its initial brief on appeal,” Webb
v. Investacorp, Inc., 89 F3d 252, 257 n.2 (5th Cir. 1996), and “[w]e have held repeatedly that
we will not consider issues not briefed by the parties.” Johnson v. Sawyer, 120 F.3d 1307,
1315 (5th Cir. 1997).
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                                      No. 13-50404
presumption against liability precluded all of the McKays’ counts premised on
Novartis’s failure to warn.
       The McKays insisted that the remand court erred by refusing to consider
two new arguments it made to the remand court regarding § 82.007(a)’s
presumption. First, the McKays asserted that they could rebut the
presumption by providing evidence of off-label promotion under § 82.007(b)(3). 7
Second, they argued that Lofton’s holding that federal law preempted one
application of § 82.007(b)(1) required the invalidation of § 82.007’s remaining
provisions. 8 We have instructed that when “reviewing transferee court
decisions under the law of the case doctrine, transferor courts should rarely
reverse, because any widespread overturning of transferee court decisions
would frustrate the principle aims of the MDL process and lessen the system’s
effectiveness.” In re Ford Motor Co., 591 F.3d 406, 411 (5th Cir. 2009). “The
law of the case doctrine requires that courts not revisit the determinations of
an earlier court unless (i) the evidence on a subsequent trial was substantially
different, (ii) controlling authority has since made a contrary decision of the



       7  Section 82.007(b)(3) provides that a claimant may rebut the presumption by
establishing that:
               (A) the defendant recommended, promoted, or advertised the
               pharmaceutical product for an indication not approved by the United
               States Food and Drug Administration; (B) the product was used as
               recommended, promoted, or advertised; and (C) the claimant’s injury
               was causally related to the recommended, promoted, or advertised use
               of the product.
        8 The McKays do not argue on appeal that the MDL court’s grant of partial summary

judgment and subsequent denial of their motion for reconsideration were erroneous because
of their arguments concerning § 82.007(b)(3) and § 82.007(a)’s severability. This is because
they did not make these arguments to the MDL court when opposing summary judgment or
moving for reconsideration. See Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir.
2005) (“If a party fails to assert a legal reason why summary judgment should not be granted,
that ground is waived and cannot be considered or raised on appeal.”). Because they do not
challenge the underlying summary judgment ruling on these issues, the McKays’ appeal on
these grounds is confined to the remand court’s refusal to countenance their new arguments
under the law of the case.
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                                  No. 13-50404
law applicable to such issues, or (iii) the decision was clearly erroneous and
would work . . . manifest injustice.” Id. at 411–12 (internal quotations omitted);
see also Loumar, Inc. v. Smith, 698 F.2d 759, 762 (5th Cir. 1983) (Rubin, J.)
(“The law of the case doctrine is closely related to the principle of res judicata.
The latter prevents collateral attack on the result of a completed lawsuit
between the same parties; the former prevents collateral attacks against the
court’s rulings during the pendency of a lawsuit.”).
      Indeed, the McKays conceded to the remand court that the law of the
case applied: “The Court may hold the striking of the failure to warn count III
is the law of the case and need not revisit it, but to the extent the remaining
claims have elements of failure to warn as part of their make up or because of
a Novartis defense . . . they ought not be dismissed as there is evidence of off-
label promotion to Mr. McKay’s prescribers.” This concession is more
determinative than the McKays perceive because the MDL court did not limit
its summary judgment to Count III of the McKays’ complaint. Instead, the
MDL court held that all of the McKays’ claims premised on Novartis’s “failure
to provide adequate warnings or information” were precluded under
§ 82.007(a)’s unrebutted presumption. The McKays’ acknowledgment that
§ 82.007(a)’s presumption was unrebutted as to Count III necessarily assumes
that none of the avenues to rebut the presumption in § 82.007(b) applied and
that § 82.007 is severable from § 82.007(b)(1)’s invalid application. Put another
way, if § 82.007’s presumption applied to one of the McKays’ failure to warn
counts, it would necessarily apply to the remainder of their claims premised on
failure to warn. The remand court was correct not to revisit § 82.007(a)’s
applicability and to decide only which of the McKays’ claims were premised on
Novartis’s failure to provide adequate warnings or information.
      Even without the McKays’ concession, the remand court did not clearly
err or abuse its discretion when it applied the law of the case. See In re Ford
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                                       No. 13-50404
Motor, 591 F.3d at 412 (“Because the transferor court should have recognized
[the MDL court’s] serious error, its decision not to vacate its decision regarding
FNC was also clearly erroneous.”); see also Williams v. Bexar Cnty., Tex., No.
98-51187, 2000 WL 1029171, at *2 (5th Cir. July 14, 2000) (unpublished) (“We
therefore review the decision by a trial judge to reconsider a prior trial judge’s
interlocutory ruling for abuse of discretion.”). First, the McKays have not
established that the evidence before the remand court was substantially
different than that before the MDL court. As to their § 82.007(b)(3) argument
to the remand court, the McKays rely on testimony from Dr. Aboud taken on
October 20, 2009, Dr. Valilis taken on October 22, 2009, and Dr. Leibowitz
taken on October 29, 2009. 9 This testimony was available to the McKays
almost two years before they filed their May 22, 2011 motion asking the MDL
court to reconsider its partial summary judgment order. Because this evidence
was available when the McKays moved the MDL court to reconsider its ruling
on § 82.007, the evidence available in the remand court was not substantially
different.
       Second, because Lofton affirmed the MDL court’s interpretation of
§ 82.007, the McKays do not argue that there was an intervening “contrary
decision of the law applicable to such issues.” In re Ford Motor, 591 F.3d at
411–12 (emphasis added). Third, the McKays cannot show that the MDL



       9 Indeed, after the MDL court declined to reconsider its prior ruling, Novartis moved
for summary judgment on the McKays’ remaining claims while still in the MDL court. In
their response, the McKays acknowledged that the law of the case applied to the MDL court’s
ruling on their failure to warn claim, but for the first time raised their new arguments to
§ 82.007’s applicability. The MDL court did not rule on this motion but instead suggested
remanding the McKays’ case. The MDL panel then remanded the McKays’ case to Texas on
August 23, 2011. That the McKays attempted to raise these arguments before the MDL court
in their response to Novartis’s second summary judgment motion—though after they had
already moved to reconsider the MDL court’s original ruling on § 82.007’s applicability—
indicates that the evidence before the remand court is not substantially different as to deviate
from the law of the case.
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                                 No. 13-50404
court’s decisions were clearly erroneous for failing to consider arguments that
the McKays could have raised but did not. As the MDL court recognized:
“Neither side claims that any of the specifically enumerated ways to rebut the
presumption applies in this instance except subsection (b)(1), so the Court need
address only (b)(1). If Plaintiffs are precluded, by preemption or otherwise from
establishing the facts required under subsection (b)(1), Plaintiffs cannot rebut
the presumption.” The McKays moved under Rule 56(d) for more time on the
choice of law issue, but they did not request more time for discovery on the
§ 82.007(b)(3) issue; they proceeded only under § 82.007(b)(1). Moreover, the
McKays did not attempt to invoke § 82.007(b)(3) or urge that the entirety of
§ 82.007(a) must be invalidated in their motion for reconsideration filed almost
three years after the MDL court’s summary-judgment ruling. Cf. Fuller v.
Donahoo, No. 95-10784, 1996 WL 459784, at *1 (5th Cir. July 24, 1996)
(unpublished) (applying law of the case in the appeal context and noting
“Fuller’s argument . . . could have been raised in the original appeal. This
argument does not constitute a new or different ground for relief from the
order. Fuller waived this argument by not raising it in his first appeal.”).
