Peters, George H. v. Astrazeneca, LP , 224 F. App'x 503 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 17, 2007*
Decided March 5, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 06-2930
GEORGE H. PETERS, Appeal from the United States
Plaintiff-Appellant, District Court for the Western District of
Wisconsin
v.
No. 05-C-649-C
ASTRAZENECA LP and PROCTER
& GAMBLE DISTRIBUTING CO., et Barbara B. Crabb,
al., Chief Judge.
Defendants-Appellees.
ORDER
George Peters, a Wisconsin prisoner, claims that he cannot properly taste food
as a result of taking Prilosec OTC, the over-the-counter version of prescription Prilosec,
a drug used to treat heartburn. He sued the joint marketers and distributors of
Prilosec OTC, AstraZeneca LP (“AstraZeneca”) and Procter & Gamble Distributing Co.,
now known as Procter & Gamble Distributing LLC (“P&G”), as well as an officer of
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. Fed. R. App. P. 34(a)(2).
No. 06-2930 Page 2
each. He claimed that the defendants failed to include adequate warnings of the risk
of damage to taste from use of Prilosec OTC. Peters proceeded under theories of
negligence and strict liability, but the district court ruled on summary judgment that
Peters’ evidence, even if accepted by a trier of fact, failed to show causation under
either theory. Peters appeals that ruling, as well as the district court’s earlier dismissal
of the two officers and its denial of Peters’s request for a default judgment. We affirm.
Before we reach the merits of this appeal, we must address a jurisdictional
question. This is a diversity action under 28 U.S.C. § 1332(a), and though it appears
that more than $75,000 is in controversy, the record did not reveal whether the parties
are diverse. (Peters is pro se, and thus might have some excuse for this; the defendant-
appellees have none.) Peters had several chances, but he did not provide his own
citizenship or the correct citizenship for one of the appellees. The appellees, too, fell
down on the job. They asserted that because Peters is a Wisconsin inmate, he is a
automatically a Wisconsin citizen. But his place of incarceration is irrelevant; he is a
citizen of the state in which he lived before incarceration or the place he intends to live
after his release. Bontkowski v. Smith, 305 F.3d 757, 763 (7th Cir. 2002). AstraZeneca
told us that it is a limited partnership, but rather than furnishing the citizenship of all
of its partners so that we could determine its citizenship, see Cosgrove v. Bartolotta,
150 F.3d 729, 731 (7th Cir. 1998), it told us only that none of its partners is a
Wisconsin citizen. P&G told us that it is now an LLC, but we needed to know its status
at the time the complaint was filed, see Johnson v. Wattenbarger, 361 F.3d 991, 993
(7th Cir. 2004). In order to ensure that federal jurisdiction was proper, we ordered the
parties to submit supplemental jurisdictional statements that fully comply with Fed
R. App. P. 28 and Circuit Rule 28. Those statements at last filled in the necessary
blanks. Peters is a Wisconsin citizen after all, and P&G was an Ohio citizen when the
complaint was filed, because it was incorporated in and had its principal place of
business there, see Smoot v. Mazda Motors of Am., Inc., 469 F.3d 675, 676 (7th Cir.
2006). Based on the citizenship of its partners, AstraZeneca is a citizen of Delaware,
Massachusetts, New Jersey, New York, and Sweden, see Cosgrove, 150 F.3d at 731. The
parties are therefore diverse, and the district court properly exercised jurisdiction
under 28 U.S.C. § 1332.
The material facts, with all reasonable inferences drawn in Peters’s favor, are
as follows: While in prison in Oklahoma around the end of 2003, Peters first took
Prilosec OTC for approximately 10 days. He noticed a distortion in his sense of taste
at the time, but he did not report this to anyone. He next took Prilosec OTC under a
doctor’s direction for about a year beginning in early 2004, while residing in a
Wisconsin prison. He again noticed taste loss or distortion and this time reported it to
a physician several times; he switched to a different medication in 2005.
The packaging and insert for Prilosec OTC do not warn that taste distortion or
loss is a potential side effect of ingestion. The package insert and Physician’s Desk
No. 06-2930 Page 3
Reference entry for the prescription version of Prilosec, however, list taste loss among
several “adverse experiences” that had occurred in “<1% of patients or subjects.” Both
the insert and Physician’s Desk Reference also advise that for these adverse
experiences, “[i]n many instances the relationship with Prilosec was unclear.” Users
of prescription Prilosec reported to the Food and Drug Administration over 25,000
adverse incidents that they experienced while taking the drug. Among the reported
events was aguesia, the absence or impairment of one’s sense of taste, reported by .2%
of the users. Importantly, however, the report’s front page states that its information
had “not been scientifically or otherwise verified as to a cause and effect relationship
and cannot be used to estimate the incidence of adverse reactions.”
No expert opinion in this record supports the proposition that Prilosec (either
prescription or over-the-counter) causes taste loss. Instead, the defendants’ witness,
Dr. Douglas Bierer, P&G’s former Director of Clinical and Regulatory Development,
attested only that once ingested, “there is essentially no difference” between Prilosec
OTC and prescription Prilosec. Furthermore, he explained that none of the more than
10,000 participants in the clinical studies conducted for the release of Prilosec OTC
reported taste loss or distortion.
After Peters filed suit, the district court first screened Peters’s complaint under
28 U.S.C. § 1915A and dismissed the two corporate officers. (As we note below, this was
an error.) The court reasoned that under Wisconsin Statute § 183.0304 an officer is not
liable for acts of a limited liability company. The remaining defendants, AstraZeneca
and P&G, then moved for summary judgment, arguing that there was insufficient
evidence that Prilosec OTC caused Peters’s taste loss. In response, Peters moved for
default judgment because the defendants had not filed an answer. The district court
denied Peters’s motion because the defendants were defending the suit with their
summary judgment motion. Peters then opposed the summary judgment motion, but
the district court granted summary judgment for the defendants, holding that Peters
had not provided evidence that Prilosec OTC had caused his injuries, or indeed, that
he had suffered an injury at all.
