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Yocham v. Novartis Pharmaceuticals Corp.

August 31, 2010


The opinion of the court was delivered by: Simandle, District Judge




This products liability matter is before the Court on Defendant's motion for summary judgment under Rule 56(c)(2), Fed. R. Civ. P. [Docket Item 51], and Plaintiff's motion to continue under Rule 56(f), Fed. R. Civ. P. [Docket Item 57]. The principal issues to be decided are whether Texas or New Jersey substantive law will apply to Plaintiff's various claims; what consequences that state's law will have for whether Plaintiff states a claim under her various cases of action, including whether Plaintiff's failure-to-warn claim is foreclosed because the only available exception to a statutory defense of FDA-approval is preempted by federal law; and whether Plaintiff is entitled to a continuance to take further discovery before opposing the motion. For the reasons explained in today's Opinion, the Court finds that Plaintiff is not entitled to a continuance, that Texas law applies to all of Plaintiff's claims, and that Texas law forecloses some of those claims.


In 2005, Plaintiff, Cordelia Yocham, was prescribed Lamisil, a prescription antifungal medication to treat her onychomycosis, a fungal nail infection. (Yocham Dep. 141:1-11, 150:12-151:25.) Ms. Yocham alleges that she developed Steven-Johnson Syndrome, a painful and potentially life-threatening medical condition, as a result of having used the Lamisil. (Compl. ¶¶ 10-13.) Lamisil is manufactured and distributed by Defendant, Novartis Pharmaceuticals Corporation, and it is approved by the United States Food and Drug Administration (FDA) as a safe and effective treatment for "onychomycosis of the toenail or fingernail due to dermatophytes (tinea unguium)." (Falletta Cert., Ex. B "FDA Approval Letter.") The FDA also approved of the drug's labeling, and Lamisil remains on the market as an FDA-approved drug. (Id.)

On February 20, 2007, Plaintiff's counsel sent a letter to Defendant threatening a personal injury suit without indicating the nature of the legal claims, followed by copies of Plaintiff's Lamisil prescription, medical records, and photographs of her injuries. (Maloney Cert. Exs. A-C.) Plaintiff then filed this action against Defendant in the Superior Court of New Jersey on April 5, 2007 and Novartis timely removed the action to this Court on April 17, 2007. [Docket Item 1.] Plaintiff's Complaint asserts claims of negligence (Count I), strict liability (Count II), breach of express warranty (Count III), breach of implied warranty (Count IV), fraudulent misrepresentation (Count V), negligent and reckless misrepresentation (Count VI), unjust enrichment (Count VII), defective design and failure to warn under the New Jersey Product Liability Act (Counts VIII and IX), and a New Jersey Consumer Fraud Act claim (Count X).

Ms. Yocham resides in Bollinger, Texas and has lived there since 1966. (Yocham Dep. 42:8-13.) She never sought treatment in New Jersey, and indeed has never been to New Jersey. (Id. 315:3-6.) Ms. Yocham has never had contact with Defendant, never instructed anyone to contact Defendant on her behalf regarding Lamisil or her injuries prior to this lawsuit, and has never seen any literature or written material from Defendant regarding Lamisil. (Yocham Dep. 302:20-304:10.) Defendant is a Delaware corporation with its principal place of business in New Jersey. (Def.'s Response to Pl.'s Statement of Material Facts.)

Defendant argues that Texas law should govern this case because the drug was prescribed in Texas to a resident of Texas, who received or failed to receive any information about the drug in Texas, and who ingested and was allegedly injured by the drug in Texas. Defendant maintains that Texas law forecloses all of Plaintiff's causes of action.*fn1 Plaintiff argues that New Jersey law should apply because that is where the drug was researched and where information about the drug was compiled, and that even if Texas law applies, some of her claims are still viable. Finally, Plaintiff asks for a continuance to further develop the evidentiary record, a motion which Defendant opposes.


A. Summary Judgment Standard

Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment will not be denied based on mere allegations or denials in the pleadings; instead, some evidence must be produced to support a material fact. U.S. v. Premises Known as 717 S. Woodward Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993). However, the court will view any evidence in favor of the nonmoving party and extend any reasonable favorable inferences to be drawn from that evidence to that party. Hunt v. Cromartie, 526 U.S. 541, 552 (1999).

On this motion, the Court takes to be true the facts identified by Defendant as undisputed. This is because Local Civil Rule 56.1(a) requires a summary judgment movant to furnish a Statement of Material Facts not in Dispute citing to evidence in the record, which Defendant in this case did. This rule then requires the non-movant to furnish, with his opposition papers, a responsive Statement of Material Facts addressing each paragraph of the movant's statement, indicating agreement or disagreement and, if not agreed, stating each material fact in dispute and citing to affidavits or other documents in the record of the motion. L. Civ. R. 56.1(a). Plaintiff did not include any response to Defendant's statement of undisputed material facts, and instead offered her own statement discussing separate facts, to which Defendant duly responded in accordance with the Rule. The local rule provides that "any material fact not disputed shall be deemed undisputed for purposes of the summary judgment motion." Id. This Court has prescribed this procedure because it is necessary to determine under Rule 56(c), recently amended as Rule 56(c)(2), whether there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(c)(2), Fed. R. Civ. P. As L. Civ. R. 56.1 now explicitly provides, the consequence of the opponent's failure to address the movant's Statement of Material Facts not in Dispute has long been clear, namely, the movant's facts, duly cited to the record of evidence, are deemed unopposed for purposes of adjudicating the motion. See, e.g., White v. Camden City Bd. of Educ., 251 F. Supp. 2d 1242, 1246 n. 1 (D.N.J. 2003), aff'd, 90 Fed. App'x 437 (3d Cir. 2004). Therefore, to the extent they are supported by record evidence, the facts identified by Defendant as undisputed will be taken as such.

