United States District Court, Southern District of New York
May 7, 2003
IN RE: REZULIN PRODUCTS LIABILITY LITIGATION.
The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge
PRETRIAL ORDER NO. 146
(Motions to Dismiss — Dr. Olefsky)
Plaintiffs in each of these twenty seven actions claim injury resulting from their use of Rezulin. They brought these actions in the California state courts against Pfizer, Inc. and, among others, Dr. Jerrold Olefsky, an endocrinologist and diabetes researcher who did research on Rezulin for the Diabetes Research Program, an independent National Institute of Health sponsored study. There is no suggestions that Dr. Olefsky ever had any contact with any of the plaintiffs or any of their physicians. His presence in the complaints appears, in light of his California residence, to reflect an effort to defeat removal by including a resident defendant in the action.
Following removal of the actions, plaintiffs moved to remand these cases based on the presence of Dr. Olefsky. After extensive argument, Judge Manuel L. Real in the United States District Court for the Central District of California, denied the motions to remand on the ground that Dr. Olefsky had been joined fraudulently inasmuch as he "owed no legal duty to any of the plaintiffs" and the plaintiffs therefore had "no possibility" of prevailing against him. Brown Decl. Ex. A, at 2. The actions then were transferred to this Court by the Multidistrict Panel and the present motions filed.
The complaints purport to allege claims against Dr. Olefsky for negligence, negligence per se, breach of implied warranty, breach of express warranty, deceit by concealment, negligent misrepresentation, and violation of Calif. Business and Professions Code §§ 17200 and 17500. The factual allegations underlying these claims, however, are identical. The plaintiffs assert that Dr. Olefsky worked on testing and evaluating Rezulin, that he had a duty to investigate Rezulin and to provide warnings concerning its efficacy and risks, oversaw the diabetes study referred to above, and that he "fought vigorously for the use of Rezulin" despite alleged knowledge of its supposed "lack of efficacy [and] potential for severe and life-threatening adverse health effects including permanent liver damage."*fn1
To begin with, each of the legal theories upon which plaintiffs purport to see presupposes the existence of a legal duty on the part of Dr. Olefsky.*fn2 As Judge Real correctly ruled, there is no basis for imposing upon a medical researcher a duty to individuals who eventually take a drug as a result of prescriptions written by their treating physicians. Indeed, the learned intermediary doctrine demonstrates that the duty to warn in these circumstances runs from the manufacturer of the drug to the prescribing physician and from the prescribing physician to the patient. See, e.g., Brown v. Superior Court, 44 Cal.3d 1049, 1061-62 n. 9, 245 Cal.Rptr. 412, 419 n. 9 (1988). A clinical researcher such as Dr. Olefsky is not part of the chain.
While there are other bases for reaching this result as to all or part of these complaints, this is sufficient. Dr. Olefsky's motion to dismiss as to him is granted in each of the above captioned cases.