United States District Court, N.D. Illinois, Eastern Division
August 8, 2005.
GALE C. ZIKIS, individually and as administrator of the Estate of Donald R. Zikis, deceased, Plaintiff,
PFIZER, INC., a Delaware corporation, Defendant.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Pfizer, Inc.'s
("Pfizer") motion to certify an interlocutory appeal. For the
reasons stated below, we deny the motion.
Plaintiff Gale C. Zikis ("Zikis") brought the instant action on
behalf of herself and on behalf of the estate of her deceased
husband Donald R. Zikis. Zikis alleges that on December 16, 2002,
Donald R. Zikis died as a result of taking the prescription drug
Zoloft. Zikis alleges that Pfizer has known about serious side
effects associated with Zoloft for a long time, but has only
recently begun to inform physicians and consumers about the side
effects. Zikis' complaint includes a negligence claim (Count I), a strict liability claim (Count II),
a breach of implied warranty claim (Count III), a breach of
express warranty claim (Count IV), and a fraud claim (Count V).
Prior to the start of discovery in the instant action, Pfizer
filed a motion for summary judgment in which it argued that the
state claims set forth in Zikis' complaint are "preempted by the
Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301, et seq.,
and its implementing regulations." (Def.'s Mot. Summary J. 1). We
subsequently denied Pfizer's motion for summary judgment and
concluded that we could not find that Zikis' state claims were
preempted by federal law. Pfizer, pursuant to 28 U.S.C. § 1292(b)
("Section 1292(b)"), has now filed a motion to certify an
interlocutory appeal of this court's denial of Pfizer's motion
for summary judgment.
The provisions set forth in Section 1292(b) state, in part, the
When a district judge, in making in a civil action an
order not otherwise appealable under this section,
shall be of the opinion that such order involves a
controlling question of law as to which there is
substantial ground for difference of opinion and that
an immediate appeal from the order may materially
advance the ultimate termination of the litigation,
he shall so state in writing in such order.
28 U.S.C. § 1292(b). DISCUSSION
Pfizer argues that the court should certify, pursuant to
Section 1292(b), an interlocutory appeal of the court's denial of
Pfizer's motion for summary judgment. (Def.'s Mot. 2). Zikis
contends that certification of Pfizer's appeal is not appropriate
under Section 1292(b). (Pl.'s Response 1-2). In order for a
district court to certify an interlocutory appeal pursuant to
Section 1292(b), "there must be a question of law, it must be
controlling, it must be contestable, and its resolution must
promise to speed up the litigation." See Ahrenholz v. Board of
Trustees of the University of Illinois, 219 F.3d 674, 675-76
(7th Cir. 2000) (stating that "[u]nless all these criteria are
satisfied, the district court may not and should not certify" the
appeal pursuant to Section 1292(b)) (emphasis in the original). An
issue is contestable, for purposes of Section 1292(b), if a
"there is substantial ground for difference of opinion" with
respect to the issue. 28 U.S.C. § 1292(b); see also Ahrenholz,
219 F.3d at 675.
In the instant action, three of the four criteria required to
certify Pfizer's appeal pursuant to Section 1292(b) appear to be
satisfied. Specifically, the question of whether the state claims
set forth in Zikis' complaint are preempted by federal law is a
"question of law" for purposes of a Section 1292(b) appeal.
Ahrenholz, 219 F.3d at 675-76. Further, the issue of federal
preemption is "indeed a controlling issue" and an issue which,
if resolved, could potentially expedite the instant action by
"head[ing] off protracted, costly litigation." Id. at
675-77(emphasis in the original). Pfizer argues that the remaining requirement of Section 1292(b)
is also satisfied since "there is substantial ground for
difference of opinion" with respect to the question of whether
the state claims set forth in Zikis' complaint are preempted by
federal law. 28 U.S.C. § 1292(b). Specifically, Pfizer cites to a
government Amicus brief and the opinions of two United States
District Courts, namely Dusek v. Pfizer Inc., 2004 WL 2191804,
at *1 (S.D.Tex. 2004) and Needleman v. Pfizer Inc., 2004 WL
1773697, at *1 (N.D.Tex. 2004). (Def.'s Mot. 5-6; Ex. D). The
court notes that the Amicus brief cited by Pfizer, which was
filed by the government over two years ago in another unrelated
case, contains nothing more than legal arguments by counsel.
(Def.'s Ex.'s D). Further, while the Dusek and Needleman
opinions may be different from our summary judgment decision,
such opinions, from district courts outside of the Seventh
Circuit, do not constitute grounds so substantial to warrant the
certification of a Section 1292(b) appeal. See Shepherd
Investments Intern., Ltd. v. Verizon Communications, Inc., 2005
WL 1475323, at *2 (E.D.Wis. 2005) (stating that in order "[t]o
satisfy this requirement, it is not enough that there be a
difference of opinion, there must be a substantial ground for
such difference."). In the instant action, there is not
sufficient justification for the court to conclude that there is
a "substantial ground for difference of opinion" with respect
to the question of whether the state claims set forth in Zikis'
complaint are preempted by federal law. Accordingly, the
requirement that the certified issue be "contestable" for
purposes of Section 1292(b) is not satisfied. Ahrenholz,
219 F.3d at 675-76(quoting 28 U.S.C. § 1292(b) (emphasis added). Therefore, we deny Pfizer's
motion to certify an interlocutory appeal.
Based on the foregoing analysis, we deny Pfizer's motion to
certify an interlocutory appeal.
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