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IN RE REZULIN PRODUCTS LIABILITY LITIGATION

United States District Court, S.D. New York


March 16, 2004.

In re: REZULIN PRODUCTS LIABILITY LITIGATION (MDL No. 1348) This Document Relates to: 01 Civ. 6053 01 Civ. 6058 01 Civ. 5761 01 Civ. 10571

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

PRETRIAL ORDER NO. 242 (Motions of Certain Louisiana Pharmacy Defendants)
In these four actions, originally filed in Louisiana state courts, pharmacy defendants McDonald Pharmacy, Northshore Discount Pharmacy, Inc., Eckerd Company and Wendling's Pharmacy move to dismiss all claims asserted against them. Plaintiffs seek to hold the defendants liable under some or all of the following theories: negligence, negligent misrepresentation, breach of warranty, strict liability, fraud and deceit, agent misrepresentation and redhibition. The crux of the claims against the pharmacies is that they dispensed Rezulin to the plaintiffs without warning them of Rezulin's alleged dangers.

The complaints fail to state a claim upon which relief may be granted against the pharmacy defendants for the reasons cited in PTO 220 and numerous earlier decisions, including PTO 65 and In Re Rezulin Products Liability Litigation ("Rezulin I").*fn1 Notwithstnding the plaintiffs" claims that these cases arc different "because of the allegations of knowledge on the part of the Pharmacy," the Court has reviewed the complaints and finds them in all material respects to be indistinguishable from those at issue in the cases previously decided.

  Furthermore, the effect of the Court's prior decisions cannot be avoided — as attempted by the Johnson plaintiffs — simply by asserting a claim for redhibition under the Louisiana Civil Code.*fn2 The pertinent provision, Article 2545, imposes liability on a seller who knowingly sells a defective product without warning about the defect, and allows recission of the Page 2 me: and specified monetary damages:

[A] seller Who knot's that the thing lie sells has a defect but omits to declare it. or a seller who declared that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees."*fn3
  The issue whether a redhibition claim remains viable against pharmacies in light of limitations that Louisiana jurisprudence so far has imposed on their liability apparently has not yet been addressed by any stale court. Nevertheless, the sign posts are clear. Louisiana courts have circumscribed the liability of pharmacies on failure to warn claims.*fn4 On that basis this Court predicted in Rezulin I that the Louisiana courts would not recognize liability on the part of pharmacists for "failing to tell patients of the harmful side-effects of Rezulin. whether that failure's couched in terms of failure to warn, breach of warranty or graudulent misrepresentation."*fn5 Failure o tell patients of the harmful side-effects of Rezulin is also the essence of the plaintiffs' claims for redhibition.*fn6 The Court's prediction in Rezulin I therefore applies-equarely to claims for redhibition it is unreasonable to suppose that the Louisiana courts would impose liability on pharmacies or pharmacists under this theory. Indeed, a Louisiana federal court has reached precisely this conclusion.*fn7

  Plaintiffs in Johnson (01 Civ. 10571) rely on a Magistrate's Report and Recommendation in Callis v. Warner-Lambert, No. 01 Civ. 0705 (W.D. La. August 8, 2001), which recommended remand of a Rezulin case to a Louisiana state court on;he ground that a pharmacy Page 3 could be held liable under Louisiana law for the sale of Rezulin. The unpublished report, the final disposition of which is unknown, is based explicitly on the Magistrate's disagreement with Rezulin I. This Court declines to follow it.*fn8

  Accordingly, the motions of McDonald Pharmacy, Northshore Discount Pharmacy, Inc., Eckerd Company and Wendling's Pharmacy to dismiss the complaints against them [00 Civ. 2843 docket items 1110, 1112, 1116, 1119] are granted.

  SO ORDERED.


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