The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Rosemary Brown ("Plaintiff"), as Special Administrator for the Estate of David Brown (deceased), filed suit against SmithKline Beecham Corporation ("Defendant") d/b/a GlaxoSmithKline under a variety of causes of action all related to product liability. Before the Court now is Defendant's Motion for Summary Judgment requesting an order against Plaintiff on each cause of action. For the reasons stated below, the Motion for Summary Judgment is GRANTED.
Undisputed Facts Surrounding the Decedent's Stroke
On December 17, 2002, David Brown ("Mr. Brown") died as a result of a stroke he suffered on July 25, 1995. On July 8, 1995, Mr. Brown purchased over-the-counter medication called Contac (R) in an effort to treat cold symptoms. Contac (R) contained an ingredient called phenylpropanolamine. In 1990, Mr. Brown was diagnosed with hypertension. Mr. Brown's wife, Plaintiff, witnessed Mr. Brown take Contac (R) on July 11 and July 21 of 1995. Both of these two instances of ingestion of Contac (R) occurred outside of the seventy two hours before Mr. Brown suffered his stroke. Mr. Brown did not take Contac (R) regularly and Plaintiff did not see him take Contac (R) at any other times.
Dr. Shymal Bose, a specialist in internal medicine and gastroenterology, began treating Mr. Brown in 1990 for hypertension. He prescribed medication for Mr. Brown, discussed the dangers of hypertension with him, including strokes, and advised him to stop smoking and drinking alcohol. In February 1992, Dr. Bose saw Mr. Brown and took notes indicating Mr. Brown had not taken his hypertension medication in over nine months and was drinking alcohol heavily. In October of that same year, Mr. Brown saw Dr. Bose again and told him that he was not taking his blood pressure medication. Ultimately, Dr. Bose opined that Mr. Brown's stroke was caused by hypertension and he expressed no opinion as to whether phenylpropanolamine was associated with causing strokes.
Dr. Richardson, a board-certified physician who was the attending emergency physician that created Mr. Brown's emergency room report, stated that he did not form an opinion as to the cause of Mr. Brown's stroke. Dr. Amrijit Bhasin, a board-certified neurologist who examined Mr. Brown after the onset of his stroke, opined to a reasonable degree of medical certainty that hypertension was the most likely cause of Mr. Brown's stroke. Dr. Rhagu Singh, another board-certified neurologist, consulted on Mr. Brown's case and testified that to a reasonable degree of medical certainty that hypertension was the most likely cause of Mr. Brown's stroke. Dr. Singh did not form an opinion as to whether phenylpropanolamine caused or contributed to Mr. Brown's stroke.
Undisputed Procedural Facts
This products liability action was originally filed against Defendant in an Illinois state circuit court of St. Clair county with Mr. Brown as the plaintiff. Mr. Brown subsequently died and the complaint was amended to include wrongful death causes of action. The Amended Complaint contains twelve causes of action against two named defendants- Defendant and GlaxoSmithKline PLC, a business entity located in the United Kingdom. Although not labeled as counts, the Court will treat each separately enumerated cause of action as a count for purposes of this motion.
Count I is entitled Fraud and Deceit- Fraudulent Concealment and is brought against both defendants. Count II is entitled Negligence and Negligent Misrepresentation and is brought against both defendants. Count III is entitled Negligence and is brought against both defendants. Count IV is entitled Negligence Per Se and is brought against both defendants. Count V is entitled Strict Liability in Tort- Failure to Warn and purports to be against both defendants. Count VI is entitled Strict Product Liability- Design Defect and is brought against both defendants. Count VII is entitled Breach of Implied Warranty of Merchantability and is brought against both defendants. Count VIII is entitled Breach of Express Warranty and is brought against both defendants. Count IX is entitled Survival Action Against Defendant GlaxoSmithKline, PLC. Count X is entitled Survival Action Against Defendant SmithKline Beecham Corporation.*fn1 Count XI is entitled Wrongful Death Action Against Defendant GlaxoSmithKline, PLC. Finally, Count XII is entitled Wrongful Death Action Against Defendant SmithKline Beecham Corporation.*fn2
Based upon diversity of citizenship of the litigants, the matter was removed to the federal district court for the Southern District of Illinois. The case was then transferred to the Western District of Washington for coordinated or consolidated pretrial proceedings under 28 U.S.C. § 1407, the federal statute dealing with multidistrict litigation. Then, in May 2006, the case was remanded back to the Southern District of Illinois pursuant to a conditional remand order and subject to a pretrial order issued in the multidistrict proceeding. Finally, on October 20, 2006, the case was transferred to this Court based on Defendant's successful motion to transfer venue.
In the multidistrict pretrial proceedings, the court ruled that summary judgment was appropriate in cases where plaintiffs ingested PPA (Contac (R)) beyond seventy two hours before their stroke, because the Court previously held that the plaintiffs' MDL experts could not meet the Daubert standard for admissible opinion evidence in cases in which plaintiffs ingested PPA beyond 72 hours before their stroke. See In re Phenylpropanolamine (PPA) Products Liability Litigation, 289 F.Supp.2d 1230 (W.D.Wash. 2003); and In re Phenylpropanolamine (PPA) Products Liability Litigation, (order granting summary judgment in part dated 05/04/2004) (J. Rothstein).
Three of Mr. Brown's children claim that he made statements to them individually that establish he took Contac (R) within seventy two hours of the onset of his stroke on July 25, 1995. First his son, David Brown, Jr., states Mr. Brown told him on July 22, 1995 he took Contac (R) earlier that morning for a cold. Mr. Brown's daughter, Monica Brown, states that on the morning of July 23, 1995, he told her that he had been taking Contac (R) for a cold. Lastly, another daughter, Angela ...