      “The law of the case doctrine requires attention to the special authority
granted to the multidistrict transferee judge and ensures that transferor
courts respect the transferee court’s decisions.” In re Ford Motor, 591 F.3d at
411. Allowing the McKays to relitigate in the remand court issues decided by
the MDL court with arguments that could have been raised but were not would
“frustrate the purposes of centralized pretrial proceedings.” Id. at 411 (quoting
Manual for Complex Litigation § 20.133). Thus, the remand court properly
applied the law of the case when it refused to reconsider the MDL court’s
rulings that § 82.007 applied to the McKays’ failure to warn claims. See, e.g.,
Lincoln Gen. Ins. Co. v. De La Luz Garcia, 501 F.3d 436, 442 (5th Cir. 2007)
(“[G]enerally speaking, we will not consider an issue raised for the first time
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                                  No. 13-50404
in a Motion for Reconsideration.”); see also Hightower v. Aramark Educ. Servs.,
L.L.C., 537 F. App’x 489, 490 (5th Cir. 2013); RLI Ins. Co. v. Maxxon Sw. Inc.,
108 F. App’x 194, 200–01 (5th Cir. 2004) (unpublished).
                                        C.
      The remand court held that § 82.007(a) did not preclude the McKays’
breach of warranty claims because they were distinct from their failure to warn
claims. The remand court decided that these claims also failed, however,
because the McKays did not comply with Texas’s statutory notice
requirements. This court reviews the remand court’s grant of summary
judgment on the McKays’ warranty claims de novo. Onoh v. Nw. Airlines, Inc.,
613 F.3d 596, 599 (5th Cir. 2010).
      To recover on a breach of warranty claim in Texas, “the buyer must
within a reasonable time after he discovers or should have discovered any
breach notify the seller of breach or be barred from any remedy.” Tex. Bus. &
Com. Code § 2.607(c)(1). The burden of “alleging and proving proper notice” is
on the buyer, and “[f]ailure to notify the seller of the breach, thereby allowing
the seller an opportunity to cure, bars recovery on the basis of breach of
warranty.” Lochinvar Corp. v. Meyers, 930 S.W.2d 182, 189 (Tex. App.— Dallas
1996, no writ). “It is not essential under [§ 2.607] that the buyer’s notification
of defective product specifically set forth in detail every objection the buyer has
to the fitness of the product; it is only necessary that the seller be informed
that there is a claimed breach of the warranty of fitness.” Melody Home Mfg.
Co. v. Morrison, 502 S.W.2d 196, 203 (Tex. App.—Houston [1st Dist.] 1973,
writ ref’d n.r.e.).
      The McKays argue that they satisfied the notice requirements because
(1) Dr. Leibowitz, as McKay’s agent, notified Novartis, (2) a class action was
filed against Novartis “to which Mr. McKay would have been in the class,” and
(3) McKay did not have to notify Novartis because his notification to Dr.
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                                 No. 13-50404
Leibowitz—an intermediate seller—suffices under the statute. We find these
arguments unavailing.
      First, even though Dr. Leibowitz did notify Novartis of the problems his
patients were experiencing with the drugs, there is no evidence that he alerted
Novartis that McKay in particular had suffered an injury. The Texas Court of
Appeals has noted “[t]he manufacturer must be made aware of a problem with
a particular product purchased by a particular buyer.” U.S. Tire-Tech, Inc. v.
Boeran, B.V., 110 S.W.3d 194, 201–02 (Tex. App.—Houston [1st Dist.] 2003,
pet. denied). Therefore, Dr. Leibowitz’s general notifications of problems with
Novartis’s drugs do not suffice. Second, “commencement of litigation” does not
satisfy the notice requirement. Boeran, 110 S.W.3d at 201–02; Wilcox v.
Hillcrest Memorial Park of Dall., 696 S.W.2d 423, 424–25 (Tex. App.—Dallas
1985, writ ref’d n.r.e) (“It would be untenable to allow a buyer, such as Wilcox,
to recover damages for breach of warranty from a remote seller or
manufacturer who was never even made aware that the product in question
was defective and who, consequently, never had an opportunity to remedy the
defect to the buyer’s satisfaction before litigation was commenced or even to
inspect the product to ascertain if indeed a defect existed.”). That the
notification requirement must be satisfied before litigation is consistent with
§ 2.607’s purpose to “inform[] the seller that the transaction is claimed to
involve a breach, and thus open[] the way for normal settlement through
negotiation.” § 2.607 cmt. 4.
      Third, although the Texas Supreme Court has not decided whether
notice must be given to a remote manufacturer or seller to satisfy § 2.607’s
requirements, Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 674 & n.14
(Tex. 2004), the majority of Texas intermediate courts have held that a buyer
must notify both the intermediate seller and the manufacturer. See, e.g., Bailey
v. Smith, No. 13-05-085-CV, 2006 WL 1360846, at *4–5 (Tex. App.—Corpus
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                                  No. 13-50404
Christi May 18, 2006, no pet.) (“We agree with our sister courts in Dallas and
Houston, following the plain reading of the statute and concluding that no
policy concerns are presented in this case requiring that we advance a remedy
additional to that available against an immediate seller, where only that
immediate seller has been notified.”); Borean, 110 S.W.3d at 199 (“It is difficult
to conceive how the term ‘seller’ could be read broadly to include a remote
manufacturer when rejecting a privity requirement . . . but then read narrowly
under section 2.607 so as to require that a buyer give notice only to an
immediate seller. The drafters of the UCC did not read section 2.607 as
referring solely to the relationship between a buyer and an immediate seller.”);
Wilcox, 696 S.W.2d at 424 (expressly rejecting an interpretation of § 2.607 that
allows the notice requirement to be satisfied when given from buyer to
immediate seller); see also In re Mirapex Prods. Liab. Litig., 735 F. Supp. 2d
1113, 1124 (D. Minn. 2010) (“The Court finds that, if the Texas Supreme Court
were confronted with this issue, it would adopt the majority position, and find
notice to a remote manufacturer to be a prerequisite to suit.”).
      In Vintage Homes, Inc. v. Coldiron, 585 S.W.2d 886, 888–89 (Tex. Civ.
App.—El Paso 1979, no writ), the court interpreted § 2.607 to “appl[y] only as
between a buyer and his immediate seller.” Subsequent cases have noted that
Vintage Homes interpreted a different version of § 2.607:
      We note that [Vintage Homes] was based on a commentary which
      discussed a version of section 2.607 that differed in an important
      respect from the version enacted into Texas law as Tex. Bus. &
      Com. Code § 2.607(c)(1). The version discussed by that
      commentary required that the buyer give note to “his” seller, while
      the Texas version of section 2.607(c)(1) requires that notice be
      given to “the” seller.
Wilcox, 696 S.W.2d at 425. Courts disagreeing with Vintage Homes also note
that requiring notice to the manufacturer is consistent with the purposes of
§ 2.607’s notification because “[i]f the manufacturer is to be held responsible
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                                      No. 13-50404
for the buyer’s losses, it needs the protection of timely notice at least as much
as the buyer’s immediate seller.” Boeran, 110 S.W.3d at 199 (quoting James J.
White & Robert S. Summers, Uniform Commercial Code § 11–10 (4th ed.
1995)); see also id. (“The drafters of the UCC did not read section 2.607 as
referring solely to the relationship between a buyer and an immediate seller.”).
Although the Texas Supreme Court has not decided this issue, the weight of
intermediate Texas authority interprets the applicable version of § 2.607 to
require McKay to notify Novartis before suing for breach of warranty. See
Birmingham Fire Ins. Co. of Pa. v. Winegardner & Hammons, Inc., 714 F.2d
548, 550 (5th Cir. 1983) (“[W]hen the supreme court of a state has not spoken
to a particular issue, the well-established practice of this Circuit is to follow
the opinion of the highest court which has written on the matter.”); see also
Temple v. McCall, 720 F.3d 301, 307 (5th Cir. 2013).
       Thus, the remand court properly granted summary judgment on the
McKays’ warranty claims. 10
                                            III.
       As neither the MDL court nor the remand court erred reversibly, we
AFFIRM.




       10 Because the McKays’ warranty claims fail to meet the statutory notice requirements
we need not consider Novartis’s alternative argument that these claims also fall within the
scope of § 82.007.
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