United States District Court, S.D. Illinois
IN RE DEPAKOTE H.B., a minor, by STACY BARTOLINI individually and as parent and next friend of H.B., Plaintiffs,
ABBOTT LABORATORIES, INC., Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge
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.
& Procedural Background
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. 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,
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.
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.
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).
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).
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)).
What Law Governs the Reasonableness of the Warning
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 ...