                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                             PUBLISH
                                                                        JUN 20 1997
                          UNITED STATES COURT OF APPEALS
                                                                   PATRICK FISHER
                                                                             Clerk
                                  FOR THE TENTH CIRCUIT



    ALPHA EDWARDS, Personal
    Representative of the Estate of John T.
    Edwards, deceased,

                   Plaintiff-Appellant,

    v.                                                 No. 95-6176

    BASEL PHARMACEUTICALS, a
    division of Ciba-Geigy Corporation,

                   Defendant-Appellee.

    ----------------------------------------------

    PHARMACEUTICAL RESEARCH
    AND MANUFACTURERS OF
    AMERICA,

                   Amicus Curiae.


                                              ORDER


Before ANDERSON and BARRETT, Circuit Judges. *



*
       The late Honorable Oliver Seth, United States Senior Circuit Judge, passed
away before final disposition of this appeal. “The practice of this court permits
the remaining two panel judges if in agreement to act as a quorum in resolving the
appeal.” United States v. Wiles, 106 F.3d 1516, 1516 n.* (10th Cir. 1997),
petition for cert. filed, 65 U.S.L.W. 3632, (U.S. Mar. 10, 1997) (No. 96-1430).
      This matter is before the court on a petition for rehearing with suggestion

for rehearing en banc filed by defendant-appellee Basel Pharmaceuticals. For the

reasons stated below, the hearing panel has concluded its original disposition was

correct, and the remaining judges of the court in active service have rejected the

en banc suggestion. Some background is necessary for a full understanding of the

procedural and substantive deficiencies of the petition.

                                          I

      Plaintiff Alpha Edwards brought this wrongful death action after her

husband suffered a fatal heart attack while smoking cigarettes and wearing two of

Basel’s “Habitrol” nicotine patches. Her theory of liability was Basel’s failure to

warn of the risks of nicotine overdose resulting from smoking and (over)use of

the patch. While a relatively thorough warning, specifically noting the fatal risk

realized here, was included in materials intended for the prescribing physician, a

package insert addressed to the patient failed to mention the possibility of any

fatal reaction to nicotine overdose, cautioning only that “[a]n overdose might

cause you to faint.” Appellant’s Appendix (App.) at 45.

      Basel moved for summary judgment on the ground that, pursuant to the

“learned intermediary rule” (LIR) recognized in Oklahoma, see, e.g., Tansy v.

Dacomed Corp., 890 P.2d 881, 886 (Okla. 1994), its duty to warn ran solely to the

prescribing physician, who was apprised of the danger involved. Plaintiff


                                         -2-
countered that the case fell within a recognized exception to the LIR, applicable

when “the FDA has mandated that warnings be given to the patient as well as to

the physician.” McKee v. Moore, 648 P.2d 21, 25 (Okla. 1982). Basel, which

represented that “the patient insert as well as the Information to Physician were

both mandated and approved by the FDA,” App. at 54 n.7, contended that its

compliance with the FDA mandate precluded any liability premised on inadequate

patient warnings. The district court granted summary judgment for Basel.

      On appeal, the parties reasserted the positions they had urged in the district

court. We recognized that the case, as framed by the foregoing proceedings,

raised an unsettled question regarding the relationship between a satisfied FDA

mandate 1 and the LIR:

            Although Oklahoma courts have acknowledged the
      FDA-mandate exception, they have never had the occasion to
      consider the effect of the manufacturer’s compliance with the very
      agency mandate on which the exception rests. The courts that have
      considered the issue have followed two very different lines of
      analysis which, though mutually exclusive, appear internally
      consistent and sound.

             Some courts have held that the LIR, itself an exception to the
      manufacturer’s traditional duty to warn consumers directly of the
      risks associated with any product, simply drops out of the calculus,


1
       We noted that “[a]lthough the operative administrative regulation,
directive, or stipulation was never produced,” the FDA mandate for direct patient
warnings and Basel’s compliance therewith were admitted and uncontroverted.
Edwards v. Basel Pharmaceuticals, No. 95-6176, Certification of State Law
Question (Certification Order), at 2-3 (10th Cir. Feb. 28, 1996).

