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Christopher Shepherd v. Eli Lilly and Company

September 26, 2012

CHRISTOPHER SHEPHERD, PLAINTIFF-APPELLANT,
v.
ELI LILLY AND COMPANY DEFENDANT-APPELLEE.



Appeal from a judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge).

11-3056-cv

Shepherd v. Eli Lilly and Company

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court's Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 26th day of September, two thousand twelve.

PRESENT: PIERRE N. LEVAL, JOSE A. CABRANES, ROBERT A. KATZMANN, Circuit Judges.

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on June 28, 2011 is AFFIRMED.

Plaintiff-appellant Christopher Shepherd appeals from an award of summary judgment in favor of defendant Eli Lilly & Co. ("Eli Lilly"). In this action, Shepherd is seeking compensation for personal injuries allegedly caused by Zyprexa, a drug manufactured by Eli Lilly.

We review an order granting summary judgment de novo and "resolv[e] all ambiguities and draw[ ] all permissible factual inferences in favor of the party against whom summary judgment is sought." Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (quoting Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)); FED. R. CIV. P. 56. We assume the parties' familiarity with the facts of prior proceedings in this action, which we reference only as necessary to explain our decision to affirm.

BACKGROUND

Shepherd, a resident of Oklahoma, commenced this action against Eli Lilly in the Eastern District of Oklahoma on February 11, 2010. The case subsequently was transferred to the Eastern District of New York pursuant to an order of the Judicial Panel on Multidistrict Litigation. The parties agree that Oklahoma law governs Shepherd's claims.

Zyprexa was first prescribed to Shepherd in 1997, and he took the drug (albeit not continually) until he was diagnosed with diabetes in 2009.

In 2003, the Food & Drug Administration ("FDA")--after analyzing the increased incidents of diabetes in patients using certain antipsychotic drugs, including Zyprexa--announced that it would require labels of these antipsychotic drugs, including Zyprexa, to include a warning about the risks of hyperglycemia and diabetes mellitus. Head v. Eli Lilly & Co., 649 F. Supp. 2d 18, 25 (E.D.N.Y. 2009), aff'd, 394 F. App'x 819 (2d Cir. 2010). Eli Lilly added the required language to Zyprexa's label on September 16, 2003 and issued a press release that same day. Id. On March 1, 2004, Eli Lilly sent a "Dear Doctor" letter to physicians in the United States informing them of the 2003 label change.

In July 2005, Shepherd's doctor, Dr. Steven Delia, advised him of the risk that Zyprexa might cause diabetes. Afterwards, Shepherd was taken off Zyprexa for a three-week period. The replacement drug, Seroquel, did not treat his symptoms ...


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