B. Motion to Continue

Rule 56(f) provides that "[i]f a party opposing the motion shows by affidavit that, for specific reasons, it cannot present facts essential to justify its opposition, the court may . . . order a continuance," among other possible forms of relief. 56(f)(2), Fed. R. Civ. P. The Rule requires "that a party seeking further discovery in response to a summary judgment motion submit an affidavit specifying, for example, what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained." Dowling v. City of Philadelphia, 855 F.2d 136, 140 (3d Cir. 1988). Plaintiff seeks a continuance, arguing that discovery is incomplete.

The motion will be denied because Plaintiff neither provides an affidavit nor otherwise specifies why the information sought in discovery is necessary to enable her to oppose Defendant's motion. See id. ("Dowling did not file a Rule 56(f) affidavit with her response to the City's motion for summary judgment, and therefore, as a procedural matter alone, she has failed to comply with the rule."). The only facts at issue in this motion are those related to the choice of law and the nature of the notice given to Defendant regarding Plaintiff's warranty claims. Plaintiff does not seek discovery on either matter, and indeed there is no dispute over those facts. Perhaps for that reason, while Plaintiff specifically identifies the discovery materials she seeks - papers submitted to the FDA for the approval of Lamisil and a report generated pursuant to the approval process - Plaintiff does not explain how this information would be useful in opposing the present motion. The motion to continue will be denied because Plaintiff has not complied with either the procedural or substantive requirements of Rule 56(f).

C. Choice of Law

1. Standard

In a diversity case filed in New Jersey, New Jersey choice of law rules govern. See Lebegern v. Forman, 471 F.3d 424, 428 (3d Cir. 2006). In tort cases, New Jersey follows the "most significant relationship" test adopted in the Restatement (Second) of Conflict of Laws as well as the Restatement's default rule that the location of the injury in tort cases determines the law to be applied unless some other location has a more significant relationship. P.V. ex rel. T.V. v. Camp Jaycee, 962 A.2d 453, 460 (N.J. 2008); Restatement (Second) of Conflict of Laws § 146 (1971). In their briefing on this motion, the parties both apply this test to all of Plaintiff's claims. Except for the express warranty claim, this is undoubtedly correct, because all the other claims are considered torts. See Tex. Civ. Prac. & Rem. Code Ann. § 82.001(2) (providing rules for liability in tort for breach of implied warranty and misrepresentation claims); N.J. Stat. Ann. 2A:58C-1(3) (same).

With respect to the express warranty claim, which sounds in contract, the default rule specific to tort law found in the Restatement does not apply as the parties, perhaps inadvertently, suggest. The extent to which the rest of the Restatement applies is not as clear as in the area of tort, but the Court will apply the Restatement's rules for choice-of-law in contract claims. See Payne v. FujiFilm U.S.A., Inc., Civil Action No. 07-385 (GEB), 2010 WL 2342388, at *6 (D.N.J. May 28, 2010) (citing Agostino v. Quest Diagnostics Inc., 256 F.R.D. 437, 461 (D.N.J. 2009) (Chesler, J.) (applying same test to contract claim)). Although the New Jersey Supreme Court has not explicitly adopted the Restatement's test for contract claims, New Jersey courts have regularly applied the "most significant relationship" test to such claims. See Gilbert Spruance Co. v. Pennsylvania Mfrs. Ass'n Ins. Co., 629 A.2d 885, 888 (N.J. 1993) (citing State Farm Mut. Auto. Ins. Co. v. Simmons' Estate, 417 A.2d 488 (N.J. 1980)).

The Court therefore applies the Restatement's "most significant relationship" test to all the claims. For the tort claims, the Restatement provides that the case will be "determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6." § 145. The default rule contained in § 146 of the Restatement provides that "the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties." § 146; Camp Jaycee, 962 A.2d at 461. The standard for contract claims is identical, except the word "transaction" is substituted for "occurrence," § 188, and there is no similar default rule regarding the location of the injury.

Ultimately, both tests involve the significance of the states' relations to the parties and events in light of the principles contained in ยง 6 of the Restatement, which lists several factors relevant to the choice of law analysis that when "reduced to their essence . . . are: (1) the interests of interstate comity; (2) the interests of the parties; (3) the interests underlying the field of tort law; (4) the interests of judicial administration; and (5) the ...

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