                                         -3-
       leaving the duty of the manufacturer to be determined in accordance
       with general principles of tort law. See, e.g., Odgers v. Ortho
       Pharmaceutical Corp., 609 F. Supp. 867, 877-79 (E.D. Mich. 1985);
       Martin ex rel. Martin v. Ortho Pharmaceuticals, 645 N.E.2d 431,
       436-37 (Ill. Ct. App. 1994); MacDonald v. Ortho Pharmaceutical
       Corp., 475 N.E.2d 65, 69-71 (Mass.), cert. denied, 474 U.S. 920
       (1985). Pursuant to such principles, traditional standards involving
       reasonableness govern the adequacy of warnings and, hence,
       compliance with a nonpreemptive and “minimal” FDA mandate (in
       particular, the one negating the LIR) is at most inconclusive evidence
       of adequacy. Odgers, 609 F. Supp. at 879; Martin, 645 N.E.2d at
       437; MacDonald, 475 N.E.2d at 70.

              Other courts have held that the LIR remains operative, thus
       barring reversion to general duty principles, and yields only to the
       extent of the FDA mandate, which carves out--and thereby
       delimits--an exceptional, exclusive duty owed directly to the
       consumer. Once this overriding mandate is met, the LIR “applies
       and acts to bar any consideration of any alleged deficiency of the
       warning to the user.” Lacy v. G.D. Searle & Co., 567 A.2d 398, 401
       (Del. 1989); accord Spychala v. G.D. Searle & Co., 705 F. Supp.
       1024, 1032-33 (D.N.J. 1988). Under this view, the minimal,
       nonpreemptive character of FDA-mandated requirements is simply
       not a consideration, because it is the LIR, not compliance with the
       FDA mandate, that, strictly speaking, precludes the common law
       consumer-warning claim.

Certification Order at 3-4. We summarized the pertinent facts of record and

certified the following question to the Oklahoma Supreme Court:

              Under Oklahoma law, what determines the scope or extent of
       the prescription drug manufacturer’s duty to warn the consumer when
       FDA recognition of the need for direct warnings has undercut
       application of the learned intermediary rule? More specifically, what
       is the effect of the manufacturer’s compliance with the very FDA
       requirements invoking this exception to the rule?

Id. at 1.


                                         -4-
      In due course, the supreme court supplied its answer, supporting the

viability of plaintiff’s claim for inadequate consumer warnings:

             We hold that when the FDA requires warnings be given
      directly to the patient with a prescribed drug, an exception to the
      “learned intermediary doctrine” has occurred, and the manufacturer
      is not automatically shielded from liability by properly warning the
      prescribing physician. When this happens the manufacturer’s duty to
      warn the consumer is not necessarily satisfied by compliance with
      FDA minimum warning requirements. The required warnings must
      not be misleading, and must be adequate to explain to the user the
      possible dangers associated with the product. Whether that duty has
      been satisfied is governed by the common law of the state . . . .

Edwards v. Basel Pharmaceuticals, 933 P.2d 298, 303 (Okla. 1997).

      Implementing this definitive pronouncement of controlling state law, we

issued an order and judgment reversing the district court insofar as it had granted

summary judgment for Basel on plaintiff’s consumer warning claim: “The district

court has never considered the adequacy of Basel’s consumer warnings under the

common law of Oklahoma. Accordingly, summary judgment must be reversed

and the case remanded for further proceedings on that issue, consistent with the

principles expressed by the state supreme court.” Edwards v. Basel

Pharmaceuticals, No. 95-6176, 1997 WL 158134, at **1 (10th Cir. Apr. 2, 1997).

