The opinion of the court was delivered by: Gilbert, District Judge
On October 30, 2002, Jeff Giles (Jeff) drove to a rural road, stopped his car, and shot himself in the heart with his shotgun. Two days earlier, Jeff had started taking Wyeth's antidepressant drug, Effexor. Jacquelyn Giles (Giles), Jeff's widow, contends that Effexor caused her husband to commit suicide.
In her complaint, Giles alleges that Jeff was a member of a "small vulnerable subpopulation" in whom Effexor and other selective serotonin reuptake inhibitors (SSRIs) and selective seratonin norepinephrine reuptake inhibitors (SNRIs) increase the risk for violence and suicide. Giles brings this action against Wyeth*fn1 , the manufacturer of Effexor, alleging that it has known about this small vulnerable subpopulation for years, but "has failed to conduct any prospective tests to determine the frequency of this phenomenon or to develop means of identifying, screening, and protecting those patients who are in this risk group." (Sec. Amend. Compl. at 3). Giles argues that Wyeth should have warned doctors, pharmacists, and patients about this risk.
Giles alleges Wyeth has "utilized material misrepresentations to promote and market Effexor, inter alia via the practice of 'ghost writing' scientific articles for publication under the names of prominent academic 'authors' and by making false and misleading statements regarding the efficacy and superiority of Effexor, viz. a viz. its competitors." (Sec. Amend. Comp. at 3). She has set forth three, alternative theories of liability under Illinois law. First, she claims Wyeth is strictly liable for marketing defects and misrepresentations. Second, she states a claim for negligence predicated on Wyeth's "failure to warn, failure to test, failure to implement appropriate patient screening mechanisms, negligent misrepresentations, and over-promotion of Effexor." (Sec. Amend. Compl. at 5). Finally, Giles claims Wyeth is liable for breach of express and implied warranties.
Wyeth has filed a motion for partial summary judgment on Giles's failure to warn and breach of express warranty claims (Doc. 86). Giles has responded to Wyeth's motion (Doc. 103) and Wyeth has replied to her response (Doc. 107).
In 1995, Jeff was injured when a rock fell on his head while he was working in a coal mine. Though the injury caused him substantial pain, he continued to work after the injury. By 2002, however, the pain was too much, so, Jeff had surgery that September. The surgery was successful and Jeff's prognosis good.
Jeff went to his doctor, Dr. Pramote Anantachai (Dr. Pramote), on October 28, 2002, complaining that he was tired, unmotivated, and depressed. Dr. Pramote concluded that Jeff had depression and prescribed Effexor. Dr. Pramote did not record -- and does not really remember -- what he told Jeff about Effexor, but he tells all patients to whom he prescribes antidepressants standard things. Dr. Pramote saw no evidence that Jeff was suicidal. If he had been, Dr. Pramote would have sent Jeff to the emergency room immediately.
Since Jeff's suicide, Dr. Pramote has received several suicide-related warnings or precautions on Effexor. In August 2003 and in June 2004, he received "Dear Doctor" letters from Wyeth warning of the risk of suicide in adolescents and adults. He also reviewed the "black-box" suicide warning placed on the drug after January 2005. The parties dispute the nature of the warnings Dr. Pramote has given to patients since Jeff's suicide. It is unclear from the record whether he has continued to prescribe Effexor to first-time users since Jeff's death.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). In determining the existence of a genuine dispute of material fact, the Court construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath, 211 F.3d at 396.
If the moving party meets its burden, the nonmoving party has the burden "to go beyond the pleadings and affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Borello v. Allison, 446 F.3d 742, 748 (7th Cir. 2006) (internal quotation marks and citations omitted); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact ...