                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                           In the                                    June 22, 2004
       United States Court of Appeals                        Charles R. Fulbruge III
             for the Fifth Circuit                                   Clerk
                  _____________________

                       No. 03-31030
                     Summary Calendar
                  _____________________



           BARBARA HALL AND DENNIS HALL,

                                   Plaintiffs-Intervenor Defendants-
                                   Appellants/Appellees,

                          VERSUS

               ELKINS SINN, INC.; WYETH,

                                   Defendants-Intervenor Defendants-
                                   Appellees,

                          VERSUS

LOUISIANA PATIENT COMPENSATION FUND OVERSIGHT BOARD,

                                   Intervenor Plaintiff-Appellant.


                   ____________________

         Appeals from the United States District Court
            for the Western District of Louisiana
                       m 02-CV-684
                   ____________________
Before SMITH, DEMOSS, and STEWART,                         Since then, she has suffered the numerous side
  Circuit Judges.                                          effects associated with permanent bilateral ves-
                                                           tibular damage, or ototoxicity, as a result of
PER CURIAM:*                                               using the drug.

   Plaintiffs, Barbara and Dennis Hall, and in-                                    II.
tervenor, Louisiana Patient Compensation                       Plaintiffs filed a medical malpractice claim
Fund Oversight Board (“PCF”), appeal a sum-                against Seale under the Louisiana Medical
mary judgment for defendants, Wyeth Com-                   Malpractice Act. A medical review panel
pany, d/b/a Wyeth-Ayerst Laboratories, and                 found that Seale had deviated from the appli-
Elkins Sinn, Inc. (“Wyeth”). Plaintiffs’ origi-            cable standard of care, and the claim against
nal claim was pursuant to the Louisiana Prod-              him was settled for $100,000; the settlement
ucts Liability Act (“LPLA)1 and asserted that              triggered access to the PCF. Plaintiffs also
Gentamicin, a drug manufactured by Wyeth,                  sued the pharmacist; the parties also settled,
was unreasonably dangerous because an ade-                 and the case went to trial against the PCF.
quate warning of its potentially harmful effects           The jury returned a verdict finding Seale 85%
was not provided. For fundamentally the same               liable, the pharmacist 10%, and Hall 5%. The
reasons expressed in the district court’s Mem-             state appellate courts affirmed.2
orandum Ruling and Order, we affirm.
                                                               After bringing the above-described case in
                       I.                                  state court, plaintiffs sued the manufacturers of
   The facts are not in dispute. Barbara Hall,             Gentamicin in federal court, using diversity
suffering from recurrent boils on her right arm,           jurisdiction. Plaintiffs charged that defendants
sought treatment from Dr. Kent Seale, who                  failed to provide adequate warnings for their
prescribed injections of Gentamicin, a pow-                drug and that the failure to warn was a legal
erful drug that can have serious potential side            and proximate cause of Hall’s injuries. Defen-
effects, especially when taken in large dosages            dants sought summary judgment, asking to
or for prolonged periods of time. Seale wrote              dismiss the claim for five reasons: (1) The
Hall a prescript ion for 21 days, well beyond              warnings accompanying Gentamicin were clear
the recommended 7-10 day course of treat-                  and unambiguous as a matter of law; (2) Seale
ment. The pharmacist compounded Hall’s risk                did not read the physician labeling supplied
by providing her with a 33-day supply.                     with the product, but acknowledged he was
                                                           aware of the risks associated with the drug; (3)
   After taking the drug for 28 days, Hall be-             the labeling supplied with Gentamicin was
gan to experience dizziness and was told by                approved by the Food & Drug Administration;
Seale to discontinue her use of Gentamicin.                (4) plaintiffs offer no expert testimony refuting
                                                           the adequacy of the warning; and (5) plaintiffs’
                                                           claims against Wyeth are precluded by the
   *                                                       state court judgment. The district court
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
                                                              2
circumstances set fort in 5TH CIR. R. 47.5.4.                  See Hall v. Brookshire Bros., Ltd., 831 So. 2d
                                                           1010 (La. App. 3d Cir. 2002); Hall v. Brookshire
   1
       LA. REV. STAT. art. 9:2800.57.                      Bros., Ltd., 848 So. 2d 559 (La. 2003).