On appeal, Peters first argues that the district court erred in denying his motion
for default judgment. A district court may enter a default judgment against a party
who “has failed to plead or otherwise defend” the case, Fed. R. Civ. P. 55(a).
Nevertheless, we review the district court’s refusal to do so for an abuse of discretion.
See Silva v. City of Madison, 69 F.3d 1368, 1377 (7th Cir. 1995). The district court
found that the defendants had “otherwise” been defending the case, because
AstraZeneca and P&G had filed motions to dismiss and for summary judgment. We
have upheld a district court’s discretion to deny a motion for default judgment in
similar situations where, as here, the defendants were defending the case but
neglected to file an answer, so long as the plaintiff was not prejudiced. See Mommaerts
v. Hartford Life and Accident Ins. Co., No. 06-2952, 2007 WL 38406 (7th Cir. Jan. 8,
No. 06-2930 Page 4
2007); Pepper v. Village of Oak Park, 430 F.3d 805, 812 (7th Cir. 2005); Isby v. Clark,
100 F.3d 502, 504 (7th Cir. 1996). We see no prejudice to Peters, and we find no abuse
of discretion.
Next, Peters argues that summary judgment in favor of the defendants on his
strict liability and negligence claims was improper. Wisconsin courts recognize both
strict liability and negligence theories premised upon a manufacturer’s failure to warn
consumers. See Gracyalny v. Westinghouse Elec. Corp., 723 F.2d 1311, 1317 (7th Cir.
1983). Although strict liability focuses on the defendants’ product, and negligence
focuses on the defendants’ conduct, to prevail under either theory Peters had to offer
evidence that Prilosec OTC caused his injuries—in this case a distorted or lost sense
of taste. Gracyalny, 723 F.2d at 1317; Green v. Smith & Nephew AHP, Inc., 629 N.W.2d
727, 813 (Wis. 2001); Schreiner v. Wieser Concrete Prods., Inc., 720 N.W.2d 525, 528
(Wis. Ct. App. 2006) (negligence); Westphal v. E.I. du Pont de Nemours & Co., 531
N.W.2d 386, 391 (Wis. Ct. App. 1995) (strict liability).
To prove causation in a products liability case, a plaintiff ordinarily must
provide expert testimony because of the specialized knowledge required; thus, without
expert testimony that Prilosec OTC caused his injury, Peters faced an almost
insurmountable hurdle in contesting the defendants’ summary judgment motion. See
Smoot, 469 F.3d at 680-81 (holding that plaintiffs’ case was insufficient to survive
summary judgment under Wisconsin negligence law where they presented no expert
testimony that product caused their injuries); Weiss v. United Fire and Cas. Co., 541
N.W.2d 753, 757 (Wis. 1995) (noting that the Wisconsin Supreme Court often requires
expert testimony in cases involving medicine because specialized knowledge, skill and
experience are necessary) (citation omitted).
Peters responds that the product inserts and FDA report (which state that a
small percentage of users have reported taste loss following the use of prescription
Prilosec) provided evidence that prescription Prilosec causes taste loss. And, Peters
notes, Dr. Bierer equated the effects of ingesting the prescription and over-the-counter
versions of Prilosec. According to Peters, this combined evidence shows that Prilosec
OTC, too, causes taste loss.
The evidence does not, however, prove as much as Peters thinks. First, the
inserts and FDA report on which he relies specifically disclaim a cause and effect
relationship between prescription Prilosec and taste loss. Second, they show only that
a small percentage (.1% to .2%) of users of prescription Prilosec claimed to have
experienced taste loss while using the drug. Even if this were suggestive of a
correlation between prescription Prilosec use and taste loss (a matter we need not
decide), a correlation alone is not evidence of causation. Norris v. Baxter Healthcare
Corp., 397 F.3d 878, 885 (10th Cir. 2005) (“A correlation does not equal causation.”);
Burleson v. Texas Dep’t of Criminal Justice, 393 F.3d 577, 585-86 (5th Cir. 2004)
No. 06-2930 Page 5
(upholding exclusion of expert causation testimony based solely upon studies showing
a mere correlation between defendant’s product and plaintiff’s injury). Because Peters
lacks evidence that either prescription or over-the-counter Prilosec causes taste loss,
the district court properly granted summary judgment to the defendants. See Smoot,
469 F.3d at 682; Cramer, 172 N.W.2d at 429.
Peters finally argues that the district court improperly dismissed his claims
against the officers under 28 U.S.C. § 1915A. While Peters is correct that § 1915A does
not apply to his claims, because he has not named a government entity or officer as a
defendant, see 28 U.S.C. § 1915A, we may affirm on any basis in the record, Chicago
Dist. Council of Carpenters Pension Fund v. Reinke Insulation Co., 464 F.3d 651, 657
n.3 (7th Cir. 2006).The appellees argue that the district court correctly dismissed
Peters’s claims against them because Wis. Stat. § 183.0304 bars such claims. That
statute, however, applies only to officers of limited liability companies organized under
the laws of Wisconsin and thus is not available for these defendants. Even so, Peters
cannot succeed against the officers for the same reason that he lacks a case against the
corporations—he has not presented sufficient evidence that Prilosec OTC caused his
injuries. Consequently, any error in dismissing these defendants under § 1915A was
harmless. See Greeno v. Daley, 414 F.3d 645, 657 (7th Cir. 2005) (affirming dismissal
of unserved defendants where plaintiff pointed to no evidence that would have defeated
summary judgment for those defendants).
AFFIRMED.