With respect to “plaintiff’s analytically separate claim that Basel (also) did not

adequately warn the decedent’s prescribing physician,” however, we affirmed,

agreeing with the district court that plaintiff had offered no affirmative evidence



                                          -5-
to dispute Basel’s showing that the information provided to the prescribing

physician was accurate, appropriate, and complete. Id.

      One month later, Basel filed the instant petition objecting to the content of

our certified question and to our implementation of the supreme court’s answer.

Basels’ primary argument on rehearing runs as follows: the record failed to

establish the particular source and content of the FDA mandate involved; because

of this evidentiary gap, our question improperly assumed a mandate for direct

patient warnings sufficient to undercut the LIR; and, finally, this deficiency in the

question left the supreme court’s answer inapplicable to our facts. As a

secondary matter, Basel argues that our question was inconsistent with a factual

determination made by the district court.

                                            II

      Before addressing the merits of Basel’s petition, it is important to note its

procedural inappropriateness. Basel (1) unequivocally and unqualifiedly

represented to the district court that its monitory patient insert was mandated by

the FDA; (2) responded to plaintiff’s resultant FDA-mandate argument not by

retracting or qualifying that admission, but by relying on the accompanying

representation, also uncontroverted, that it had satisfied the admitted mandate;

and (3) did not object in any way to our certification order, which posed the sole

question raised by its own broad representations and argument on the


                                         -6-
FDA-mandate question. Only now, after the supreme court has provided an

unfavorable answer and we have remanded for further proceedings in accordance

therewith, does Basel raise any objection regarding the nature of the mandate

referred to in the certified question. Further, Basel’s challenge to our subsequent

order and judgment implementing the supreme court’s answer is, in essence,

really an indirect objection to the premises underlying our certified question,

premises which, as noted, Basel supplied at the outset and never called into doubt

until now.

      To say the least, then, Basel’s present protests are mistimed. Indeed, even

putting aside the connection to the year-old certification order and considering the

petition solely in connection with our subsequent order and judgment, it is still

plainly late, see Fed. R. App. P. 40(a) (specifying fourteen days for filing petition

for rehearing), and Basel has not offered any excuse for its untimeliness. Our

following discussion and rejection of the petition on the merits is intended to

facilitate the proceedings on remand, which otherwise might be complicated

needlessly by some of the same contentions; we do not thereby condone the

procedural course followed here.




                                          -7-
                                        III

      Basel objects that our certified question did not identify the particular

source of the FDA mandate involved (an omission its own broad representations

and subsequent silence necessitated) and therefore improperly assumed a mandate

sufficient to trigger Oklahoma’s exception to the LIR. However, we did not

mislead the Oklahoma Supreme Court on this point; on the contrary, we carefully

explained that our certified question was based solely on Basel’s general

representation that its patient insert had been mandated and approved by the FDA

because “the operative administrative regulation, directive, or stipulation was

never produced.” Certification Order at 2. Hence, all that can be said is the

supreme court provided a broader answer than it might have had we been able to

offer restrictive details of the FDA mandate involved--an answer indicating that

the distinctions Basel now wishes to draw, making the availability of the

FDA-mandate exception turn on the administrative context or format of the

particular mandate involved, played no part in the court’s analysis of the drug

manufacturer’s duty to warn. Indeed, the court stated its holding with reference

to generic FDA “requirements.” Edwards, 933 P.2d at 303.

      In short, the supreme court focused on the existence of a mandate for direct

patient warnings, without qualification as to regulatory source, content, or form,

and evinced no compunction about applying the FDA-mandate exception to the


                                         -8-
circumstances of this case, in which, as we had fully explained, such details were

lacking. Accordingly, we find no support for Basel’s present contentions that our

certified question was improper or that this case may involve some inferior sort of

mandate outside the scope of the duty analysis set out in the supreme court’s

answer.

      The thrust of that duty analysis may be further clarified in response to two

objections advanced by amicus Pharmaceutical Research and Manufacturers of

America (PRMA). 2 PRMA argues that, contrary to our certified question and the

supreme court’s answer, “the FDA has expressly stated that patient package

inserts are not intended to affect adversely the standard of civil tort liability

which is imposed on drug manufacturers and dispensers, or to define the duty or

set the standard of care manufacturers owe to the patient who uses the product.”

Amicus Curiae Brief at 8 (citations omitted and emphasis altered). As the

emphasized terms betray, PRMA is actually complaining about a decision no one

has made yet, regarding the requisite content of the manufacturer’s consumer

warnings. Specifically, PRMA is concerned about preserving the independence

between state tort warning standards and particular patient labels or inserts the

FDA has mandated/approved. This has nothing to do with the analytically prior



2
      We grant PRMA’s motion to file the amicus curiae brief submitted in
conjunction with Basel’s petition for rehearing.

                                          -9-
question of duty vel non posed in our certification order. Indeed, the Oklahoma

Supreme Court’s answer--that the duty recognized here is not necessarily satisfied

by compliance with the FDA mandate triggering it--effectuates precisely the

content-independence referred to in the quoted passage. 3

      PRMA displays a similar confusion in arguing that we have mistaken the

Habitrol patient insert for a “comprehensive warning” when it is just a “lay”

admonition meant merely to complement the more exhaustive information

provided to the prescribing physician. The Oklahoma Supreme Court was well

aware of the difference between the prescribing physician’s materials and the

patient insert, see Edwards, 933 P.2d at 299, but this difference did not affect its

determination that an agency mandate requiring that some cautionary information

be given directly to the patient precluded reliance on the LIR. Again, PRMA

confuses the conditions creating Basel’s duty to warn with considerations relating

to the content/satisfaction of that duty, a matter that simply has not been reached

yet. See id. at 303 (recognizing Basel’s duty to warn consumer, but explaining

“[w]hether that duty has been satisfied [under] the common law of the state . . .

[is] beyond our assignment in response to this certified question”); Edwards, 1997

WL 158134, at **1 (this court’s order and judgment remanding to the district


3
       Moreover, whether the FDA disclaims any intent to affect state tort duties
(as to content or existence) is irrelevant to the controlling question whether a
particular state has chosen to rely on FDA mandates for such purposes.

                                         -10-
court, which “has never considered the adequacy of Basel’s consumer warnings

under the common law of Oklahoma”). Thus, some of what PRMA has to say

may be relevant to assessing the adequacy of Basel’s consumer warnings, but it is

not pertinent to the analytically prior decision, dispositive of this appeal, that

Basel had a common law duty to provide such warnings.

      Finally, Basel contends our disposition is inconsistent with the district

court’s statement that it “agrees with defendant that plaintiff has not shown that

the [FDA] mandated that warnings with respect to the Habitrol System be given to

the patient directly.” App. at 71 n.1. On its face, this statement merely

acknowledges that plaintiff did not present her own evidence of FDA-mandated

warnings--a fact of no analytical significance given that the necessary mandate

was admitted by Basel. Moreover, if the district court intended to hold, as a

matter of law, that no FDA mandate existed, that holding would be plainly in

error, as the only evidence on the question is Basel’s unqualified admission of

such a mandate. Actually, in light of the district court’s initial expression of

“agree[ment] with defendant,” it evidently was not making either of these points,

but simply accepting Basel’s argument that, given Basel’s uncontroverted

compliance with the (admitted) FDA mandate, plaintiff had presented no evidence

of any FDA-mandated patient warning that Basel had not given, and,

consequently, there could be no liability based thereon. While a reasonable


                                          -11-
enough approach given the blank slate the district court was writing on at the

time, that is precisely the legal position now rejected by the Oklahoma Supreme

Court in response to our certified question. Obviously, the district court’s

contrary assessment of the governing state law cannot preempt or undermine the

supreme court’s definitive pronouncement thereof.

      The petition is DENIED.




                                        -12-
