The opinion of the court was delivered by: Judge Castillo
PLAINTIFF'S MOTION FOR APPLICATION OF COLLATERAL ESTOPPEL AND BRIEF IN SUPPORT
Plaintiff Randi Kunnemann hereby files her Motion for Application of Collateral Estoppel and Brief in Support and would show the Court as follows
Plaintiff has asserted claims against Defendants for negligence and strict product liability based on a manufacturing, marketing and design defect in Defendants' 100 microgram Duragesic fentanyl pain patch. The evidence demonstrates that 27 year-old Karin Kunnemann died when her Duragesic patch malfunctioned and gave her a lethal dose of fentanyl. Among the evidence supporting this conclusion is the autopsy performed by Dr. Harkey, the opinions of Dr. Michael Baden, the opinions of Dr. Cheryl Blume and the opinions of Michael Anisfeld.
Plaintiff's warning defect claim is based in part on the allegation that the package insert in effect at the time of Kunnemann's death did not properly warn of the possibility of leaking patches and the dangers associated with such leaks. In a prior federal court lawsuit involving these same Defendants, the jury concluded that the Defendant's Duragesic pain patch contained a marketing defect based on a failure to warn about foreseeable dangerous patch leaks. The jury's finding was incorporated into a final judgment in favor of the plaintiff in that case. The judgment was never appealed nor set aside. As set forth more fully below, the Court should invoke the doctrine of collateral estoppel, enter an order that Defendants are precluded from relitigating in this case the existence of a warning defect in the Duragesic patch that killed Karin Kunnemann and enter an order instructing the jury as a matter of law that such patch was defective due to inadequate warnings.
Plaintiff's warning defect claim is based in part on the allegation that the package insert in effect at the time of Kunnemann's death did not properly warn of the possibility of leaking patches and the dangers associated with such leaks. In Plaintiff's First Amended Complaint, attached hereto as Exhibit 1, Plaintiff alleged that Kunnemann's Duragesic patch was unreasonably dangerous because of Defendants' defective design, manufacturing and marketing. Id. at ¶¶ 19-20. In his Answers to Defendant Alza Corporation's First Set of Interrogatories, attached hereto as Exhibit 2, Plaintiff further stated:
Plaintiff states that Defendants and their agents and employees failed to provide adequate warnings with the Duragesic patches rendering them unreasonably dangerous and unfit for the ordinary purposes for which they were intended, in breach of warranty. This failure to warn includes but is not limited to: the failure to warn the consumer that there had been prior leaks with these patches; . . . that the risk of death as a result of these leaks was substantial; . . . that Defendants knew or should have known that the risk of leak was statistically relevant and required sufficient, clearly marked, visible and accessible warnings.
In Case No. 05-CV-81116-CIV-HURLEY in the United States District Court for the Southern District of Florida, styled Lee Hendelson, as Personal Representative of the Estate of Adam Hendelson, Deceased v. Alza Corporation and Janssen Pharmaceutica ("Hendelson"), the Plaintiff brought suit against the Defendants alleging that the death of Adam Hendelson was caused by a defective Duragesic fentanyl pain patch. The claims against Defendants were for negligence and strict liability for manufacturing, design and marketing defects. The Hendelson case involved the same issue that is present in the above-entitled case in this Court relating to the defendants' failure to warn. Exhibit 3 at ¶5. In this regard, in the Hendelson case, the plaintiff asserted that the warnings provided with the Duragesic patch were inadequate, defective, and negligent in that they failed to warn of dangerous leaking patches being sold by defendants. Id. The warnings (i.e., package insert) at issue in the Hendelson case were the exact same warnings (i.e., package inserts) involved in this case, word for word. Id. The jury in the Hendelson case was given a set of special interrogatories and answered "yes" to the following question:
"Did defendant Alza Corporation place the Duragesic patch on the market with a warning defect due to failure to warn about foreseeable dangerous patch leaks which was a legal cause of damage to the plaintiff, Lee Hendelson, as Personal Representative of the Estate of Adam Hendelson?"
Id. at ¶6. A true and correct copy of the jury's verdict form is attached hereto as Exhibit 3-A. The jury's finding was incorporated into a final judgment in favor of the plaintiff in that case, a true and correct copy of which is attached hereto as Exhibit 3-B. The ...