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In re Depakote H.B.

United States District Court, S.D. Illinois

October 20, 2017

IN RE DEPAKOTE H.B., a minor, by STACY BARTOLINI individually and as parent and next friend of H.B., Plaintiffs,


          NANCY J. ROSENSTENGEL United States District Judge

         Pending before the Court is a motion for summary judgment filed by Defendant Abbott Laboratories, Inc. (“Abbott”) directed at the claims of Plaintiff H.B. and his parent Stacy Bartolini. (Doc. 348). For the reasons set forth below, Abbott's motion for summary judgment is denied.

         Introduction & Procedural Background

         These Depakote cases involve a mass tort action in which numerous plaintiffs allege they sustained personal injuries from the use of Abbott's prescription drug Depakote.[1] On April 27, 2015, the Court selected the following three bellwether cases for trial: H.B. and parent Stacy Bartolini (12-CV-53), T.C. and parent Kayla McGuinness (12-CV-694), and E.R.G. and parent Christina Raquel (12-CV-55). (See Case No. 15-cv-702, Doc. 1). For case management and docket control purposes, the Court opened a new case number, 15-cv-702-NJR-SCW, for these three cases only (12-CV-53, 12-CV-694, 12-CV-55).

         In September 2017, Abbott filed a motion for summary judgment in the Bartolini case. (Doc. 348). At issue in this litigation is the adequacy of the 2004 Depakote warning label. Generally, Plaintiffs contend that the 2004 label failed to disclose important facts relating to the risk of spina bifida and other birth defects. Abbott contends that Maryland law governs in this case and that under Maryland law the warning label is reasonable as a matter of law.

         Factual Background

         Plaintiff H.B. was born with spina bifida, and other alleged physical and cognitive injuries, in December 2004. (Doc. 372, p. 2). Plaintiffs attribute H.B.'s injuries to the use of Abbott's drug Depakote by his mother, Stacy Bartolini (“Ms. Bartolini”), while pregnant with H.B. In the First Amended Complaint, Plaintiffs bring claims against Abbott under theories of strict products liability (Count I) and negligence (Count II). (Case No. 12-cv-53, Doc. 2-8, pp. 49-51).

         Dr. Stewart Bramson prescribed Depakote for Ms. Bartolini to treat her bipolar disorder. (Doc. 372, p. 2). Ms. Bartolini was a resident of Maryland when she was prescribed Depakote. The prescription of Depakote and Ms. Bartolini's consumption of Depakote occurred in Maryland. (Doc. 348, p. 3). On or around March 24, 2004, H.B. was conceived within the state of Maryland. Ms. Bartolini continued to use Depakote until that use was discontinued nine to fourteen weeks into the gestational period. (Doc. 372-3, p. 5); (Doc. 348, p. 3). Ms. Bartolini moved from Maryland to North Carolina in August 2004 (Doc. 348-3, p. 3), and she gave birth to H.B. in North Carolina, which is the state where H.B. was treated for his injuries. (Doc. 372-3, pp. 5-9).

         Abbott is incorporated in Delaware and has its principal place of business in Illinois. (Doc. 372, p. 3). Since 1984, Abbott's labeling for Depakote has contained information about the risk of spina bifida, and it has contained a Black Box Warning since 1996. (Doc. 348, p. 1). The 2004 FDA-approved Depakote label informed physicians that the incidence of spina bifida was 1-2%. (Doc. 348, p. 2). But the 2004 label at issue also “failed to disclose a major malformation rate for all birth defects caused by or associated with in utero Depakote exposure, indicat[ed] a similar association between Depakote and other AEDs, ” and failed to advise physicians to only prescribe Depakote as a drug of last resort for women of childbearing potential. (Doc. 372, pp. 3-4).

         Legal Standard

         Summary judgment is only appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014) (quoting Fed.R.Civ.P. 56(a)). Once the moving party has set forth the basis for summary judgment, the burden then shifts to the nonmoving party who must go beyond mere allegations and offer specific facts showing that there is a genuine issue of fact for trial. Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The nonmoving party must offer more than “[c]onclusory allegations, unsupported by specific facts, ” to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)). In determining whether a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A “court may not assess the credibility of witnesses, choose between competing inferences or balance the relative weight of conflicting evidence . . . .” Reid v. Neighborhood Assistance Corp. of Am., 749 F.3d 581, 586 (7th Cir. 2014) (quoting Abdullahi v. City of Madison, 423 F.3d 763, 769 (7th Cir. 2005)).


         I. What Law Governs the Reasonableness of the Warning Label?

         Federal courts sitting in diversity “use the whole law of the forum state, including that state's choice-of-law rules.” Malone v. Corr. Corp. of Am., 553 F.3d 540, 542 (7th Cir. 2009). Illinois applies its choice-of-law rules on an “issue by issue basis.” Smith v. I-Flow, 753 F.Supp.2d 744, 747 (N.D. Ill. 2010). The Court only needs to determine which law should apply in a matter when it will impact the outcome. Townsend v. Sears, Roebuck & Co., 879 N.E.2d 893, 898 (Ill. 2007). Abbott asserts Maryland law governs the reasonableness standard for warning labels. (Doc. 348, p. 3). Abbott states H.B. “was conceived and developed spina bifida in Maryland, which is the state in which Stacy Bartolini was prescribed Depakote by a Maryland doctor and took Depakote.” (Doc. 348, p. 3). There is no dispute in this case that spina bifida occurs within approximately the first twenty-eight days of gestation. There is also no dispute that from the first prescription of Depakote to H.B.'s mother, through the first twenty-eight days of gestation, Ms. Bartolini resided in Maryland. Nevertheless, Plaintiffs claim either North Carolina or Illinois law should govern this matter. (Doc. 372, p. 6). This ...

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