                                                       2
granted summary judgment based on defen-                         Plaintiffs argue that the district court erred
dants’ final assertion that the claim was barred             in applying art. 425 and that Hall’s claim
under issue preclusion, a concept that had been              against Wyeth is of a fundamentally different
adopted in 1991 by the Louisiana legislature.3               nature from the claims asserted in the earlier
The court also noted that, putting aside any                 litigation, because the new cause of action in-
question of issue preclusion, summary judg-                  volves different parties and derives from dif-
ment should be granted because of the applica-               ferent circumstances. This argument is with-
bility of the “learned intermediary doctrine”                out merit.
and the plaintiffs’ subsequent failure to estab-
lish causation.                                                  The fact that the causes of action involve
                                                             different defendants is irrelevant, because the
                       III.                                  purpose of article 425 is to encourage plain-
                        A.                                   tiffs to join all possible defendants in a single
    A motion for summary judgment under                      litigation and to prevent relitigation of issues
Federal Rule of Civil Procedure 56 should be                 rather than claims. The purpose of issue pre-
granted only if there is no genuine issue of ma-             clusion is to prevent relitigation of issues al-
terial fact and the moving party is entitled to              ready dealt with by the courts, so as to maxi-
judgment as a matter of law. In determining                  mize judicial economy and minimize conflict-
whether there is a genuine issue of material                 ing judgments.
fact, evidence and inferences must be drawn in
the light most favorable to the non-moving                       The state jury apportioned 100% of the
party. Daniels v. City of Arlington, Tex., 246               fault of Hall’s injuries. To allow the claim
F.3d 500, 502 (5th Cir. 2001). We review a                   against Wyeth to proceed would require a re-
summary judgment de novo. Meditrust Fin.                     apportionment of fault and a relitigation of the
Serv. Corp. v. Sterling Chem., Inc., 168 F.3d                same issues of causation already dealt with in
211, 213 (5th Cir. 1999).                                    the first suit. This result would be fundamen-
                                                             tally at odds with the principles behind res
                       B.                                    judicata.
   The district court held that plaintiffs’ claim
against Wyeth was barred by the state litiga-                   Moreover, plaintiffs contend the cause of
tion. Pursuant to LA. CIV. CODE art. 425, the                action against Wyeth derives from a set of cir-
court maintained that the claim was issue-                   cumstances different from those underlying
precluded, and plaintiffs’ failure to join Wyeth             the causes of action against earlier defendants.
as a party in the first litigation effectively               Although, however, three independent alleged
amounted to a waiver of any claim against the                faults can be discerned from the facts, all of
manufacturers.4                                              these alleged faults arise from the same nu-
                                                             cleus of facts and unite to creat e a single, in-
                                                             divisible harm.
   3
       LA. CIV. CODE art. 425.
                                                                Hall’s use of Gentamicin resulted in her
   4
     The relevant section of art. 425 states that “a
party shall assert all causes of action arising out of
                                                                4
the transaction or occurrence that is the subject                (...continued)
                                       (continued...)        matter of the litigation.”

                                                         3
developing ototoxicity. The question whether            tiff’s doctor “unequivocally” testified that
this was the result of the doctor’s negligence          “warning was adequate to inform him or her of
or the manufacturer’s inadequate warnings               the risks involved” in addition to proving that
represents two separate causes of action rather         the warning contains a “clear and unambigu-
than two separate transactions or occurrences.          ous reference to the adverse reactions suffered
Plaintiffs’ interpretation that article 425 asks        by the Plaintiff.” Id. at 267. Although plain-
the court to examine whether “the same trans-           tiffs maintain that the warning is lacking, they
action or same cause of action is asserted in           offer no expert testimony to back this claim
the second suit” is a blatant misreading of the         up, nor do they attempt to refute defendants’
statute, which instead requires a plaintiff to          expert testimony or evidence to the contrary.
assert “all causes of action arising out of the
transaction or occurrence that is the subject
matter of the litigation” (emphasis added).                Plaintiffs also aver that because Seale’s af-
Just because one cause of action is governed            fidavit does not unequivocally testify regarding
by the rules of medical malpractice and an-             the adequacy of the warning, questions of fact
other by products’ liability is no reason to            remain that make summary judgment im-
allow for a separation of the claims when they          proper. Because, however, Seale failed to
involve the same facts and the same questions           read the warnings provided, he could not
of fault and causation.                                 truthfully testify as to whether the warnings
                                                        were adequate to prevent him from prescribing
   The district court cites Westerman v. State          the drug to Hall. Additionally, Seale acknowl-
Farm Mut. Auto. Ins. Co., 834 So. 2d 445                edged his awareness of the risks anyway,
(La. App. 1st Cir. 2002), to illustrate this            further making Stahl an inappropriate guide in
point. Westerman holds that plaintiff’s first           this case.
action based in tort barred her from bringing a
second action based in contract, because the               Contrary to the plaintiffs’ argument, the
two causes of action arose from the same                “learned intermediary doctrine” applies in this
occurrence (an automobile accident). Requir-            case, because it involves a prescription drug.
ing Hall to have joined Wyeth and the earlier           Under the doctrine, a manufacturer’s duty to
defendants in the same suit or lose her claim           warn the end-user is discharged to the physi-
against Wyeth is consistent with Westerman              cian because of the expertise necessary to un-
and the proper reading of article 425.                  derstand the warning labels adequately. Eas-
                                                        terling v. Cardiac Pacemakers, Inc., 1998 WL
                        C.                              50021, at *3 (E.D. La. Feb. 6, 1998) (denying
    Although it is not necessary to our decision,       motion for reconsideration); Reyes v. Wyeth
we note that the district court was correct in          Labs., 498 F.2d 1264, 1276 (5th Cir. 1974).
its analysis of the learned intermediary doc-           To prevail on a failure to warn case under the
trine. On that issue, plaintiffs argue that Stahl       LPLA, a plaintiff must prove that the manufac-
v. Novartis Pharms. Corp., 283 F.3d 254 (5th            turer failed to warning the treating physician of
Cir. 2002), should be the guiding authority.            the dangers associated with the drug and that
                                                        this failure was both a cause in fact and a
   Plaintiffs reason that for summary judgment          proximate cause of plaintiff’s injury. Willett v.
to be proper, defendants must prove that plain-         Baxter, 929 F.2d 1094 (5th Cir. 1991).


                                                    4
    Under this two-prong test, failure to warn
is just one part necessary to find the manufac-
turer at fault. Plaintiffs never address the sec-
ond prong of causation, because they cannot
offer any evidence to support a jury finding in
their favor. Seale’s affidavit acknowledges
that he never read the warning and that he was
aware of the risks of the drug independently of
Wyeth’s labels; therefore, Wyeth’s warning
(adequate or inadequate) played no role in the
events leading to Hall’s injury. Even if we as-
sume, arguendo, that the warning was inade-
quate, plaintiffs would be unable to show that
a proper warning would have changed Seale’s
decision to prescribe Gentamicin. Because
plaintiffs are unable to provide any evidence to
support proximate and legal causation, their
claim fails as a matter of law.

   AFFIRMED.




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